NAGESWAR S/O RAMCHANDRA Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal has been filed by the appellant Nageshwar being aggrieved by the judgment dated 29.11.2006 passed by Special Judge (N.D.P.S.) Act, Ratlam in Special Case No.50/2001 convicting the accused for offence under Section 18 (B) of the N.D.P.S. Act and sentencing him to undergo 10 years RI with fine of Rs.1 lac, in default of payment of fine the appellant was to undergo one year SI.

(2.) Brief facts of the prosecution are that on the date of the incident i.e.23.07.2001 the inspector Mohammed Aslam and S.K. Sinha received information in the office of the District office Officer, IInd Division, Jaora that man called Nageswar son of Ramchandra aged 20 years resident of Lasudawan, P.S. Afjzalpur, Distt. Mandsaur describing him wearing white pant and white shirt would deliver 5.500 kilograms of opium at 4 to 5 pm at Jaora Bus Stand and the information was duly noted by this officer and sent to the Office of the Superintendent. Thereafter calling independent witnesses and informing them collecting the investigating materials, raid was conducted. The accused was coming with the alleged contraband in his hand carrying a sack and was stopped by officers and he was informed of the information. They also informed about him of his rights to be examined by a gazetted officer or a Magistrate. He gave his consent to be examined by the officer. On examination of the sack, it contained plastic bag of some black material. The same was examined by the police force and on tasting and smelling, it was found to be opium. On measuring it contained 5.500 kilograms of opium and 25 grams of two samples were removed duly sealed and sent for chemical examination. Rest of the opium was duly closed and sealed with the official seals and deposited in the malkhana and seizure memohad been duly prepared. All the procedures were duly followed under Section 57 of the NDPS Act and crime was registered. The accused was apprehended. The accused took up the defence that he was going to fetch his sister when near Dodar the Narcotics Department Officials caught hold of him and falsely implicated him. He, however, did not examine any witness in his defence. The Trial Court on considering the evidence, convicted and sentenced him and hence the present appeal. Being aggrieved by his conviction the appellant has filed the present appeal.

(3.) The main bone of contention according to the Counsel for the appellant is that provisions of Sections 42 and 50 have not been followed by the investigating agency that the witnesses of seizure have not supported the prosecution case. To bolster his submissions, he placed reliance in the matter of Shantilal vs. State of M.P., 2008 CrLJ 386whereby the Apex Court has held that the term of imprisonment in default of payment of fine is not a sentence. It is a penalty which a person incurs on account of non-payment of fine. On considering the facts and circumstances of accused appellant, the Apex Court held that if the Court finds that since the accused is a poor person and the fact that in the said case he was only a carrier and had to maintain his family and it was his first offence and the Apex Court had reduced the sentence in default of payment of fine from three years to six months rigorous imprisonment to meet the ends of justice. Hence, Counsel has prayed that the similar benefit be granted to the accused/appellant.