Point of Law: in operating the sentencing system, law should adopt corrective machinery or deterrence based on factual matrix. Facts and given circumstances in each case, nature of crime, manner in which it was planned and committed, motive for commission of crime, conduct of accused, nature of weapons used and all other attending circumstances are relevant facts which would enter into area of consideration

JUDGMENT :

AJIT SINGH, J.

1. Heard Sri. Mukesh Kumar, learned counsel for the appellant and learned A.G.A. for the State and perused the record.

2. This criminal appeal has been filed against the judgment and dated 14.02.2019 passed by Additional Sessions Judge 9th, Kanpur Nagar, in S.T. No. 1035 of 1998 (State vs. Mohd. Javed), arising out of Case Crime no. 326 of 1996, under Section 18/20/21 of N.D.P.S. Act, P.S. Naubasta, District Kanpur Nagar, whereby learned Judge convicted and sentenced the appellant to five years rigorous imprisonment under Section 18-C of N.D.P.S. Act with a fine of Rs. 25,000/- and in default of payment of fine, further additional imprisonment for three months.

3. The prosecution story in brief is that on 18.04.1996 Sri. Uday Pratap Singh SHO along with some other police personnel were on patrolling duty in search of wanted criminals near Gopal Nagar bypass, suddenly two persons were seen coming together on scooter no. UMY-371 from Gopal Nagar and when they saw the police jeep they started running towards back side. On suspicion, the police party chased them and caught hold the suspected persons before gopal nagar tri crossing adjacent to ara machine of Ram Dhani Sharma. After catching the suspected persons the police enquired about running away after seeing the police personnel then the suspected persons admitted that they were having smack and poppy straw. When the police asked them whether they are interested to search by a Gazetted Officer then the accused persons told that now we are in your custody so you may search out. When the police personnel asked the people and shop keepers for witnessing they denied to be witness of the incident. After being enquired the suspected person told their names as Ramesh Chandra Gupta @ Babloo S/o Laxmi Shanker Gupta R/o 133, Gopal Nagar, Naubasta, Kanpur Nagar and Mohd. Javed Son of Mohd Sareef R/o. 126/11, NLC Colony Thana Babupurwa, Kanpur Nagar. From the possession of Ramesh Chandra Gupta @ Babloo a white coloured polythene in which 1½ Kg. poppy straw was kept and from another polythene bag 150 grams of smack was also recovered. From the possession of Mohd. Javed 1½ Kg. poppy straw was recovered in two polythene bags and from his pocket about 125 grams smack was also recovered. When the police personnel enquired about the licence they fail to show the licence.

4. At the very outset, learned counsel for the appellant, on instructions, stated that he does not propose to challenge the impugned judgment and order on its merits. He, however, prayed for modification of the order of the sentence for the period already undergone by the appellant.

5. In furtherance to his submission, the learned counsel for the accused-appellant submits that the accused appellant had been in jail during trial and after conviction he is in jail. As such, the accused has already served out for about two years and four months of the sentence. The accused-appellant is a young man and he is the only male member in the family to look after his parents. Further submission is that it was the first offence of the accused and after conviction the accused had not indulged in any other criminal activity. He next submits that although the trial court has convicted the present accused on the basis of mere conjunctures and surmises while the appellant is absolutely innocent and has been falsely implicated in this case with the ulterior intention of harassing him. He also submits that on the question of legality of sentence he is not pressing this appeal and only pressing on the quantum of sentence and he has prayed for taking lenient view considering the age of the accused and his age related ailments.

6. Learned A.G.A. has vehemently opposed the submission made by learned counsel for the appellant. He has however, submits that if slight reduction in sentence is made, he has no objection.

7. I have perused the entire material available on record and the evidence as well as judgment of the trial court. The