CR.A/2532/2005 1/27 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 2532 of 2005 With CRIMINAL APPEAL No. 1176 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE R.H.SHUKLA ========================================================= 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 ? ========================================================= FARUK AHMED ABDUL AHAD MUNSHI - Appellant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MS SADHANA SAGAR appointed by Legal Aid Committee for Appellant in both appeals. MS ARCHNA RAVAL APP for respondent – State of Gujarat in both appeals. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and CR.A/2532/2005 2/27 JUDGMENT HONOURABLE MR.JUSTICE R.H.SHUKLA Date : 11/01/2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) 1. Challenge in these two criminal appeals filed under Section 374 of the Code of Criminal Procedure ('the Code' for short), is to the correctness of the judgment and order dated 31.8.2004 rendered in Sessions Case No.89 of 1999 by the learned Additional Sessions Judge, 5th Fast Track Court, Junagadh, by which the appellant of Criminal Appeal No.2532 of 2005 ('A-1' for short) and appellant of Criminal Appeal No.1176 of 2006 ('A-2' for short) have been convicted for the offence punishable under Section 20 (b) (ii) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the NDPS Act' for short) and A-1 is sentenced to RI for 15 years and fine of Rs.2 lakhs i.d., RI for 5 years whereas A-3 is sentenced to RI for 10 years and CR.A/2532/2005 3/27 JUDGMENT fine of Rs.1 lakh i.d., RI for 5 years for the said offence. It is also ordered that since Rasul Aliahmed Mahetar Ghanchi ( original accused No.2) was absconding during the trial, his case against him was kept pending. 2. Briefly stated, the prosecution case, as disclosed from the complaint and as unfolded during trial, is as under: 2.1. P.W.2, Madhukant Haribhai Vasani, PSI, RR Cell of Junagadh, along with other police personnel, was on duty in his office on 17.3.1999. At that time he received a secret information through Asif Musabhai, a constable to the effect that one Rasul Ghanchi of Dhasa and two other persons of Kashmir were doing the business of charas and they were frequently coming at that place and on that day also they were sitting at platform No.7 of Junagadh S.T. Stand. At that time Mandaviya, Dy.S.P. was also CR.A/2532/2005 4/27 JUDGMENT present in the police station. P.W.2 recorded the said secret information in the station diary and conveyed the said information to his higher officers and also to the police personnel who were present in the police station. He thereafter requisitioned the service of two panchas through police constable and on arrival of two panchas they were also conveyed the said secret information received by him and after ascertaining their willingness to act as panchas, the first part of the panchnama was prepared. Thereafter, he along with Mandaviya, Dy.S.P. and other police personnel and panchas started towards S.T. Depot, Junagadh in Government jeep. On seeing them, three persons who were sitting at platform No.7 of the S.T. Bus Stand, Junagadh, started moving from that place. However, Mandaviya, Dy.S.P. stopped them and introduced himself and informed them about the secret information received in the police station by P.W.2 – Vasani, PSI and told them that they want to search them. They were informed that if they CR.A/2532/2005 5/27 JUDGMENT wanted to be searched in presence of a Magistrate or a Gazetted Officer, he may make arrangement for the same. However, all the three persons declined and, therefore, they were searched by the police officer in presence of the raiding party and panchas. On inquiry, A-1 disclosed his name as Farookahmed Abdulahad Munshi, a resident of Shahidganj, Srinagar (Kashmir), accused No.2 disclosed his name as Rasul Alimahmad Mahetar Ghanchi, a resident of Dhasa and A-3 disclosed his name as Irshad alias Ahmed Abdul Raheman Shah, a resident of Port Road, Srinagar (Kashmir). During the personal search of the said three persons, the police officer has found and recovered contraband article charas weighing 3 Kgs.340 grams from A-1, 150 grams from accused No.2 and 350 grams from A-3. Thereafter the contraband articles were seized, samples were taken for analysis and after that the muddamal articles were sealed as per the requirement. After completing all the necessary formalities, the second part of the panchnama was completed. CR.A/2532/2005 6/27 JUDGMENT Thereafter P.W.2 lodged the complaint against all the three persons under the provisions of the NDPS Act which was registered at Junagadh 'B' Division Police Station vide CR No.III-54/99 and the samples were sent to FSL for chemical analysis. 