- (1.) HEARD learned counsel for the parties.
(2.) THIS appeal is directed against impugned judgment and order dated 27.11.2007 passed by Special Judge, N.D.P.S. Cases, Baran in Sessions Case No. 132/2005, whereby the appellant has been convicted and sentenced under Section 8/18 of The Narcotic Drugs and Psychotropic Substances Act, 1985(hereinafter referred to as 'the NDPS Act') to 10 years rigorous imprisonment and a fine of Rs. 1,00,000/- and in default of payment of fine to further undergo one year additional rigorous imprisonment. Mr. J.K. Singhi, learned Senior Counsel appearing on behalf of the appellant submitted that the incident in the present case took place on 01.08.2005 and since then the appellant is in judicial custody, therefore, he has already remained in jail for more than 6 years and 8 months and since the contraband recovered in the present case is not greater than the commercial quantity specified by the Central Government by notification in the Official Gazette, therefore, it will be just and proper in the interest of justice to reduce the sentence of imprisonment and fine of the appellant awarded by the trial court to a period of imprisonment already undergone by him. He submitted that contraband recovered in the present case is 2.5 Kg. opium. The commercial quantity notified in the notification issued by the Central Government is 2.5 Kg., but in view of definition of "commercial quantity", as defined under Section 2(viia) of the NDPS Act, the same cannot be treated as "commercial quantity", as it should be greater than the quantity specified in the notification issued by the Central Government. Learned counsel for the appellant submitted that Larger Bench of Himachal Pradesh High Court in Ratto Vs. State of H.P., 2003 (3) Crimes 323 interpreted the definition of "commercial quantity" and held that quantity, to be determined as commercial quantity, should be higher than the quantity notified in the notification. He further submitted that the judgment of Larger Bench of Himachal Pradesh High Court was followed by this Court in Chanda Soni @ Pushpa(Smt.) Vs. State of Rajasthan, 2009 (1) Cr.L.R.(Raj.) 706, which was a case of opium itself, wherein this Court took a view that contraband so recovered is not of commercial quantity. He, therefore, submitted that the trial court committed an illegality in treating the quantity of 2.5 Kg. opium as 'commercial quantity' and in awarding minimum sentence of 10 years rigorous imprisonment.
(3.) LEARNED Public Prosecutor defended the impugned judgment and order passed by the trial court, but so far as interpretation of definition of "commercial quantity", taken by Larger Bench of Himachal Pradesh High Court in Ratto Vs. State of H.P.(supra) case, which has been followed by this Court also in Chanda Soni @ Pushpa(Smt.) Vs. State of Rajasthan(supra) case is concerned, he fairly and frankly submitted that 2.5 Kg. opium cannot be said to be commercial quantity, therefore, minimum sentence of 10 years rigorous imprisonment in the present case is not attracted. I have considered the submissions of learned counsel for the parties and examined the impugned judgment and order passed by the trial court. The facts of the case are that on 01.08.2005, SHO PS Sadar, Baran, Hari Mohan Sharma with Udai Raj, ASI; Ummed Singh, Islam Khan, Uttam Singh, constables and driver Abdul Arif were on patrolling duty and at that time, near Mauja Miyada, they saw one person coming with a bag. On seeing the patrolling party, he started running, therefore, he was stopped and during interrogation, he did not give satisfactory reply. Thereafter, his bag was searched in accordance with the provisions of law. He was informed about provisions of law, as to whether he wants a search to be made by Gazette Officer or the Magistrate. The contraband, i.e. opium with bag was found, which was weighed as 2 Kg. and 520 Grams. After excluding the weight of the bag, i.e. 20 Grams, net weight of contraband came as 2.5 Kg. Two samples of 50-50 Grams opium were prepared and sent for chemical examination. After completion of investigation, a charge sheet was submitted. Charge was framed against the appellant under Section 8/18 of the NDPS Act and after completion of trial, he was convicted and sentenced, as mentioned above. ;