CR.A/954/2003 1/25 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 954 of 2003 with CRIMINAL APPEAL No. 2277 of 2004 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 ? ================================================= CRIMINAL APPEAL NO. 954 OF 2003 NOORMOHMAD ABDUL RAZAK SHEIKH @ FARID Versus STATE OF GUJARAT & 1 WITH CRIMINAL APPEAL NO. 2277 OF 2004 MOHAMMED IQBAL GULAM MOHAMMED SHAIKH Versus STATE OF GUJARAT & 1 ================================================= Appearance : CRIMINAL APPEAL NO. 954 OF 2003 MR JM PANCHAL for Appellant(s) : 1,MR KJ PANCHAL for Appellant(s) : 1, CR.A/954/2003 2/25 JUDGMENT MR. R.C.KODEKAR, APP for Respondent No.1 MR. DHAVAL NANAVATI for Respondent No. 2 CRIMINAL APPEAL NO. 2277 OF 2004 MR RAJESH AGARWAL for Appellant MR. R.C.KODEKAR, APP for Respondent No.1 MR. DHAVAL NANAVATI for Respondent No. 2 ============================================== CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE R.H.SHUKLA Date : 5/02/2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) 1.Challenge in these two Criminal Appeals filed under Sections 374 of the Code of Criminal Procedure, 1973 (“the Code” for short) is to the correctness of the judgment and order dated 11.6.2003 rendered in Sessions Case No. 373 of 2000 with Sessions Case No. 76 of 2001 by the learned Additional Sessions Judge, Court No.6, Ahmedabad City, by which the Appellant of Criminal Appeal No. 954 of 2003, i.e. Accused No.1 of Sessions Case No. 373 of 2000 (“A-1” for short) and the Appellant of Criminal Appeal No. 2277 of 2004, i.e. CR.A/954/2003 3/25 JUDGMENT Accused No.3 of Sessions Case No. 373 of 2000 (“A-3” for short), have been convicted for the offence punishable under Section 20(b) read with Section 29 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act” for short), and A-1 is sentenced to suffer RI for 12 years and fine of Rs.1 lac i.d. RI for 3 months for the offence punishable under Section 20(b) read with Section 29 of the NDPS Act and also RI of 6 months and fine of Rs.10,000/- i.d. RI for 1 month, for the offence punishable under Section 20(b) of the NDPS Act, and A-3 is sentenced to suffer RI for 12 years and fine of Rs.1 lac i.d. RI for 3 months for the offence punishable under Section 20(b) read with Section 29 of the NDPS Act. It is also ordered that both the substantive sentences imposed on A-1 shall run concurrently. 2.Briefly stated the prosecution case as disclosed from the complaint, and as unfolded during trial, is as under: 2.1 PW-3 Jitendra N. Raghuvanshi, CR.A/954/2003 4/25 JUDGMENT Intelligence Officer, NCB, Zonal Unit, Ahmedabad, received a secret information to the effect that one Mohamad Iqbal of Mumbai was traveling in a bus bearing registration no. GJ-4U-9934 from Mumbai to Ahmedabad and was carrying a consignment of charas, and he had to deliver the same to one Imtiaz of Ahmedabad. He, therefore, recorded the said information in writing and also conveyed the said information to his staff members as well as superior officer, i.e. Zonal Director, NCB, Ahmedabad. He, thereafter requisitioned the services of 2 panchas through ATS officer. On arrival of 2 panchas, they were also conveyed the said secret information received by him. 2.2 It is further case of the complainant that they were carrying contraband article Charas. Thereafter PW-3 along with the members of the raiding party went to Toll Tax (Check Post) at Vasad at 6:10 hours in the morning on 21.8.2000, while another team comprising ATS staff stationed CR.A/954/2003 5/25 JUDGMENT at Jetalpur. On reaching at the Check-Post, officers kept a vigil on the buses coming from Mumbai and at about 9:10 hours, a luxury bus bearing registration no. GJ-4U-9934 was spotted approaching and, therefore, signal was given to stop and both the panch witnesses along with PW-3 Jitendra N. Raghuvanshi and staff members boarded the bus and rest of the NCB officers followed the bus in a government vehicle. 2.3 As per the further case of the complainant, it is alleged that NCB officers had identified the person who was sitting on Seat No.3 of the said bus and appraised the panch witnesses to the effect that when the said person gets down from the bus, his personal search will be done. 2.4 As per the further case of the complainant, the said person alighted at Jetalpur bus stop and therefore the officers and the panchwitness also followed the said person and in the meantime other NCB officers and staff members reached the place. CR.A/954/2003 6/25 JUDGMENT 2.5 As per the further case of the complainant, ATS staff members were also present there, keeping surveillance. 2.6 As per the further case of the complainant, the person alighted from the bus met another person, that is Accused No.2, who is not before the Court, near Tea Stall and handed over one maroon coloured bag to him. They were intercepted by the NCB officers in presence of other officers and panch witnesses. 