1 apeal 274 of 2011 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 274 OF 2011 WITH CRIMINAL APPLICATION NO.457 OF 2011 1. Rajesh Ramjagir Chaudhari, Age: 26 years, Indian National,. Occn. Labour r/o Aasudgaon, Room of Dipak Uddar, Near Gaondevi Temple, Khanda Colony, Panvel,District: Thane. 2. Bhimsen Birendrakumar Bharati, @ Giri, age: 23 years, Indian National, Occn. Labour, r/o Asudgaon, Room owned by Vilas Sheth Khanda Colony, Panvel, (presently at Thane Prison) .. Appellants. -versus The State of Maharashtra .. Respondent. Mr. Sherali Khan, for the Appellants. Mrs. A. A. Mane, APP for the Respondent State. CORAM: R.C. CHAVAN, J. DATED: 26th July, 2011 Judgment 1. This appeal questions the conviction of the appellants for the offence punishable Sections 20 (ii) (B) Narcotic Drugs and Psychotropic Act (for short called as “N.D.P.S Act”) and sentence of R.I. for two years with fine of 2 apeal 274 of 2011 Rs.20,000/- or in default S.I. for one month, imposed on each of the two appellants, by the learned Special Judge under N.D.P.S Act, Thane, in Special Case No.NDPS 11 of 2010. 2. This appeal though filed in the year 2011, was taken up for out of turn hearing because the appellants are stated to have served about 18 months of their sentence of 24 months of imprisonment. Learned counsel for the appellants submitted that he has instructions from the appellants not to press the appeal on merits. 3. Facts which are material for deciding this appeal are as under:- On 23rd January, 2010, police received information that two persons were to come to Hajimalangwadi at 5.00 p.m. to sell Charas. The names of the two appellants were also disclosed. The information was conveyed to Senior Police Inspector and entry was made in the ‘Khabari book’. Senior Police Inspector reduced the complaint into writing and sent it to the Officer immediately superior to him. After receiving telephonic permission to carry out raid, a raiding party was gathered, panchas were called and pre-trap panchnama was prepared in the Crime Branch Unit. Raiding party proceeded to the place where the appellants were supposed to come. After the appellants came, they were surrounded by raiding party. Police inspector informed the appellants about intention to search the appellants and offered to take the appellants to 3 apeal 274 of 2011 a Gazetted Officer or Magistrate, for the purpose of search. Since they declined, they were searched and were found to be in possession of Charas which was tested with the Field Testing Kit. Each of the appellant was carrying a separate packet. Sample of 50 grams was taken from each of the appellants. Sample Packets, as well as remaining bulk quantities were separately sealed with the lac seals. Panchnama of the trap was drawn and samples were sent to the Laboratory which reported that the articles concerned were Charas. On completion of investigation chargesheet was sent up alleging that the appellant Rajesh Choudhari was found in possession of 960 grams of Charas and appellant Bhimsen Birendrakumar Bharati @ Giri was found in possession 915 grams of Charas. 4. The learned trial Judge charged the appellants for the offence under Section 29 and Section 8(a) read with Section 20 and 29 of the N.D.P.S. Act. Since they pleaded not guilty to the charge, they were put on trial at which the prosecution examined in all five witnesses to bring home the guilt of the appellants. After considering the prosecution evidence in the light of defence raised, the learned Judge held both the appellants guilty of the offence punishable under Section 20(ii) (B) of the N.D.P.S.Act, convicted and sentenced them as mentioned earlier. He acquitted them of the offence punishable under Section 29 of the N. D. P. S. Act. Aggrieved 4 apeal 274 of 2011 thereby the appellants have preferred this appeal. 5. I have heard learned counsel for the appellants and learned Additional Public Prosecutor for the State. With the help of both the learned counsel, I have gone through the record. Learned counsel for the appellants on instructions from the appellants states that he does not press the appeal on merits and rightly so because examination of record proves complicity of the appellants in possession of 960 and 915 grams of Charas. 6. Learned counsel for the appellants submits that the learned trial Judge should not have imposed sentence of R.I. for two years on the appellants, considering that the appellants had responsibility of their families. The learned Judge also observed in para 43 of his judgment that the appellants were possibly involved in commission of the offence due to poverty. Therefore, according to learned counsel for the appellants, the sentence imposed should have been lenient. He submitted that in relation to the contraband article Charas the small quantity is 100 grams. For small quantity, the punishment prescribed is rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both. Therefore, according to him fort the quantities seized, imprisonment for six months should have been sufficient, though section 20 (ii) (B) of the N. D. P. S. Act, enables 5 apeal 274 of 2011 sentencing a person to imprisonment which may extend to 10 years and fine which may extend to Rs.1,00,000/-. According to learned counsel for the appellant, commercial quantity for charas is one Kg and quantity found with appellants was less than commercial quantity and therefore, there was no warrant to sentence the appellants to R.I. for two years. 7. As rightly submitted by the learned Additional Public Prosecutor, appellants were found in possession of 960 and 915 grams of charas that is only 40 grams and 85 grams less than the commercial quantity. She submitted that the learned Judge had been more than lenient in sentencing, since, if proportionality of quantity seized were to be considered with commercial quantity, the appellants should have been subjected to at least 9 years of imprisonment. Considering the quantity seized, it seems that the learned Judge has been lenient in sentencing the appellants to suffer R.I. for two years as the quantities of Charas in appellants’ possession was just below commercial quantity. It cannot be said that sentence imposed is irrationally harsh calling for any interference. In view of this appeal is dismissed. 8. Criminal Application No.457 of 2011 for bail does not survive, hence disposed of. (R. C. CHAVAN, J.)