Prolonged pendency and substantial incarceration justified reducing the NDPS sentence to the period already undergone.

On 21 July 2004, the police received information that a person was dealing in ganja from Room No. 11 of Mini Lodge, Cuttack.

A raiding party searched the room in the presence of an Executive Magistrate, pursuant to the appellant’s alleged exercise of his option under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”).

No contraband was recovered from the appellant’s person; however, a rexine bag and an attache case kept in the room allegedly contained 5 kilograms of ganja each.

The trial Court convicted the appellant under Section 20(b)(ii)(B) of the NDPS Act and sentenced him to six years’ rigorous imprisonment and a fine of ₹20,000, with six months’ rigorous imprisonment in default.

During the appeal, an inquiry revealed that the appellant could not be located at his recorded address and that his present whereabouts were unknown.

The record showed that he had remained in custody from 21 July 2004 until his release on bail on 4 October 2007, and that he had not misused his liberty or been involved in any subsequent criminal activity.

Whether the conviction of the appellant under Section 20(b)(ii)(B) of the NDPS Act, based on the alleged recovery of 10 kilograms of ganja from Room No. 11, was sustainable?

Whether, having regard to the period of incarceration already undergone, the prolonged pendency of the appeal, the appellant’s untraceable status and the absence of any subsequent criminal conduct, the substantive sentence ought to be reduced?

The Court applied Section 20(b)(ii)(B) of the NDPS Act, which criminalises possession of cannabis/ganja involving an intermediate quantity and prescribes the applicable punishment.

The prosecution was required to establish the appellant’s conscious possession of the contraband beyond reasonable doubt.

The trial Court had considered compliance with Sections 42, 50 and 57 of the NDPS Act, relating respectively to recording and communication of information, safeguards governing personal search, and reporting of arrest and seizure, and found substantial compliance.

The Court also considered the evidentiary significance of the seizure, sealing, custody and chemical examination of the samples, including the principle discussed in Jitendra v. State of Madhya Pradesh concerning production of seized material objects.

In sentencing, the Court exercised its appellate discretion to modify the substantive imprisonment in light of the period already undergone, the extraordinary delay, and the peculiar circumstances of the case.

The trial Court had found, on the evidence of the hotel employees, police officials, Executive Magistrate, weighing person and investigating officer, that the appellant was in conscious possession of 10 kilograms of ganja kept in the room.

It further accepted the seizure documents, station diary entries, statutory reports, malkhana custody and chemical examination report as demonstrating compliance with the relevant NDPS Act safeguards and the identity of the seized substance.

The High Court did not disturb those findings and therefore upheld the conviction.

However, it treated the sentencing circumstances as exceptional: the appellant had already undergone substantial incarceration, the appeal had remained pending for nearly two decades, he had not been shown to have misused bail or committed any subsequent offence, and he could not be traced despite police inquiry.

In those circumstances, the Court concluded that requiring him to surrender and undergo the remaining sentence would serve no useful purpose.

The appeal was partly allowed.

The substantive sentence of six years’ rigorous imprisonment was reduced to the period already undergone.

The judgment does not expressly modify the fine of ₹20,000 or the default sentence imposed by the trial Court.