2.7 As per the further case of the complainant, usual procedure under Section 50 of the NDPS Act was followed and thereafter search was made. During the search from the person of A-3, Mohammad Iqbal Gulam Mohamad Sheikh, who alighted from the Bus, Rs.560/- in cash, driving license and the ticket of Suvidha Travels, Mumbai, in the name of Iqbal Sheikh was found. 2.8 As per the allegation made in the complaint, from maroon coloured bag, which CR.A/954/2003 7/25 JUDGMENT was given to A-2 Imtiaz Hussain Hasubhai Sheikh, two packets packed with a Khakhi adhesive tape were found. On opening the adhesive tape, the contents were found to be packed in a newspaper tied with thread and having a transparent plastic bag containing some greenish black coloured substance and it is alleged that by a testing kit, a test was carried out and the primary result showed that the substance was charas. During the personal search of A-2 Imtiaz Hussain Hasubhai Sheikh, cash of Rs.670/-, driving license and visiting card of Hotal Trupti, Narol, Ahmedabad were found. During interrogation, it was found that he was working for his uncle, i.e. Accused No.1 – Noormohmad Abdul Razak Sheikh @ Farid of Shahpur and had come to take delivery of charas on behalf of the Accused No.1. During interrogation of Accused No.3 – Mohmad Iqbal Gulam Mohamad Sheikh, it was found that he had brought charas from Mumbai and the same was to be delivered to the Accused No.2, who CR.A/954/2003 8/25 JUDGMENT has to ultimately deliver the same to Accused No.1. During further interrogation, it was revealed that Accused No.3 was to stay in Hotel Trupti at Narol where Farid was to come with payment after testing charas. 2.9 As per further case of the complainant, all the officers of NCB, ATS, panch and A-2 and A-3, all came to Hotel Trupti, Narol and A-3 checked-in Room No.109 after making due entry in the hotel register and thereafter all the persons entered the room and waited for A-1 to come. In the meantime, weighing, sampling and sealing work was done by NCB officers. From one packet Exh.A, charas weighing about 4.036 Kgs. and from another packet Exh.B, charas weighing 1.970 Kgs. was found, and six samples of 25 grams each were drawn and marked as A1, A2, A3 and B1, B2, B3 respectively. 2.10 As per the further case of the complainant, A-1 entered the Hotel room and he was given option under Section 50 of the NDPS Act and thereafter search was made. CR.A/954/2003 9/25 JUDGMENT From his personal search, cash of Rs.780/- and transparent plastic bag containing greenish black substance was found. The same was tested by a testing kit and a primary result showed that the said substance was charas. The net weight of the said greenish black substance, which was found from the personal search of the A-1, was 96 grams. Therefore, 2 samples of 25 grams each were drawn and sealed in presence of panchas. The samples were marked C1 and C2 and the panchnama was concluded at 6:00 pm on 21.8.2000. 2.11 As per the further case of the complainant, all the three accused were summoned under Section 67 of the NDPS Act on 21.8.2000 at 8:00 pm to remain present and to give information under Section 67 of the NDPS Act. The statements under Section 67 of the NDPS Act were recorded on 22.8.2000. Thereafter on 22.8.2000, all the three accused were arrested and they were produced before the Court and a report under Section CR.A/954/2003 10/25 JUDGMENT 57 of the NDPS Act was made to the superior officers, and the muddamal was sent to FSL for analysis and statements of the witnesses were recorded. 2.12 Thereafter, further investigation was handed over to Tomar and after report of the laboratory, PW-5 Manish H. Bhalla filed the complaint in the City Sessions Court, Ahmedabad, where it is registered as Sessions Case No. 373 of 2000. 2.13 As per the further case of the complainant, during the course of investigation, it was revealed that another two accused named (1) Rafikbhai Kasambhai Ajmeri and (2) Gulamnabi Mohemmadbhai Mansuri (of Sessions Case No. 76 of 2001) were also very much involved in the said scam and therefore, statement of those two accused was also recorded under Section 67 of the NDPS Act and thereafter they were arrested and a complaint came to be filed against those two accused in the City Sessions Court, Ahmedabad, where it is registered as Sessions CR.A/954/2003 11/25 JUDGMENT Case No. 76 of 2001. 2.14 Since both the Sessions Case were arising out of the same complaint and same incident, the learned Additional Sessions Judge, City Sessions Court, Ahmedabad, to whom the case was made over for trial, consolidated both the Sessions Cases and framed charge against the accused of both the Sessions Cases. Accused of both the Sessions cases pleaded not guilty to the charge and claimed to be tried, therefore, they were put to trial by the learned Additional Sessions Judge, City Sessions Court, Ahmedabad. 