JAKIR KHAN Vs. STATE OF M P

JUDGEMENT

(1.) THE appellant stands convicted under section 8 read with section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Briefly stated prosecution case is that on 10.6.1997, M.K. Upadhyaya (PW 8) who was the Station House Officer of Police Station, Nagda, received information that a person is selling "poppy husk" illegally at Kasai Mohalla, Cross Road. M.K. Upadhyaya (PW 8) prepared memorandum (Ex. P-1) regarding the receipt of information and apprised C.S.P. of the information. After making entry in Roj-Namcha, M.K. Upadhyaya (PW 8) reached with the force on the spot. The appellant was informed by M.K. Upadhyaya (PW 8) that he wanted to search his bag as he had information about the "poppy husk", being with him. He also informed that he could elect either to be searched by the witness (M.K. Upadhyaya) or the search could be made by Gazetted Officer and after obtaining the consent from the appellant, M.K. Upadhyaya (PW 8) searched the bag of the appellant.

(2.) ON search being made, about 800 gms. of "poppy husk" was found carried in the bag and Rs. 1,419/- were found on the person of the appellant. Appellant was asked to produce licence, but he informed that he had no licence of any kind. Sample was taken from the ' 'poppy husk'' found in search. The sample and the "poppy husk" were seized and sealed. The appellant was arrested after due information. Appellant and the seized husk and sample was taken to the Police Station and Crime No. 208/97 under section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 was registered at the Police Station and after due investigation, challan against the appellant was filed.

(3.) LEARNED counsel has submitted that under section 15(b) of the NDPS Act where the contravention involves quantity lesser than the commercial quantity, the maximum term of imprisonment, for which the offender may be sentenced, is 10 years and fine amount of Rs. One lakh. Any minimum jail sentence and fine amount have not been prescribed under the above section as such the rider of ten years rigorous imprisonment and fine of rupees one lakh as minimum sentence has been removed. Further submission of the learned counsel for the appellant is that according to the prosecution, 800 gms of ''poppy husk'' (poppy straw) has been seized from the possession of the appellant. Therefore, the contravention involves quantity lesser than the small quantity, so the appellant could have been punished with imprisonment for any term up to six months or fine upto ten thousand rupees. Learned counsel submits that looking to the quantity involved and circumstances of the case, awarding of maximum sentence prescribed is not warranted, therefore, the sentence awarded be reduced.