The court considered reformatory theory and lack of criminal antecedents in reducing the substantive sentence of imprisonment.

JUDGMENT

Sanjay Vashisth, J. - Appellant - Naresh Kumar, aged about 28 years (at the time of conviction), has filed the present appeal challenging judgment of conviction and order of sentence dated 02.12.2004, passed by learned Presiding Officer, Special Court, Kurukshetra, in Sessions Case No.33/2004 of 2002, arising from FIR No. 182, dated 16.04.2002, under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act'), registered at Police Station Sadar Thanesar, Kurukshetra.

2. On 16.04.2002, ASI Kartar Singh along with other police officials posted in CIA Staff-II, Kurukshetra, on a patrol duty were proceeding in a Govt. Jeep No.HR-07E-1616, driven by C. Jagbir Singh towards village Samani on the GT Road. When they reached near Khalsa Dhaba on GT Road in the area of village Samani, they saw a man was trying to escape from rear door of the said Dhaba, and was briskly proceeding towards the fields behind the Dhaba with a gunny bag on his head. On suspicion, he was apprehended by the police party and notice under Section 50 of the NDPS Act (Ex.PG) was served upon him, and the accused opted to be searched before any gazatted officer. The accused along with said gunny bag was then taken to the residence of Anil Kumar Dhawan, DSP (HQ), Kurukshetra. Thereafter, on the direction of DSP, search of said gunny bag was conducted, which resulted into recovery of poppy husk. After preparing a separate sample of 250 grams of poppy husk, remaining was found to be 38 kilograms including the gunny bag. Thereafter, sample as well as the residue were converted into sealed parcels and taken into possession vide recovery memo Ex.PF, duly attested by witnesses including DSP (HQ), Kurukshetra. Accused was arrested after serving him with arrest memo Ex.PJ and information memo Ex.PH, was also prepared. After completing the investigation and receipt of FSL Report (Ex. PE), seized contraband was declared that of poppy straw. Accordingly, appellant - Naresh Kumar, was put to trial. He was charged for the offence punishable under Section 15 of the NDPS Act, vide order dated 20.08.2002. Eventually, learned Trial Court held the appellant guilty of the offence, vide judgment of conviction dated 02.12.2004 and vide separate order of sentence of even date i.e. order dated 02.12.2004, he was sentenced as under:-

3. Appeal was admitted on 02.05.2005. Thereafter, vide order dated 16.05.2005, after noticing the factum of total undergone period inside jail, remaining sentence of the appellant was suspended by this Court.

4. At the final hearing of the appeal today, learned counsel for the appellant submits that he has got instructions from his client, not to challenge the judgment of conviction dated 02.12.2004, passed by learned Presiding Officer, Special Court, Kurukshetra. However, on the question of quantum of sentence, learned counsel for the appellant submits that appellant being first offender & sole bread earner for his family; being aged about 47 years at present; there being no other case ever registered against him, except the present one; already 08 months and 25 days of actual sentence period has been undergone by the appellant in jail; and that appellant is facing agony of criminal prosecution for the last about 22 years, by taking a lenient view, remaining substantive sentence of imprisonment of the appellant may be reduced to the period already undergone by him in jail.

5. On the other hand, Mr. Pawan Kumar Jhanda, learned Assistant Advocate General, Haryana, while opposing the submissions addressed by learned counsel for the appellant, submits that prayer of the appellant should not be accepted because he was involved in a serious case, offence of which is a crime against society. Learned State counsel also furnished custody certificate dated 21.02.2023, today in the Court, which is taken on record. As per said custody certificate, ap