CR.A/1229/2004 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1229 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= YUNUS ALIAS KALU ABDREMAN CHAUHAN (SHAIKH) - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR RAJESH M AGRAWAL for Appellant(s) : 1, MS HANSA PUNANI, ADDL PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 04/04/2008 ORAL JUDGMENT 1. The present appellant is the original accused. By the impugned judgement and order dated 25.05.2004 passed by the learned Special Judge (NDPS) and Additional Sessions Judge, 6th Fast Track Court, CR.A/1229/2004 2/7 JUDGMENT Veraval in Special Case No. 01 of 2003 (NDPS), the present appellant was convicted for offence under section 20(b)(ii)(B) of The Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'NDPS Act') and sentenced to rigorous imprisonment for seven years and fine of Rs. 75,000/-. In default of payment of fine, he was directed to further undergo simple imprisonment for one year. 2. Mr. Rajesh Agrawal, learned advocate appearing for the appellant submitted at the outset that the appellant is not pressing the appeal on merits of conviction. He, however, urged the Court to reduce the sentence considering the facts and circumstances of the case. 3. In view of the above statement, I have confined scrutiny with respect to the sentence imposed by the learned Judge and the legality of the conviction is not gone into. 4. Mr. Agrawal submitted that as per the case of the prosecution the appellant was found in possession of Charas being 462 gms and 916 mgs. He pointed out that small quantity for Charas is prescribed as 100 gms and commercial quantity is prescribed as 1 kg. It can thus be seen that the appellant was found in possession of Charas which was in quantity larger than small quantity but lesser than commercial quantity. From the provisions contained in Section CR.A/1229/2004 3/7 JUDGMENT 20 of the NDPS Act, for the offence which the appellant committed and considering the quantity of Charas found in his possession, punishment of rigorous imprisonment for a term which may extend to ten years and fine which may extend to Rs. 1 lakh is prescribed. 5. Mr Agrawal has drawn my attention to the decision of the Apex Court in the case of Balwinder Singh vs. Asstt. Commissioner, Customs and Central Excise reported in 2005(2) EFR 420 (= AIR 2005 SC 2917) wherein the accused was found in possession of 175 kgs of Heroin and 39 kgs of Opium. However, considering that the accused was a first time offender, sentence of 14 years of imprisonment imposed by the Courts below was reduced to minimum prescribed under the Act that of 10 years. 5.1 My attention is also drawn to the decision of the Division Bench of this Court dated 09.01.2008 in the case of rendered in Criminal Appeal No. 904 of 2000 wherein the accused were found in possession of Charas weighing nearly 9.5 Kgs. The Division Bench reduced the punishment from that of rigorous imprisonment of 15 years to the minimum of 10 years as prescribed under the Act. 5.2 Similarly in a judgement dated 05.02.2008 rendered by the Division Bench of this Court in Criminal Appeal No. 954 of 2003 with Criminal Appeal No. 2277 of 2004, the accused were found to be in CR.A/1229/2004 4/7 JUDGMENT possession of Charas of nearly 6 Kgs. The Division Bench reduced the sentence from rigorous imprisonment of 12 years to the minimum of 10 years prescribed. 5.3 In the case of Ghasita Sahu vs. State of Madhya Pradesh reported in 2008 AIR AIAR (Criminal) 277, the Apex Court considering the poor background of the accused reduced the punishment from 5 years to one already undergone (about 4 years as noticed by the Apex Court) and also reduced the fine from Rs. 20,000/- to Rs. 10,000/- and imposed the default sentence of six months. It was a case wherein the accused was found carrying 17 Kgs of Ganja. It may be noted that commercial quantity for Ganja is prescribed as 20 Kgs. 5.4 In the case of Shanti Lal vs. State of M.P. reported in 2007(2) EFR 702, the Apex Court in para 36 observed that the accused appellant is a very poor person and it was his first offence. It is further observed that because of poverty he could not pay the heavy amount of fine of Rs. 1 lakh and that if he is ordered to remain in jail even after the period of substantive sentence is over only because of his inability to pay fine, serious prejudice will be caused not only to him but also to his family members who are innocent. With these observations the Apex Court though found itself unable to reduce the fine below the minimum of Rs. 1 lakh prescribed by the legislature directed that in default of payment of the said fine, the accused appellant shall serve CR.A/1229/2004 5/7 JUDGMENT sentence of six months. 6. On the other hand, learned APP Ms. Hansa Punani supported the judgement under challenge. She submitted that the appellant was found in possession of a sizeable quantity of Charas. The trial court has imposed sentence and fine which is within the permissible limits prescribed under the NDPS Act. This Court therefore should not interfere in exercise of discretionary powers by the learned Judge. 7. Having thus heard learned advocates appearing for the respective parties and having taken into account relevant aspects of the matter, I find that imposition of the sentence of 7 years and fine of Rs. 75,000/- in the facts of this case are harsh. 8. As already stated the appellant was found in possession of 462.916 gms of charas. Small quantity of charas is defined as 100 gms and commercial quantity is 1 Kg. The appellant was thus carrying charas more than small quantity but substantially lesser than commercial quantity. In that view of the matter, and also considering the fact that the appellant is a first time offender and has no other criminal antecedents, the sentence of 7 years of rigorous imprisonment needs to be reduced. So also imposition of fine of Rs. 75,000/- against the maximum permissible fine of Rs. 1 lakh in facts of the case is high. CR.A/1229/2004 6/7 JUDGMENT 9. Taking into account the various decisions noted hereinabove and also taking into account special facts of the case including the facts that the appellant is stated to be a very poor person, this is his first involvement in a criminal case and the quantity of the drug found in his possession I find that the ends of justice will be met if the sentence is reduced to rigorous imprisonment for 4 years and imposition of fine of Rs. 15,000/-. In default of payment of fine he shall serve sentence of six months of simple imprisonment. 10. From the jail record, it appears that the appellant original accused has been in jail since his arrest without any relief. Apparently he has served sentence of 4 years and 8 months approximately. 11. Under the circumstances, the appeal is disposed of with the following directions: (i) The conviction of the appellant under Section 20(b)(ii)(B) of the NDPS Act is upheld. (ii) The sentence imposed on the appellant, however, is reduced to four years of rigorous imprisonment and fine of Rs. 15,000/-. In case of default of payment of fine, the default sentence is reduced to six months simple imprisonment. (iii) He shall be set at liberty forthwith if not required in connection with any other case. CR.A/1229/2004 7/7 JUDGMENT (AKIL KURESHI, J.) Divya//