RAFIQ MOHAMMAD Vs. STATE OF M P

JUDGEMENT

(1.) This appeal under Section 374 Cr.P.C. has been filed by accused-appellants Rafiq Mohammad, Firoz Khan and Aziz Khan being aggrieved by the judgment dated 14.07.2004, passed by Ku. Karuna Trivedi, Special Judge (N.D.P.S. Act), Mandsaur in Special Sessions Trial No. 18/2002, by which the appellants have been convicted under Section 8/21(C) read with Section 29 and 8/18(B) of the N.D.P.S. Act (for short 'the Act') and sentenced to undergo RI for 10 years with fine of Rs.1,00,000/- and in default of fine each of them to undergo further RI for two years.

(2.) As per prosecution story, on 16/01/2002, Inspector Vijay Shankar Kumar and D.D. Kethvas posted at District Opium Office, Mandsaur received an information that accused Firoz Khan was carrying contraband along with him. On receiving the information, they reached at Railway Station Mandsaur and found accused Firoz standing with a briefcase near the Book Stall. During search, 5 Kgs opium and other contraband were seized from his possession of which 2 samples were taken. In three separate bags, 1 Kg heroin was found and from other two bags formula to make 1.480 Kg of heroin was found. The said contraband was seized. The statement of accused Firoz Ex-P/11 was recorded wherein he deposed that the briefcase was given to him by his father Aziz Khan who received the same from the accused Rafiq for sale and transportation. On the basis of his statement, accused accused Aziz Khan was arrested on 17/01/2002 and his statement Ex-P/18 was recorded, but in his statement he has denied that the briefcase was given to him by accused Rafiq. Thereafter, on 3/09/2002, accused Rafiq was arrested. After completion of investigation, challan was filed and after trial the present appellants have been convicted and sentenced as mentioned herein-above.

(3.) It has been argued on behalf of the appellants that he only wants to assail the sentence awarded in default of payment of fine. It is submitted that there is no provision in the N.D.P.S. Act to award sentence in default of payment of fine, hence, it is illegal and should be quashed and the appeal be accepted.