2.2. After registration of the complaint, the investigation was handed over to P.W.14, Rameshchandra Bhikhamdas Nimavat, PSI, who recorded the statement of witnesses. After receipt of the report from the FSL certifying that the muddamal articles sent for analysis were charas and as sufficient incriminating evidence was found against all the accused persons, they were charge-sheeted before the learned JMFC, Junagadh where it is registered as Criminal Case No.2859 of 1999. Since the offences under the NDPS Act are exclusively triable by a Court of Sessions, the learned JMFC, Junagadh committed the case to the Sessions Court, Junagadh where it is registered as Sessions Case No. 89 of 1999. CR.A/2532/2005 7/27 JUDGMENT 2.3. The learned Additional Sessions Judge, 5th Fast Track Court, Junagadh, to whom the case was made over for trial, framed charge against all the three accused persons for commission of the offences alleged against them as per the charge- sheet which was read over and explained to them to which they pleaded not guilty and claimed to be tried and thereupon they were put to trial by the learned Additional Sessions Judge. 2.4. To prove the culpability of the accused, the prosecution has examined and relied upon the oral testimonies of 15 witnesses, the details of which are given in paragraph 10 of the impugned judgment and order. 2.5. To prove the case against the accused persons, the prosecution has produced 10 documents and relied upon the contents of the same, the details of which are mentioned in paragraph 10 of the impugned judgment and order. CR.A/2532/2005 8/27 JUDGMENT 2.6. During the course of trial, accused No.2 absconded and, therefore, the trial court proceeded the trial against A-1 and A-3 and the trial against accused No.3 was kept pending. 2.7. After recording of the evidence of the prosecution witnesses was over, the trial court explained to A-1 and A-3 the circumstances appearing against them in the evidence of the prosecution witnesses and recorded their further statement as required under Section 313 of the Code. In their further statement they stated that false case has been filed against them. They have stated that they came to their sister's place at Dhasa and the police has forcibly taken them and their relatives have filed complaint against the police at Botad Court. However, they did not lead any evidence nor did they examine any witness in support of their defence. 2.8. On appraisal of the evidence on record, CR.A/2532/2005 9/27 JUDGMENT the trial Court held that the prosecution has proved that when A-1 and A-3 were intercepted at Platform No.7 of S.T. Depot, Junagadh, they were found in possession of contraband article charas and, therefore, their complicity in commission of the offence under Section 20 (b) (ii) read with Section 29 of the NDPS Act has been duly established and consequently they have been convicted for commission of the offence with which they were charged and accordingly they have been sentenced to undergo imprisonment for various terms to which reference is made in earlier paragraphs of this judgment, which has given rise to instant appeals at the instance of both A-1 and A-3. 3. Ms. Sadhna Sagar, learned advocate appointed by the Legal Aid Committee for the appellant in both the appeals, has candidly submitted that she does not challenge the order of conviction recorded against both A-1 and A-3. However, she has challenged the order of sentence CR.A/2532/2005 10/27 JUDGMENT imposed on A-1 and A-3. According to her, the minimum sentence for commission of the offence under section 20 (b)(ii) is RI for 10 years. In instant case, the trial court has imposed RI for 15 years and fine of Rs.2 lakhs and i.d., RI for 5 years against A-1 which, according to her, is harsh and disproportionate to the guilt of A-1, looking to the quantity of the contraband article charas recovered from him which was weighing 3 Kgs. 340 grams. She also emphasized that there is no prior conviction against A-1 for any offence under the NDPS Act. 3.1. In support of the aforesaid contention, she has relied upon the affidavit sworn by Nazir Ahmed Munshi, a brother of A-1. She, therefore, urged that the sentence imposed on A-1 may be suitably modified and it may be reduced to the minimum sentence of RI for 10 years and accordingly Criminal Appeal No.2532 of 2005 filed by A-1 may be partly allowed qua sentence. CR.A/2532/2005 11/27 JUDGMENT 3.2. So far as the sentence recorded against A-3 is concerned, the trial court has imposed