The quantity of the narcotic substance found with the accused and its classification as a commercial quantity influenced the court's decision in determining the appropriate sentence and fine.

Judgment

N.K. Gupta, J.;-

1. The appellant has preferred this appeal against the judgment dated 31.1.2009 passed by the Special Judge, NDPS Act, Narsinghpur in Special Case No. 47/2006 whereby the appellant was convicted for offence punishable under Section 8/21 of the Narcotics Drugs & Psychotropic Substances Act, 1985 (in short the "NDPS Act") and sentenced for 10 years rigorous imprisonment with fine of Rs. 1 lac. In default of fine one years simple imprisonment was directed. The prosecution's story in short is that on 10.12.2006 an intimation was received at Police Station, Narsinghpur that appellant Vijay Jain, who was standing before a Liquor Shop near Khairi Nala at Narsinghpur was having a big load of smack. The appellant was resident of Mandsaur District. Sub Inspector Shafiq Khan (PW 10) recorded the information in the Rojnamcha and also prepared a memo on information. He informed his higher authorities and since the appellant could disappear Shri Shafiq khan could not take any search warrant from the higher authorities. He went to the spot with the Police Force and two independent witnesses viz. Vivek (PW 4) and Sheikh Ajju (PW 3). A notice under Section 50 of the NDPS Act was given to the applicant for his search and with his consent search was taken by Sub Inspector Shafiq Khan. The applicant kept a polythene bag under his shirt in which smack powder was found. On its weighing, 1230 gms. of smack powder was available with the appellant. Various memos relating to weighing, sampling, sealing etc. was prepared and the appellant was arrested. A case was registered and the seized property was sent for forensic science analysis. A report Ex. P/23 was received from Forensic Science Laboratory that in the seized powder 14.83% diacetylmorphine (heroin) was found. A charge sheet was submitted before the Special Court NDPS Act, Narsinghpur.

2. The appellant abjured his guilt. He did not take any specific plea in the case. However, he has stated before the trial Court that he came to Narsinghpur along with one Bagdi Bai, whose husband Shankarlal, was in custody at Narsinghpur. Police Officers of Police Station, Narsinghpur released Shankarlal after taking some money but they kept the appellant without any basis. It was settled that Bagdi Bai will bring some money and the appellant will be released but she did not come back and therefore, a false case was prepared against the appellant.

3. On the basis of the prosecution's evidence the learned Special Judge convicted the appellant for offence punishable under Section 8/21 of the NDPS Act and sentenced as mentioned above.

4. I have heard the learned counsel for the parties.

5. The learned counsel for the appellant submits that appellant is the first offender and quantity of smack which was found with the appellant was not of commercial quantity. The trial Court found that according to the percentage of the pure heroin the quantity obtained from the appellant should be counted as 185 gms and therefore, it was not a commercial quantity. However, the trial Court has granted the maximum sentence for that offence. The learned counsel for the appellant has placed his reliance upon the judgment of Hon'ble the Apex Court in the case of "Ghasita Sahu Vs. State of M.P." (AIR 2008 SC 1425) in which Hon'ble the Apex Court reduced the sentence of the accused up to four years rigorous imprisonment whereas 17.750 kgm of Ganja was found with the accused which was of medium quantity. It is submitted that appellant is in custody since 11.12.2006 and therefore, he has completed more than five years and six months in the custody. It is prayed that the sentence of the appellant may be reduced to the period which he has already undergone in the custody. However if Court desires some fine may be imposed.

6. On the other hand the learned Panel Lawyer has submitted that sentence passed by the trial Court appears to be appropriate.

7. After considering the submissions made by the learned counsel for the parties