IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI th ON THE 9 OF FEBRUARY, 2024 CRIMINAL APPEAL No. 652 of 2009 BETWEEN:-

1. MUKESH KUMAR S/O SHRI MOHANLAL MANJHI, AGED ABOUT 35 YEARS, IMLAHAPURA, PS.

SIHORA, DISTT. JABALPUR (MADHYA PRADESH)

2. SMT.MAMTA BAI W/O MUKESH KUMAR, AGED ABOUT 30 YEARS, R/O IMLAHPURA P.S. SIHORA (MADHYA PRADESH)

.....APPELLANTS (BY SHRI SOURABH SENGAR - ADVOCATE AS AMICUS CURIAE )

AND THE STATE OF MADHYA PRADESH TH. PS. SIHORA, JABALPUR. (MADHYA PRADESH)

.....RESPONDENT (BY MS. SEEMA SAHU - PANEL LAWYER )

This appeal coming on for hearing this day, the court passed the following:

ORDER

By the present appeal filed under Section 374(2) of the Code of Criminal Procedure, the appellants have challenged the judgment of conviction and order of sentence passed by Special Sessions Judge, (NDPS) Jabalpur in Special Criminal Case No.10/2007 whereby the appellants have been convicted under Section 8/20(B)(2)(b) of NDPS Act and sentenced to undergo R.I. for 1 year and fine of Rs.2,000/- for offence with default stipulation.

2. As none appeared on behalf of the appellant, Shri Sourabh Sengar, Signature Not Verified Signed by: AKANKSHA Advocate who is present in the court, has been requested to assist the Court on behalf of the appellants as amicus curiae.

3. The learned counsel for the appellants has submitted that the prosecution failed to prove the case beyond reasonable doubt. During the trial, the appellants remained in custody, namely Mukesh (16.03.2007 to 26.04.2007) and Mamtabai (16.03.2007 to 26.04.2007). He prayed for acquittal of the appellants. 4. Per contra, the learned counsel appearing for the respondent/State supported the judgment and submitted that the prosecution has duly proved the incident and the learned sessions Court has rightly convicted the appellant under Section 8/20 (B)(b) of NDPS Act.

5 . After considering the arguments of both the parties and after perusal of record, it appears that FIR was lodged at P.S. Sihora District Jabalpur on 15.03.2007 against the appellants which was registered as Crime No.221/2007 under Section 8/20 (B)(b) of NDPS Act. After investigation, the charge-sheet was filed.

6. Learned Trial Judge after considering the statements of the witnesses by judgment dated 30.03.2009 convicted the appellant under Section 8/20 (B)(b) of NDPS Act and sentenced as stated herein above, however, the findings recorded by the learned Trial Judge are based on due appreciation of evidence and do not require any interference. The judgment of conviction and conviction under Section 8/20 (B)(b) of NDPS Act is upheld.

7. However, looking to the facts that the prosecution has not brought any past criminal antecedents of the appellants on record and there is no minimum sentence has been prescribed under Section 8/20 (B)(b) of NDPS Act, appellant Mukesh was 35 years of age and appellant Mamta Bai was 30 years of age, the incident is of the year 2007 and since then they are facing mental agony.

Signature Not Verified Signed by: AKANKSHA It reveals from the record that crime No. 321/2000 and crime No. 425/2000 were also registered against the appellants respectively but it is not on record that what was the result of both cases, no previous conviction is on record against both the appellants therefore, I deem it proper to reduce the jail sentence of the appellants to the extent of the period which they have already undergone, namely Mukesh (16.03.2007 to 26.04.2007) and Mamtabai (16.03.2007 to 26.04.2007) and accordingly, the jail sentence is reduced to the period already undergone by them and sentence of fine is maintained. The order of trial Court regarding disposal of property is maintained. The appellant are on bail, their personal bonds and bail bonds be discharged. Accordingly, the appeal is partly allowed.

8. Record of the trial Court be sent back along with copy of the judgment.

(RAJENDRA KUMAR VANI)

JUDGE Akm Signature Not Verified Signed by: AKANKSHA