sentence of RI for 10 years and fine of Rs.1 lakh i.d., RI for five years for the offence under Section 20 (b) (ii) read with Section 29 of the NDPS Act. According to her, the trial Court has committed a grave error in convicting A-3 for the offence under Section 20 (b) (ii) read with Section 29 of the NDPS Act. She has submitted that the offence was committed on 17.3.1999 and the judgment was delivered on 31.8.2004. Therefore, the the trial ought to have imposed punishment under the provisions of Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 ('the amended NDPS Act, 2001' for short) which has come into force on 2.10.2001 whereby benefit of rationalized sentence structure has been given to the accused. As per the amended NDPS Act, 2001 A-3 ought to have been sentenced under the rationalized sentence structure as the quantum of charas recovered from the A-3 was lesser than commercial quantity where CR.A/2532/2005 12/27 JUDGMENT the maximum punishment prescribed is RI for ten years. In instant case, the quantity of charas recovered from A-3 is 350 gram which is lesser than commercial quantity and, therefore, the trial court ought to have given benefit of rationalized sentence structure to A-3 and ought to have convicted A-3 for the offence under Section 20 (b) (ii) (B) of the amended NDPS Act, 2001 and ought to have imposed sentence bearing in mind the rationalized sentence structure. A-3 has already undergone RI for more than eight years. She, therefore, submitted that the sentence already undergone by A-3 may be treated as substantive sentence and he may be set at liberty forthwith. She, therefore, urged that the sentence imposed on A-3 may be suitably reduced to the aforesaid extent by allowing Criminal Appeal No. 1176 of 2006 filed by A-3 qua sentence. In sum and substance, Ms. Sadhna Sagar has submitted that A-1 deserves sympathetic CR.A/2532/2005 13/27 JUDGMENT consideration so far as sentence is concerned whereas A-3 may be sentenced to the period of imprisonment already undergone by him as substantive sentence looking to the quantity of contraband article charas recovered from him being 350 grams by granting the benefit of the rationalized sentence structure under the amended NDPS Act, 2001. She therefore urged to pass appropriate orders in both the appeals. 4. Per contra, Ms. Archna Raval, learned APP for the respondent – State of Gujarat has submitted that so far as the sentence imposed on A-1 is concerned, from him contraband article charas weighing 3 Kgs. 340 grams was recovered and looking to the quantity of the contraband article recovered from him the trial court has rightly imposed sentence of RI 15 years and fine of Rs.2 lakhs i.d., RI for five years which does not call for interference of this Court. She has also submitted that A-1 belongs to Kashmir and he used to come to Gujarat frequently and, CR.A/2532/2005 14/27 JUDGMENT therefore, in the facts and circumstances, the sentence imposed on A-1 by the trial court does not require any interference of this Court. 4.1. So far as the sentence imposed on A-3 is concerned, she has submitted that RI for ten years and fine of Rs.1 lakh and i.d., RI for 5 years has been imposed on him by the trial court. She has further submitted that A-3 also belongs to Kashmir and used to visit Gujarat frequently. Therefore, the benefit of rationalized sentence structure under the amended NDPS Act, 2001 should not be given to him and the sentence imposed on him by the trial court requires to be affirmed. She, has submitted that there is no merit in both the appeals and the appeals deserve to be dismissed. She, therefore, urged to dismiss both the appeals. 5. This Court has considered the submissions advanced by the learned advocates appearing for CR.A/2532/2005 15/27 JUDGMENT the parties and perused the impugned judgment and order. This Court has undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record which is read and re-read by the learned advocates for the parties with reference to broad and reasonable probabilities of the case. In light of the caution sounded by the Supreme Court while dealing with criminal appeals, this court has examined the entire evidence on record for itself independently of the trial Court and considered the arguments advanced on behalf of the accused persons and infirmities pressed, scrupulously with a view to find out as to whether the trial Court has rightly recorded the order of conviction and sentence. 