The court has the discretion to reduce a sentence based on the time already served and the overall circumstances of the case.

JUDGMENT

Manoj Kumar Garg, J. - Instant criminal appeal has been filed by the appellant under Section 374(2) Cr.P.C. against the judgment dated 31.03.2011 passed by learned Special Judge, NDPS Act Cases, Jodhpur in Sessions Case No. 53/2005 by which the learned Judge convicted the appellant for offence under Section 8/15 of NDPS Act and sentenced him to undergo two years' R.I. alongwith fine of Rs.1,000/- and in default of payment of fine to undergo one month's R.I.

2. Brief facts of the case are that in view of a secret information, the police reached at Diesel Barrel Point of Bus Stand Khara, where the appellant was present and in search the Police recovered 48 kgs poppy husk lying in 107 bags without permit or licence from a room of Barrel Point.

3. After usual formalities, the police registered a case against the accused-appellant for offence under Section 8/15 NDPS Act and started investigation. After completion of investigation, the police filed challan against the appellant for offence under Section 8/15 of NDPS Act. Thereafter, the charges of the case were framed against the appellant for offence under Section 8/15 of NDPS Act. He denied the charges and claimed trial.

4. During the course of trial, the prosecution examined 15 witnesses and exhibited some documents. Thereafter, statement of appellant under section 313 Cr.P.C was recorded and one witness was examined in defence.

5. Upon conclusion of the trial, the learned trial court vide impugned judgment dated 31.03.2011 convicted and sentenced the appellant for offence under Section 8/15 of NDPS Act as mentioned earlier.

6. At the threshold, learned counsel for the appellant does not challenge the finding of conviction but it is submitted that since the occurrence relates back to year 2004 and the appellant has so far suffered a sentence of more than three months out of total sentence of 2 years, therefore, it is prayed that the substantive sentence awarded to the appellant for the aforesaid offence may be reduced to the period already undergone by him. In support of his contention, learned counsel for the appellant relied upon judgment of this Court in the case of Mohammad Ali v. State of Rajasthan, 2013 4 CJ(Cri)(Raj) 1914 , Niyamat Ali Nemu v. State of Rajasthan,2013 4 CJ(Cri)(Raj) 1915 , Sher Singh vs. State of Rajasthan, (2016) 1 WLN(Raj) 156

7. On the other hand, the learned Public Prosecutor opposed the submissions made by the learned counsel for the appellant. The learned PP submitted that there is neither any occasion to interfere with the sentence awarded to the accused appellant nor any compassion or sympathy is called for in the said case.

8. Since the appellant's counsel does not challenge the appellant's conviction, this Court need not go into the merits of the case and accordingly, the conviction of the appellant as recorded by the learned trial court for the offence under Section 8/15 of NDPS Act is maintained.

9. I have perused the evidence of the prosecution as well as defence and the judgment passed by the trial court regarding conviction of the accused-appellant. It is not disputed that the appellant has so far undergone a period of more than three months incarceration out of the total two years' rigorous imprisonment so also suffered the agony and trauma of protracted trial. Thus, looking to the over-all circumstances and the fact that the appellant has remained behind the bars for considerable time, it will be just and proper if the sentence awarded by the trial court for offence under Section 8/15 of NDPS Act is reduced to the period already undergone by him while maintaining the amount of fine in the sum of Rs. 1,000/-.

10. Accordingly, the appeal is partly allowed. While maintaining the appellant's conviction and sentence for offence under Section 8/15 of NDPS Act, the sentence awarded to him is reduced to the period already undergone, however the amount of fine is hereby maintained. In default of payment of fine, the appellant shall undergo one month'