SHAFIK MOHD @ SHAFI BABA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal has been filed against the judgment dated 19.7.2007 passed by the learned Special Judge, N.D.P.S. Cases, Baran in Seisions Case No. 149/2004 whereby the accused-appellant has been convicted for the offence under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act (in short, The N.D.P.S. Act') and sentenced to six years rigorous imprisonment and a fine of Rs. 25,000/-, in default of payment of fine to undergo further six months rigorous imprisonment.

(2.) Necessary facts for the disposal of the present appeal are that the accused was apprehended under suspicious circumstances by the police petrolling party of Police Station Baran on 21.11.2004 near railway track, Baran. On asking about his identity, he disclosed his name as Shafi Mohammad. At that time accused was carrying a bag on his shoulder. It was thought proper to take search of the person of the accused and the bag. One of the police constable Phool Chand was directed to arrange for independent witnesses but nobody prepared to become independent witness, as such two persons namely Bhupendra Singh and Karan Singh were made independent witnesses. On search of the bag, in two plastic bags contraband material was found. On testing by the police party, it was found to be 'ganja'. The total weight of the contraband material recovered was found 4 kg 450 gm. Out of the recovered contraband material, two samples of 50 gins. each were drawn and marked as 'Al' and 'A2' and remaining contraband material was also kept in a small white cloth bag and marked as 'A'. Before taking search of the bag, Dilip Singh PW-9 gave a search to the deputed independent witnesses from the police party and also took search of them. After completing necessary investigation at the spot, the police party on returning to the Police Station lodged F.I.R. No. 715/2004. The samples and the recovered material were deposited in the malkhana. The accused was arrested. The investigation was handed over to Bhanwar Singh. After completion of investigation, charge-sheet was filed by PW-10 Rajendra Singh before the Court of Special Judge, N.D.P.S. Cases. The learned trial Court framed charge under Section 8/20 of the N.D.P.S. Act to which the accused denied and claimed trial. In all 11 witnesses were produced by the prosecution in support of its case. In the statement recorded under Section 313 Cr.P.C., the accused denied the case of the prosecution and stated that at a little distance from the place where he was sitting on the day of incident, a bag was lying on the earth that was taken by the police, he was also caught hold by the police, taken to the Police Station and a false case was registered against him. No evidence in defence was produced. Learned trial Court after hearing both the sides convicted and sentenced the accused as aforesaid. Hence, this appeal has been filed.

(3.) The learned counsel for the appellant has not challenge the conviction recorded by the learned trial Court. He submits that the sentence which has been recorded against the accused appellant is too excessive. It is also contended that the accused is only bread earner of his family. It is contended that he is in jail for about 18 months, therefore, lenient view be taken in the matter. It is also contended that the accused is not a previous convict and is having no criminal antecedents. The family of the accused is being ruined because of this case.