6. At the outset, be it noted that to combat illicit drug traffic and drug abuse, both at the national and international levels, the penal provisions contained under the NDPS Act are stringent and punishment thereunder is harsh, CR.A/2532/2005 16/27 JUDGMENT therefore, as per the settled principles of criminal jurisprudence, the Court of law must insist on the strict compliance of the safeguards provided under the statutory provisions contained thereunder. 7. In this connection, it would be appropriate to refer to the observations made by the Supreme Court in the case of Bharatbhai Bhagwanjibhai v. State of Gujarat, AIR 2003 SC 7. In para 1 of the said judgment, the Supreme Court has observed as under: “The Statement of Objects and Reasons of the NDPS Act categorically records the inadequacy of the existing legislation to combat illicit drug traffic and drug abuse, both at the national and international levels and it is by reason of such deficiencies in the existing laws, the legislature thought it prudent to consolidate the same and bring about a comprehensive legislation so as to meet the exigencies of the situation. A plain CR.A/2532/2005 17/27 JUDGMENT look at the provisions of the NDPS Act read with the Statement of Objects and the Preamble would depict the intent of legislature as regards the offences under the said consolidated legislation, which stands expressed in rather explicit language as one of the most heinous ones in nature. This Court, however, in consonance with criminal jurisprudence of the country has been insisting on strict compliance of the safeguards provided under the statute so as to be in tune therewith”. 8. On perusal of the entire testimonial collections as well as the documentary evidence, it is seen that so far as conviction recorded against both A-1 and A-3 is concerned, we do not find any infirmity or illegality in the order of conviction recorded by the trial court except that the trial Court ought to have convicted A-3 for the offence under Section 20 (b) (ii) (B) of the amended NDPS Act, 2001 instead of Section 20 CR.A/2532/2005 18/27 JUDGMENT (b) (ii) of the NDPS Act for the reasons stated hereinafter. According to this Court, the order of conviction passed by the trial court is well- reasoned and elaborate and Ms. Sadhna Sagar, learned advocate for the appellant in both the appeals has rightly not challenged the conviction recorded against both A-1 and A-3. 9. Now the only question which is required to be examined by us in these two appeals is as to whether the trial court has rightly sentenced both A-1 and A-3. In this regard, this court has considered the submissions advanced by Ms. Sadhna Sagar. She has submitted that sympathetic view may be taken against A-1 and claimed that benefit of rationalized sentence structure under the amended NDPS Act, 2001 may be given to A-3. 10. So far as A-1 is concerned, from him contraband article charas weighing 3 Kg. 340 grams has been recovered. He has been convicted for commission of offence under Section 20 (b) CR.A/2532/2005 19/27 JUDGMENT (ii) read with Section 29 of the NDPS Act and sentenced to RI for 15 years and fine of 2 lakhs i.d., RI for 5 years. In support of the plea to consider the case of A-1 sympathetically, Ms. Sadhna Sagar has produced an affidavit sworn by Nazir Ahmed Munshi, who is a brother of A-1. He has, inter alia, stated that his father has expired earlier and widowed mother and one unmarried sister named Sahnaz are residing with the family of A-1 and there is no other earning member in the family of A-1. Prior to involvement in this NDPS Case, A-1 had not involved in any such type of cases and this is his first involvement in NDPS case. He undertook on oath that in future A-1 will not involve in any criminal case and he will stay in Kashmir State under his observation. Relying on the aforesaid sworn version of the brother of A-1, Ms. Sadhna Sagar submitted that minimum sentence for commission of offence under section 20 (b) (ii) of the NDPS Act may be CR.A/2532/2005 20/27 JUDGMENT imposed on the A-1. 11. In the case of Balwinder Singh v. Asstt. Commissioner, Customs and Central Excise, (2005) 4 SCC 146, the Supreme Court has narrated the relevant factors to be considered for reduction of sentence for the offence under NDPS Act. In the said case, the accused by convicted under the NDPS Act for the first time and, therefore, the sentence was reduced from RI for 14 years to RI for 10 years. 