The main legal point established in the judgment is the court's discretion to modify the default imprisonment period based on the appellant's circumstances, despite upholding the conviction under the NDPS Act.

JUDGMENT

R C Khulbe, J. - The present criminal jail appeal is directed against the judgment and order dated 26.02.2015 passed by the learned Sessions Judge, Champwat, in S.S.T. No.04 of 2013, 'Sate Vs. Heera Singh Saoud', whereby the learned Trial Court convicted the appellant u/s 8/20 of NDPS Act and sentenced him to undergo ten years' R.I. with fine of Rs.1,00,000/-, and in default of payment of fine, he was sentenced to undergo one years' additional imprisonment.

2. Brief facts of the case are that, as per the recovery memo Ex.Ka-6, when the police party was on patrolling duty on 19.12.2012 at about 11:00 AM, an Indigo Car bearing No.DL1YC-1880 was coming from the opposite direction, the accused was apprehended; accordingly, 25 kg. charas was recovered from the said car. On the basis of recovery, a Chik FIR Ex.Ka-10 was lodged with the Police Station, Tanakpur on 19.12.2012 at 13:50 hours. After completion of investigation, chargesheet Ex. Ka-17 was submitted against the appellant u/s 8/20 of NDPS Act. After compliance with the provision of Section 207 Cr.P.C, the charges were framed on 29.05.2013. The appellant denied all the allegations and claimed to be tried.

3. To bring home the guilt of the appellant, the prosecution produced PW1- S.H.O. Naresh Chandra, PW2- S.I. Prem Viswakarma, PW3- H.C. Hemant Kumar, PW4- Dinesh Gupta, PW5- S.I. Janardan Bhatt and PW6- S.I. Ram Singh Mehta.

4. After completion of prosecution evidence, statement of appellant was recorded u/s 313 Cr.P.C. in which he denied all the evidences and stated that the prosecution produced false evidence against him. However, no evidence was produced in defence.

5. After hearing both the parties, the trial Court convicted the appellant and sentenced him as mentioned in paragraph no.1 of the judgment.

6. Feeling aggrieved by the order of conviction and sentence, the present appeal is preferred before this Court.

7. Heard the learned counsel for the appellant as well as learned counsel for the State through Video Conferencing and perused the entire evidence available on record.

8. It is submitted by learned counsel for the appellant that he does not want to argue the case on merits as the trial Court has rightly convicted the appellant based on sufficient material on record; the appellant has no criminal antecedent; there is no illegality in the impugned findings regarding the conviction, but he fairly submitted that the appellant is a Nepali citizen and is languishing in jail since 19.12.2012; he has served about 9 years; and lastly submitted that the appellant is the sole bread earner in his family; although, under Section 20 of NDPS Act the minimum sentence 10 years' R.I. along with fine of Rs. one lakh is prescribed, but the trial court awarded one year's additional imprisonment in default of payment of fine, which is in higher side; the appellant is unable to pay fine because he is very poor; he has no source of income and prays for reducing the sentence in default of payment of fine.

9. Learned State Counsel fairly submitted that the appellant is a Nepali citizen and is languishing in jail since 19.12.2012; he has served about 9 years in jail.

10. From the perusal of the record, before taking the search the police party took the consent letter from the accused, which is Ex. Ka-2; thereafter, arresting memo was prepared at the spot; as per the FSL report, the contraband article was found 'charas'; PW-1 Naresh Chandra and PW-2 S.I. Prem Viswakarma are the witnesses of the recovery; they supported the prosecution story as alleged in the FIR.

11. From a perusal of the entire evidence, I have reached to the conclusion that the Trial Court has rightly convicted the appellant based on the sufficient evidence produced by the prosecution and there is no illegality or infirmity in the impugned findings because the contraband article, which was recovered from the possession of the appellant comes within the definition of commercial quantity where the minimum sentence 10 years'