IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

459 CRA-S-530-SB-2007 (O&M) Date of decision: 10.03.2025 Arun Kumar @ Murli ....Appellant Versus State of Punjab ....Respondent CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR Present: Ms. Jaspal Kaur, Advocate (Amicus Curiae 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 dated 23.02.2007 and order of sentence dated 24.02.2007 passed by learned Judge, Special Court, Bathinda whereby the appellant was convicted and sentenced for the offence punishable under Section 15(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter ‘the NDPS Act’), in the case stemming from FIR No.522 dated 03.11.2001, under Section 15 of the NDPS Act at Police Station Kotwali, District Bathinda.

2. The appellant was sentenced as mentioned below:

3. Brief facts of the case are that on 03.11.2001, a police party headed by ASI Kuldeep Singh was on patrolling duty and when they reached at Ghona Railway Crossing on Naruana Road, they joined one independent witness Hazura Singh and when they were patrolling ahead, appellant along with co-accused were found travelling on a scooter. Both of them were apprehended and recovery of 25 Kgs of Poppy Husk was effected from them in the presence of Deputy Superintendent of Police and one sample of which was drawn from the bag. The sample of 250 gms was then sent to the chemical examiner for its examination and subsequently, FIR (supra) was registered under Section 15 of the NDPS Act.

4. Learned amicus curiae 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. Moreover, the fact that the appellant was in conscious possession of the contraband has not been proved on record. Further, there was also an unexplained delay of 05 days in sending the representative sample of the alleged contraband to the FSL Laboratory. She further contends that although the alleged independent witness was joined in the investigation, however, he was not examined by the prosecution and there are major discrepancies in the statements of the witnesses who have been examined by the prosecution. She further contends that the mandatory provisions of the NDPS Act have not been followed in the present case. Lastly, she submits that the appellant has already undergone a period of

02 months and 13 days in custody and is not involved in any other criminal case.

5. Per contra, learned State counsel opposes the prayer of the appellant on the ground that 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 25 kgs of Poppy Husk, i.e. intermediate quantity, attracting the offence of Section 15 the 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 02 months and 13 days out of total sentence of 02 years, 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 formali