Court confirmed conviction under NDPS Act but modified sentence to time already served due to the appellant's age and lack of prior offenses.

1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 11.04.2008, passed by the Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act'), Durg, Chhattisgarh, in special case No.18/07, whereby and whereunder the learned Special Judge after holding the accused / appellant guilty for illegal possession of Ganja, the cannabis 39KG, convicted him under S.20(b)(ii)(C) of the NDPS Act and sentenced him to undergo R.I. for ten years and also to pay fine of Rs.1.00 Lakh, in default of payment of fine to further undergo additional R.I. for six months.

2. The conviction is impugned on the ground that without there being any iota of evidence, the Court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality.

3. As per the case of the prosecution, on 02.11.2007, the SHO Kumhari, Virendra Chaturvedi (PW - 7) received an information by the informer that the appellant / accused has kept Ganja illegally on the roof of his house, the Investigating Officer (I.O.) had lodged this information in rojnamchasanha, prepared the Panchnama, requisite the witnesses for enquiry prepared the Mukhbir Suchna Panchnama (Ex - P / 6). Thereafter along with police party and panch witnesses after making entry in the rojnamchasanha reached the house of the appellant, gave him notice for the search of his house and he further informed the legal right of the appellant that if he wishes, the search may be conducted in presence of Magistrate / Gazetted Officer or by the I.O. himself. The appellant consented to be searched by the I.O. himself. Thereafter, on due search, the I.O. recovered 8 bags having suspicious substance, the same was duly recovered thereafter on physical examination, the said substance was identified as Ganja. Thereafter weight of the entire substance was taken, which was found 39 KG, the concerned I.O. took out the two samples of 50-50 gms. and seized the remaining Ganja separately and duly seized the same before the Panch witnesses, thereafter gave a notice to the appellant to submit any document or license for keeping the said Ganja. The accused / appellant failed to produce any legal document for the same, thereafter the police duly arrested the accused / appellant, kept the so seized material in the Malkhana, the samples were sent for chemical examination, the FSL confirmed presence of Ganja, the superior officials were informed about the complete enquiry / proceeding regarding the entire incident. After investigation, the charge - sheet was filed before the Special Judge, NDPS Act.

4. The learned trial Court framed the charges against the present appellant for the offence under S.20(b)(ii)(C) of the NDPS Act. The accused / appellant denied the charges and prayed for trial.

5. In order to prove the guilt of the appellant, the prosecution examined as many as 9 witnesses. The accused was examined under S.313 Cr.P.C. in which he denied the circumstances appearing against him, pleaded innocence and false implication in the crime in question. After affording opportunity of hearing to the parties, the trial Court has convicted and sentenced the appellant as above.

6. I have heard learned counsel for the parties, perused the judgment impugned and record of the Court below.

7. Learned counsel for the appellant submits that as instructed, he is not challenging the judgment of conviction passed against the appellant, whereby the appellant has been held guilty for the offence, as instructed, he is confining himself for the quantum of sentence. Learned counsel submits that the present appellant is in jail since 2-11-2007 till date thereby has served the sentence for 8 years, 6 months and 22 days till date.