12. Applying the principles laid down by the Supreme Court in the above referred to the judgment to the facts of instant case, and more particularly in view of the sworn version of the brother of A-1, since there is no manner of dispute that this is the first conviction recorded against A-1 under the NDPS Act, A-1 deserves sympathetic consideration so far as imposition of sentence is concerned. In instant case the trial court has imposed RI for 15 years CR.A/2532/2005 21/27 JUDGMENT and fine of Rs.2 lakhs i.d., RI for 5 years under Section 20 (b) (ii) read with Section 29 of NDPS Act, which, according to this Court, is disproportionate to the contraband article recovered from him. Normally, in such type of cases, according to this court, minimum sentence of RI for ten years and fine of Rs.1 lakh would meet the ends of justice. Therefore, we are of the firm opinion that if A-1 is sentenced to RI for 10 years and fine of Rs.1 lakh i.d., RI for one year for the offence under Section 20 (b) (ii) and Section 29 of the NDPS Act, the same would serve the ends of justice. 13. This takes us to examine the submission made by Ms. Sadhna Sagar, claiming benefit under the rationalized sentence structure in favour of A-3 who has been sentenced to RI for 10 years and fine of Rs.1 lakh i.d., RI for 5 years for the offence under Section 20 (b) (ii) read with Section 29 of the NDPS Act. There is no dispute to the fact that the weight of the contraband CR.A/2532/2005 22/27 JUDGMENT Article charas recovered from him was 350 grams. 14. At the outset be it noted that the NDPS Act, 1985 as amended by the NDPS (Amendment) Act, 2001 is amended with a view to rationalize the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentences, the addicts and those who commit less serious offences are sentenced to less severe punishment. The statement of objects and reasons of the NDPS (Amendment) Act, 2001 is that Narcotic Drugs and Psychotropic Substances Act, 1985 provides deterrent punishment for various offences relating to illicit trafficking in narcotic drugs and psychotropic substances. Most of the offences invite uniform punishment of a minimum ten years rigorous imprisonment which may extend upto twenty years. While the Act envisages severe punishments for drug traffickers, it envisages reformative approach towards addicts. In view of the general delay in trial it has been CR.A/2532/2005 23/27 JUDGMENT found that the addicts prefer not to invoke the provisions of the Act. The strict bail provisions under the Act add to their misery. Therefore, it is proposed to rationalize the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentences, the addicts and those who commit less serious offences are sentenced to less severe punishment. This requires rationalization of the sentence structure provided under the Act. It is also proposed to restrict the application of strict bail provisions to those offenders who indulge in serious offences. 15. As per the Notification - SO 1055 (E) dated 19.10.2001, at Sr.No. 23, the quantity of 100 grams charas is a small quantity whereas 1 Kg. is a commercial quantity and, therefore, it cannot be disputed that the quantity of 350 grams of charas recovered from A-3 is neither a small quantity nor a commercial quantity. In instant CR.A/2532/2005 24/27 JUDGMENT case, the quantity of charas recovered from A-3 is lesser than commercial quantity but greater than small quantity. Therefore, the trial court ought to have convicted A-3 for commission of offence under Section 20 (b) (ii) (B) of the amended NDPS Act, 2001 and ought to have imposed sentence taking into consideration the rationalized sentence structure. However, the trial court, without considering this aspect, imposed RI for 10 years which is the maximum sentence which, according to us, is disproportionate to the quantity of charas recovered from A-3, i.e., 350 grams. Hence, according to us, the trial court has committed a serious error by not considering the objects and reasons of the amended NDPS Act, 2001 in its proper perspective. We, therefore, alter the conviction recorded by the trial Court against A- 3 from Section 20 (b) (ii) of the NDPS Act to conviction under Section 20 (b) (ii) (B) of the amended NDPS Act, 2001 and since he has already undergone RI for more than 8 years, we treat the sentence already undergone by him as CR.A/2532/2005 25/27 JUDGMENT substantive sentence for the offence for which he has been convicted by this Court. 16. Seen in the above context, Criminal Appeal No. 2532 of 2005 filed by A-1 deserves to be partly allowed qua sentence only while Criminal Appeal No. 1176 of 2006 filed by A-3 deserves to be partly allowed qua conviction and sentence. 17. For the foregoing reasons, both the appeals succeed in part and accordingly they are partly allowed. (i) While upholding the conviction recorded by the trial Court against A-1 under the NDPS Act, the sentence imposed on A-1 is modified and now A-1 is sentenced to RI for ten