2.15 To prove the culpability of the accused persons of both the Sessions Cases, the prosecution has examined and relied upon the oral testimonies of 5 witnesses, the details of which are given in paragraph 2 of the impugned judgment and order. 2.16 To prove the case against the accused persons of both the Sessions Cases, the prosecution has produced number of CR.A/954/2003 12/25 JUDGMENT documents and relied upon the contents of the same, the details of which are mentioned in paragraph 3 of the impugned judgment and order. 2.17 After recording of the evidence of the prosecution witnesses was over, the trial court explained to all the accused 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 denied the prosecution case in its entirety and stated that they do not know each other. They were called either from Hospital or from their residences and under duress, compulsion and force, their statements have been recorded under Section 67 of the NDPS Act and signature is obtained beneath the same. However, they did not lead any evidence nor did they examine any witness in support of their defence. CR.A/954/2003 13/25 JUDGMENT 3.On appraisal of the evidence on record, the trial Court held that the prosecution has proved the complicity of A-1, A-2 and A-3 of Sessions Case No. 373 of 2000. It has been proved that A-3 came from Bombay in Bus with contraband article Charas which was handed over to A-2 in presence of members of the raiding party as well as panchas at Jetalpur, which in fact was to be handed over to A-1 in Hotel Trupti and all the three accused persons were found in Hotel Trupti with contraband article Charas. Therefore, complicity of all the three accused of Sessions Case No. 373 of 2000 for commission of the offence punishable under Section 20(b) read with Section 29 of the NDPS Act has been duly established, therefore all have been held guilty for the offence punishable under Section 20(b) read with Section 29 of the NDPS Act and sentenced to suffer RI for 12 years and fine of Rs.1 lac i.d. RI for 3 months, and A-1 has also been sentenced to undergo RI of 6 months and fine of CR.A/954/2003 14/25 JUDGMENT Rs.10,000/- i.d. RI for 1 month for the offence punishable under Section 20(b) of the NDPS Act, whereas the charge leveled against both the accused of Sessions Case No. 76 of 2001 has not been duly proved by the prosecution, therefore, they were acquitted of the offence with which they were charged. 4.It is this order which is now the subject matter of challenge in these two Criminal Appeals, i.e. Criminal Appeal No. 954 of 2003 filed by Accused No.1 and Criminal Appeal No. 2277 of 2004 filed by Accused No.3. It may be noted that the Accused No.2 has not filed any appeal challenging the order of conviction and sentence recorded against him. 5.Mr. J.M.Panchal, learned advocate of the A-1, who has filed Criminal Appeal No. 954 of 2003 has submitted that as per his information A-1 has died in jail. However, he has not received any information with regard to his exact date of death from his near relatives, nor has he received any instruction from his near relatives seeking leave to continue the CR.A/954/2003 15/25 JUDGMENT Appeal. Though tried to contact the advocate of the trial Court who has conducted the case, from him also he has not received any information. He, therefore, urged to pass appropriate order with regard to abatement of the Appeal after getting the correct information from the jail authority and verifying the same, about the death of A-1 as well as the date on which he has died. 6.In response, Mr. R.C.Kodekar, learned APP has confirmed the submission made by Mr. J.M.Panchal, learned advocate of the Applicant with regard to the death of A-1 while he was in jail. He has submitted that A-1 has died in jail and postmortem on his dead body was performed on 3.12.2007 by the Medical Officer, Civil Hospital, Ahmedabad. He also therefore urges to pass appropriate order of abatement of the Appeal filed by A- 1. In support of this he has also produced the certificate showing the date on which the PM was performed on the dead body of A-1. 7.In view of this and more particularly a CR.A/954/2003 16/25 JUDGMENT perusal of the certificate dated 3.12.2007, since A-1 has died in jail and his near relatives have not applied for leave to continue the Appeal, in terms of proviso to sub-Section 2 of Section 394 of the Code, Criminal Appeal No. 954 of 2003 filed by A-1 abates, and accordingly it is abated. 