Ijajuddin v. The State

1. Whether the Reporters of local papers may be allowed to see the judgment? No

2. To be referred to the Reporter or not? No

3. Whether the judgment should be reported in the Digest? No: V.K. JAIN, J. (ORAL)

1. This is an appeal against the Judgment dated 3rd December, 2004 and Order on Sentence dated 7th December, 2004, whereby the appellant was convicted under Section 21(b) of NDPS Act and was sentenced to undergo RI for 7 years and to pay fine of Rs.50,000/- or to undergo SI for 6 months in default.

2. The case of the prosecution is that on 11th July, 2002, the appellant and one more person, who was accompanying him, were apprehended on the western corner of petrol pump near Dayal Singh College and on search of the appellant, 200 gms of heroin was recovered. 2010:DHC:271

3. During trial, the prosecution examined 10 witnesses in support of his case. One witness was examined in defence. PW-2 Head Constable Kuldeep Singh stated that on 11th July, 2002, the appellant accompanied by his co-accused Nafees, who has been acquitted by the Trial Court, was apprehended near Dayal Singh College and on his search, 200 gms of heroin was recovered from the right side back of the pant, which he was wearing. The deposition of PW-2, as regards the recovery of the heroin was corroborated by PW-3 Dilwar Singh, who was also a member of the raiding party, that arrested the appellant. PW-7 SI Kuldeep Singh has also stated that the appellant was arrested from near Dayal Singh College on 11th July, 2002 on receipt of a secret information and 200 gms heroin was recovered from the back of his pant.

4. In his statement under Section 313 Cr.P.C., the appellant denied the recovery of heroin from him and stated that he had been implicated at the instance of one Ramzan. He also examined one Mohd. Yunus in his defence, who stated that on 11th July, 2002, a person had come to their house and had taken the appellant on the pretext of some work.

5. The learned counsel for the appellant states that considering the evidence produced against the appellant during trial, he does not dispute his conviction under Section 21(b) of NDPS Act and only seeks reduction of the substantive sentence and the fine imposed on him.

6. Section 21(b) of NDPS Act, after its amendment w.e.f 2nd October, 2001, to the extent it is relevant provides that where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, the accused would be liable to imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupee. The appellant having been arrested and the heroin having been recovered from him on 11th July, 2002, much after the amendment coming into force, he would get the benefit of amended provision. Since 200 gms of heroin was recovered from the appellant, the quantity involved was more than small quantity, which is 5 gms and less than commercial quantity, which is 250 gms.

7. The appellant has also spent about three years in jail. Taking into consideration all the facts and circumstances of the case, the appellant is sentenced to undergo RI for the period already spent by him in the jail and also sentenced to pay fine of Rs.25,000/- or to undergo SI for six months in default. The appellant is granted four weeks time to deposit the fine. The file be sent back alongwith the copy of this judgment. The Trial Court shall take steps to commit the appellant to judicial custody to undergo the sentence imposed upon him in default of payment of fine, if the amount of fine is not deposited by him within four weeks from today.

(V.K.JAIN)

JUDGE JANUARY 19, 2010 bg