High Court of Madhya Pradesh, Jabalpur Bench at Indore BEFORE HON’BLE SHRI JUSTICE SUBODH ABHYANKAR &

HON’BLE SHRI JUSTICE SATYENDRA KUMAR SINGH ON THE 2^ND OF AUGUST, 2022 Criminal Appeal No.1173/2015 Between: -

Yunus S/o Rehmat Shah Age- 24 years, Occupation- Agriculture, R/o Balim Kasba Dhoratanda, Police Station Bhojipura, District Bareli (UP)

…..APPELLANT (By Shri Akhilesh Kumar Saxena, Advocate)

AND The State of Madhya Pradesh Through Police Station Bhavgarh District Mandsaur (MP)

…..RESPONDENT (By Shri Akash Sharma, Government Advocate)

…………………………………………………………………………………………………………….

Reserved on: - 16.06.2022 Delivered on: - 02.08.2022 ……………………………………………………………………………………………………………

This CRIMINAL APPEAL coming on for hearing /

judgment this day, Hon’ble Shri Justice Subodh Abhyankar passed the following:

JUDGMENT

This appeal under Section 374 (1) of the Code of Criminal Procedure, 1973 has been filed by the appellant being aggrieved of his conviction and sentence.

The appellant stands convicted by the impugned Signature Not Verified Signed by: RAMESH judgment dated 28.07.2015, passed by the learned Special Judge (under NDPS Act), Mandsaur District Mandsaur (MP) in Special Sessions Trial No.09/2012, whereby the learned Judge of the trail court has sentenced him, as mentioned herein below: -

Accused Conviction Sentence Fine Amount Sentence in default of payment of fine Yunus s/o 8 r/w 15 (c) of 12 years Rigorous Rs.1,00,000/- 1 Year RI Rahmat Shah NDPS Act Imprisonment

2. In brief, the facts of the case are that on 23.10.2011 at around 04.30 PM in the evening, the Police Mandsaur apprehended a truck bearing registration number UP-25 AT-5188 at Gram Dhandhoda Phanta on Bhavgarh-Dalauda Road. Although the truck did not initially spot, but it was chased by the Police in a Jeep and was stopped. After stopping the truck, two person got down and ran away from the spot, however, the Driver of the vehicle was caught then and there only, who informed his name to be Yunus S/o Rahmat Shah (the present appellant) and the person who ran away from the spot were Nasir and Jahid, who are still at large.

3. After giving the due information to the Driver, the truck was searched by PW-15 R.P. Rana, Sub Inspector and it was found that 199 white bags containing poppy straw, were surreptitiously being transported hidden beneath the 101 bags of fodder, which was seized and after mixing the contents of these bags and making a homogeneous mixture of poppy straw, its samples were taken and were sent to the Forensic Science Signature Not Verified Signed by: RAMESH Laboratory. The quantity of poppy straw was found to be 39 quintal and 80 kilogram.

4. After the investigation was completed, the charge sheet was filed and the appellant was tried before the learned Special Judge (under NDPS Act) Mandsaur, District Mandsaur (MP), who vide his judgment dated 28.07.2015 has convicted the appellant, as aforesaid; and being aggrieved, this appeal has been preferred by the appellant.

5. Shri Akhilesh Kumar Saxena, learned counsel for the appellant has submitted that the prosecution has not proceeded with the seizure of the contraband, in accordance with the provisions of the Narcotic Drugs & Psychotropic Substance Act, 1985 (herein after referred to as the Act), especially Sections 42, 57 as also Sections 50, 55 and 52.

6. In the alternative, counsel for the appellant has submitted that the appellant has been sentenced to twelve years imprisonment and he has already completed ten years and seven months as of now; and thus, the sentence awarded to him (which is twelve years RI) be reduced to ten years RI only, which is the minimum sentence under the Act.

7. In support of his contention, counsel has also relied upon the decision dated 25.02.2021 rendered by a Division Bench of this Court in Criminal Appeal No.1776/2016 (Rakesh v. State of Madhya Pradesh) wherein this Court has reduced the sentence from eleven years to ten years, the minimum prescribed sentence Signature Not Verified Signed b