Judgment · High Court · 2012

#5. On the basis of the materials and evidence on record and the sub missions of the learned counsel for the parties, the learned Special Judge convi cted and sentenced the present accused appellant as stated earlier while the oth er two co-accused, namely, Montaz Ali and Monwara Begum were acquitted.

#6. Mr. Ghosh, learned counsel submits that admittedly the police re covered/seized 1gm 750 milligram of suspected heroin from the possession of the appellant and according to him it is a small quantity within the meaning of Sect ion 2 (XXIII A) of the NDPS Act, 1985 and notification dated 19th October, 2001 specifying small quantity and commercial quantity. Item 56 of the table appended to the said notification relates to heroin/smack in respect of which small quan tity is upto 5 gms. The punishment prescribed u/s 22(a) under the NDPS Act for p ossession of small quantity of heroin is rigorous imprisonment for a term which may extend to 6 (six) months or with fine which may extend to Rs. 10,000/- (Rupe es ten thousand) or with both. He, therefore, submits that on the admitted fact of recovery of 1 gm 750 milligram of heroin, the learned trial court cannot impo se punishment of 10 years and fine of Rs. 1 lac and, as such, the same is liable to be quashed or modified. With the assistance of Mr. K. Munir, learned Additional P.P. I h 7. ave verified from the Seizure List, Ext. 5 that the police seized 1gm 750 millig ram of suspected heroin in presence of three witnesses. They were not examined a s seizure witnesses by the prosecution to prove the fact of seizure of the alleg ed contraband article from the possession of the appellant. This a serious lapse on the part of the prosecution and under such circumstances the prosecution can not claim that it has been able to prove that the contraband article was recover ed from the possession of the appellant. There is no explanation whatsoever from the prosecution why it has withheld the independent seizure witnesses. On the o ther hand, it is found from record that two other co-accused persons were acquit ted for want of evidence and also on the ground that the search was not conducte d as per the procedures laid down u/s 42 and 50 of the NDPS Act. It has also bee n found from record that PWs 1, 2 and 3, seizure witnesses, in respect of Ext. 1 i.e. relating to alleged seizure of contraband article from the house of co-acc used Shri Montaz Ali and Monwara Begum, declined to support the prosecution case and they were declared hostile. They clearly stated that they put their signatu res on a piece of blank white paper and they were not aware about any seizure of alleged contraband article. If it is found so, the Court can cast serious doubt on the seizure of the alleged contraband article from the possession of the pre sent appellant also inasmuch as, as stated earlier, the prosecution did not prod uce and examine the aforesaid independent witnesses, who signed the Ext. 5, Seiz ure List.

#8. In the aforesaid facts and circumstances, even assuming that the prosecution seized the aforesaid quantity of contraband article, which has been tested positive, is accepted and found proved, there is no justification in han ding down sentence of R.I. for 10 years with fine of Rs. 1 lac as has b een done on the petitioner by the learned Special Judge for the small quantity o f the contraband article which is only 1gm 750 milligram, which is admittedly a small quantity within the meaning of the Circular issued by the Government under the provision of Section 52 of the NDPS Act.

#9. In view of the above discussions, the conviction of the accused appellant is upheld with modification in the sentence to the effect that his co nviction would be converted to the period already undergone.

#10. It is stated by Mr. Ghosh, learned counsel that the appellant wa s behind the bar for 156 days during trial and served in jail for 67 days after conviction which comes to 223 days i.e, 7 months, 13 days. The appellant is on b ail as per order dated 20.12.2004 passed by this Court in Misc. Case No. 537/200 4. This appeal stands allowed with modification in the sentence as indicated abo ve. The bail bond stands discharged.

#11. Return the LCR forthwith.