390 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 07.03.2025 Jagtar Singh alias Kaka ....Appellant Versus State of Punjab ...Respondent CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR Present: Mr. Vijay Lath, Advocate for the appellant.

Mr. Rishabh Singla, AAG, Punjab.

HARPREET SINGH BRAR, J. (ORAL)

1. The prayer in the present appeal is to set aside the judgment of conviction and order of sentence dated 15.11.2006 passed by learned Judge, Special Court, Rupnagar, whereby, the appellant was convicted and sentenced for the offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter ‘NDPS Act’), in the case stemming from FIR No.100 dated 08.05.2005, under Section 15 of the NDPS Act at Police Station Sadar Ropar.

2. The appellant was sentenced as mentioned below:

3. Brief facts of the case are that on 08.05.2005, a police party headed by ASI Rajinder Singh was on patrolling duty at Nalagarh road and received a secret information that the accused/appellant deals in poppy husk and selling the same on the turning of SYL Canal, Makauri Kalan. When the raid was conducted, the appellant was apprehended with 6 Kg of Poppy Husk, two samples of which were drawn from the bag. The samples of 250 grams each were then sent to the chemical examiner who confirmed the contents to be 'Poppy Head'. Subsequently, FIR (supra) was registered under Section 15 of the NDPS Act.

4. Learned counsel for the appellant submits that the learned Court below has fallen into grave error in convicting the appellant, as his guilt has not been proved beyond reasonable doubt. He further contends that the compliance of Sections 42 and 50 of the NDPS Act has not been made in the present case. Moreover, the fact that the appellant was in conscious possession of the contraband has not been proved on record and no incriminating articles have been recovered from the house of the appellant. Further, there are major discrepancies in the statements of the prosecution witnesses and the charge framed against the appellant is defective and the appellant has not been examined properly under Section 313 of Cr.P.C. Lastly, he submits that the appellant has already undergone a period of 29 days in custody and is not involved in any other criminal case.

5. Per contra, learned State counsel opposes the prayer of the appellant as the learned Court below has passed a well-reasoned judgment based on correct appreciation of evidence available on record as such, he does not deserve any leniency.

6. Having heard learned counsel for the parties and after perusing the record with their able assistance, it transpires that the appellant was convicted for being in possession of 6 kg of Poppy Husk, i.e. intermediate quantity, attracting the offence of Section 15 NDPS Act, for which no minimum punishment has been prescribed. As per his custody certificate, he is not involved in any other case and has already undergone an actual sentence of 29 days out of total sentence of 01 year, in the instant case. Since there is no minimum punishment prescribed under Section 15 NDPS Act, this Court is of the opinion that it would be in the interest of justice, if the sentence awarded to the appellant is reduced to the period already undergone by him.

7. In Deo Narain Mandal vs. State of U.P. (2004) 7 SCC 257, the Hon'ble Supreme Court has opined that awarding of sentence is not a mere formality in criminal cases. When a minimum and maximum term is prescribed by the statute with regard to the period of sentence, a discretionary element is vested in the Court. Background of each case, which includes factors like gravity of the offence, manner in which the