Satish Kumar Mittal, J.
Appellant Ruldu Ram has filed the instant appeal against the judgment and order dated 23.12.2005 and 24.12.2005, respectively, rendered by Special Judge, Gurdaspur, in Sessions Case No. 16 of 2004. By the said judgment, the trial court convicted the appellant and his co-accused Anup Gupta under Section 21 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as `the NDPS Act') and vide order dated 24.12.2005, both of them were sentenced to undergo rigorous imprisonment for 12 years, with a fine of Rs. 1,00,000/- each under Section 21 of the NDPS Act. In default of payment of fine, the defaulting convict was directed to further undergo rigorous imprisonment for one year.
2. In the present case, on 2
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4.8.2003, when the police party headed by SI Paramjit Singh (PW.2) was holding a `nakabandi' at Amritsar bye pass in connection with general checking, it received a secret information that one Ruldu Ram was to receive a consignment of smack from Rajasthan through one Anup Gupta. On receiving the said information, SI Paramjit Singh went to Jalandhar bye pass for the purpose of holding a special `naka'. While on their way, the police party spotted two persons coming out of a deserted brick kiln. On seeing the police party, both those persons immediately turned back, thereby raising a suspicion in the minds of the police party. SI Paramjit Singh then stopped those two persons and apprehended them. On enquiry, they disclosed their identity as Ruldu Ram (appellant) and Anup Gupta (co-accused of appellant). They were suspected to be in possession of some drugs. SI Paramjit Singh asked them as to whether they desired to get themselves searched by a Gazetted Officer or by a Magistrate. Both of them expressed their desire to get themselves searched by a Gazetted Officer. Accordingly, a wireless message was sent to DSP Narinder Kumar Bedi (PW.1) with a request that he should reach the spot, where appellant Ruldu Ram and his co-accused Anup Gupta had been apprehended. After some time, DSP Narinder Kumar Bedi reached the spot and he again asked both the persons as to whether they would like to get themselves searched by him or by a Magistrate. They had consented to be searched by DSP. During the search, one kilogram of brown sugar was recovered from the possession of the appellant, which he had concealed in a glazed paper from a yellow colour `parna' tied by him around his waist. On personal search of Anup Gupta, half a kilogram of brown sugar wrapped in a glazed paper was recovered from an attaichi-case, which he was holding in his right hand. 10 grams each of brown sugar were separated out of both the recoveries, as samples, and their parcels were prepared. Separate parcels of the remaining 990 grams of brown sugar, recovered from appellant Ruldu Ram, and 490 grams of brown sugar, recovered from his co-accused Anup Gupta, were prepared. All the parcels were sealed with the seals of SI Paramjit Singh and DSP Narinder Singh Bedi. The two sample parcels were sent to the Chemical Examiner for analysis. As per the report of Forensic Science Laboratory, Punjab, Chandigarh (Ex.PM), these samples contained 4.9% and 5% Dyecetyle Morphine.
3. After completion of investigation, the challan was filed against the accused and charge under Section 21 of the NDPS Act was framed, to which they did not plead guilty and claimed trial.
4. The accused were tried together by the court of Special Judge, Gurdaspur and vide impugned judgment and order, they were convicted and sentenced, as indicated above.
5. Aggrieved against the aforesaid judgment and order, accused Anup Gupta filed Criminal Appeal No. 537-DB of 2006, which was decided by a Division Bench of this Court on 7.5.2008. By that time, appellant Ruldu Ram did not file the appeal.
6. On 7.5.2008, while deciding Division Bench of this Court upheld the judgment of the trial court to the extent that accused Anup Gupta was guilty of the offence punishable under Section 21 of the NDPS Act. However, it was not accepted that he was in possession of `commercial quantity' of the narcotic drug/psychotropic substance recovered from him. This finding was recorded on the basis of the report of the Forensic Science Laboratory, Punjab, Chandigarh, according to which the quantity of dyecetyle morphine in two samples was 4.9% to 5%. From this percentage, it was taken that since the component of heroin/ deycetyle morphine recovered from accused Anup Gupta was only 25 grams, which was neither less than 5 grams nor more than 250 grams, therefore, the said recovery was more than the prescribed small quantity but less than the prescribed commercial quantity. Thus, it was held that he (Anup Gupta) was possessing only 25 grams of heroin, falling within the ambit of non-commercial quantity under section 21 (b) of the NDPS Act. Accordingly, the sentence awarded to accused Anup Gupta was modified to the extent that he was ordered to undergo rigorous imprisonment for a period of six years and to pay a fine of Rs. 25,000/-, and in default of payment of fine to undergo rigorous imprisonment for one year.
7. The instant appeal was filed after the delivery of the aforesaid judgment.
8. Learned counsel for the appellant argued that he does not challenge the recovery of one kilogram of brown sugar from the possession of the appellant. He has argued that in view of the judgment delivered in the appeal filed by co-accused Anup Gupta as well as the report of the Forensic Science Laboratory, Punjab, Chandigarh, wherein quantity of dyecetyle morphine in two samples was found to be 4.9% to 5%, the quantity of heroin found in possession of the appellant should not be treated as one kilogram, but should be treated as 50 grams, which is more than 5 grams but less than 250 grams, which falls within the ambit of non-commercial quantity under section 21 (b) of the NDPS Act. He further argued that the appellant has already undergone more than six years of actual sentence and during his custody, one of his legs had to be amputated. He is more than 50 years of age. Therefore, he should be awarded the same sentence, as has been awarded to his co-accused Anup Gupta.
9. Learned counsel for the respondent-State, on verification from the concerned authorities, has stated that the judgment of the Division Bench of this Court in Crl. A. No. 537-DB of 2006 has been upheld as the SLP against the same has been dismissed by the Hon'ble Supreme Court. He has also confirmed that during the custody period, one leg of the appellant was to be amputated, due to which he has become handicapped. During the course of arguments, learned counsel for the respondent-State has admitted that if the contents of dyecetyle morphine are to be taken as per the report of the Forensic Science Laboratory, Punjab, Chandigarh, then the appellant is deemed to be in possession of 50 grams of heroin, which falls within the ambit of non-commercial quantity.
10. In view of the aforesaid factual position, the judgment of conviction qua the appellant is upheld and keeping in view the fact that the appellant has already undergone more than six years of sentence, the order of sentence is modified to the extent that the sentence of imprisonment is reduced to the period already undergone and the sentence of fine of Rs. one lac is reduced to Rs. 25,000/-, in default of payment of which the appellant shall undergo rigorous imprisonment for one year, for having been found in possession of 50 grams of heroin, falling within the ambit of noncommercial quantity, under section 21 (b) of the NDPS Act.
11. Accordingly, the appeal stands disposed of in the aforesaid terms.
Appeal disposed of