JUDGMENT :

Kirti Singh, J.

Instant appeal has been directed against the judgment of conviction and order of sentence dated 11.12.2006 passed by Special Court (under The Narcotic Drugs and Psychotropic Substances Act, 1985) (hereinafter referred to as 'NDPS Act') Amritsar, whereby the appellant-accused have been held guilty for commission of offence punishable under Section 21 of NDPS Act and sentenced to undergo rigorous imprisonment for a period of 04 months and also sentenced to pay fine of Rs.200/- with default stipulation.

Factual Matrix

2. The facts in brief of the case which emerged from the record are that on 03.01.2002 SI Baldev Singh along with other police officials were present at T Point where he received secret information that all the three persons were involved in the sale of smack on Hero Honda motor cycle bearing registration No.PB-02-U-6274. The accused were selling smack in the area of Putlighar, Amritsar and if the raid is conducted then they could be apprehended. Relying upon this information the ruqa was recorded and it was dispatched to the Police Station. At about 3:00 p.m. the aforesaid motor cycle came on G.T. Road from the side of Islamabad and a Naka was raised at Putlighar and the motor cycle was signalled to stop. The person riding the motor cycle revealed his identity as Tarlochan Singh @ Tochi and the other two persons sitting behind him revealed their identity as Rajbir Singh @ Bau and Sukhwinder Kaur @ Sukhi. SI Baldev Singh told the accused that it is suspected that they are carrying some narcotic and their search and that of the motor cycle is to be conducted. He further asked the accused if they wanted to get themselves searched in the presence of a Gazetted Officer or Magistrate, whereupon the accused opted to be searched in the presence of a Gazetted Officer. Accordingly, non-consent memos of the accused was prepared and DSP Charanjit Singh was requested to arrive at the spot, who on his arrival, disclosed his identity to the accused. The accused reposed faith upon the DSP and opted to be searched in his presence and accordingly their consent memos were prepared. The search of the accused was conducted but nothing incriminating was recovered. From the search of Dicky of the motor cycle, smack wrapped in a glazed paper was recovered out of which 5 grams was separated as sample and the remaining on weighing was found to be 6 grams which was converted into separate parcels and sealed with the seals bearing impressions "BS" and "CS". The incriminating articles along with the motor cycle and one mobile phone were taken into possession vide separate recovery memos.

3. After completion of investigation, challan against the accused persons were presented in the Court. From the perusal of the report under Section 173 Cr.P.C., a prima facie case punishable under Section 21 of the NDPS Act was made out against the accused persons and they were charge-sheeted thereunder to which they pleaded not guilty and claimed trial.

4. In order to prove its case, the prosecution has examined 6 witnesses, besides producing documentary evidence. Statement of the accused persons under Section 313 Cr.P.C. have also been recorded but no evidence in defence has been led by them.

Submissions by learned counsel for the parties

5. At the very outset, learned counsel for the appellants restricted his arguments to the extent of sentence and did not opt to assail the finding of conviction. He further submitted that the appellants-accused have faced the agony of protracted trial for about 17 years. During the trial, they remained on bail, however, they did not misuse the concession of bail. He further submitted that the appellants are not involved in any other criminal case and are now around 39 and 63 years old respectively and no purpose will be served by sending them behind bars after about 17 years. They have already mended their ways of life and joined the mainstream of society. Therefore, he prayed that the appeal be partly al