AAZAD NATH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Accused-appellant Aazad Nath son of Shri Chandgi Ram has preferred this criminal jail appeal through Superintendent, Central Jail, Bharatpur, challenging the judgment and order dated 13.03.2003 of his conviction and sentence passed by the SpecialJudge, NDPS Cases, Gangapurcity, in Case No. 5/.2003, whereby he was convicted and sentenced under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the Act' 1985) to ten years rigorous imprisonment and a fine of Rs. 1,00,000/- in default of payment of fine, to further undergo three years rigorous imprisonment. The accused-appellant was also convicted under Section 137 of the Indian Railways Act, 1989 to six months' simple imprisonment. Both the sentences were ordered to run concurrently.

(2.) Shri Vijay Singh Shekhawat, the learned Amicus Curiae on behalf of accused- appellant, contended that Amrit Lal (PW. 3), who checked the accused- appellant in the train was not authorised to do so. There is violation of mandatory provisions of Section 42 of the Act, 1985 in the present case. Constable Inder Raj Singh has not been examined by the prosecution. The learned Amicus Curiae also contended that there is violation of Section 57 of the Act, 1985. The recovery witnesses have been declared hostile, therefore, recovery of contraband article itself is not proved in the present case. He lastly contended that the date of occurrence in the present case is 5.10.2001 whereas Section 18 of the Act, 1985 was amended by the Parliament by Act 9 of 2001 which came into force with effect from 02.10.2001. Whereby it has now been provided that where the contravention involves commercial quantity the accused shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and in any other case, with rigorous imprisonment which may extend to ten years and with fine which may extend to one lakh rupees.

(3.) The learned Amicus Curiae contended that as per Table published vide Notification, the small quantity of the opium in Column No. 5 has been mentioned as 25 grams and the commercial quantity has been mentioned as 2.5 kilogram whereas in the present case the total contravention recovered is only 400 gram for which no minimum sentence of imprisonment is provided and maximum sentence provided is ten years whereas the accused-appellant has already remained in custody for more than four-and-half years as he is in custody since 06.10.2001, therefore, in the submission of the learned Counsel for the accused-appellant his sentence of imprisonment may be reduced to a period of sentence of imprisonment already undergone by the accused-appellant. He also requested to reduce the amount of fine which has been imposed by the trial Court.