8.Mr. Rajesh Agarwal, learned advocate of the A-3, who has filed Criminal Appeal No. 2277 of 2004, has submitted that he does not challenge the order of conviction on merits. However, he submitted that looking to the quantity of the contraband article Charas recovered from A-3, sentence of 12 years imposed on him is disproportionate and it is not commensurate with the quantity of contraband article recovered from him. Besides this, he has also submitted that there are mitigating circumstances in favour of the A-3 and also this is the first conviction recorded against the A-3 under the NDPS Act, for imposing minimum sentence of 10 years. He, therefore, urges that the order CR.A/954/2003 17/25 JUDGMENT of sentence may be suitably modified by reducing the same to the minimum sentence prescribed under the NDPS Act, which according to him is RI of 10 years. He, therefore, urges to pass appropriate orders in this regard. 9.In support of the aforesaid plea, Mr. Rajesh Agarwal, learned advocate for A-3 has tendered affidavit sworn by A-3 himself before the Jailor, Ahmedabad Central Prison, wherein it has been inter alia stated that he is in custody as under-trial prisoner and convict from the date of his arrest on 22.8.2000, i.e. for the last almost 7 years and 6 months. He is an old aged person leading retired life and at present, undergoing sentence of imprisonment at Central Prison, Sabarmati, Ahmedabad. He is a very poor person and his wife is aged 58 years. He has further stated in the affidavit that he has two married daughters and two sons out of which one is unmarried. The income of both the sons is very meager. CR.A/954/2003 18/25 JUDGMENT Due to poverty, his two sons are not in a position to provide medical treatment to his wife as they are unable to bear the medical expenses. He has stated that though he is alive, he is not in a position to help his sons to bear the said medical expenses as he is in custody for the last seven and half years. Though he is alive, he is of no use to his family and more particularly to his wife and for the rest of her life, his presence is absolutely necessary so that he can help her and provide her medical treatment and try to bear her medical expenses and perform his duty as a husband. He has further stated in the affidavit that he has no criminal antecedents and he has been never involved in any offence under the NDPS Act. He is a very straight forward person and he is not a previous convict. He has stated that it is unfortunate to his wife and family members that he has been involved in this case and is undergoing imprisonment since long. He has stated that he and his CR.A/954/2003 19/25 JUDGMENT family members are very poor persons and are not in a position to pay fine. He has stated that poverty is not a crime and one has to lead the life as per the wish of the God. He has further stated in his affidavit that taking into consideration the exceptional facts and circumstances and also the fact that he is not a previous convict, he assure this Hon'ble Court that he will never indulge in such activities in future and therefore, leniency in the sentence requires to be shown to him and to his family members by reducing the substantive sentence and as he and his family members are poor persons, he is not in a position to pay fine and for non-payment of fine he has to undergo the sentence in default of payment of fine and so the sentence in default of payment of fine may be reduced to 3 to 4 months so that due to poverty, he should not remain in jail any longer. He has further stated in his affidavit that this Hon'ble Court may show mercy to him taking into consideration the CR.A/954/2003 20/25 JUDGMENT exceptional and peculiar facts and circumstances so that the real justice is done to him and his family members and he can lead the remaining period of his life with his family members. 10.Referring to the aforesaid sworn versions of the A-3, Mr. Rajesh Agarwal, learned advocate for A-3 has submitted that the minimum sentence of 10 years and fine of Rs. 1 lac and in default of payment of fine RI of 3 months may be imposed on A-3. 11.Mr. R.C.Kodekar, learned APP for Respondent No.1 and Mr. Dhaval Nanavati, learned advocate for Respondent No.2 have submitted that no leniency may be shown to A-3 since offenders of drug trafficking are menace to the society and they spoil the career of the youth of the society and because of their selling narcotic substance to youth, health of the youth is getting deteriorated and they are rendered of no assistance to the society in future. Therefore no leniency should be shown to A-3 so far as awarding the minimum CR.A/954/2003 21/25 JUDGMENT sentence is concerned. 12.We have given our anxious considered thought to the rival submissions made by the learned advocates appearing for the parties with regard to awarding of minimum sentence to A- 3. 13. 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. 14.In the case of Shantilal v. State of M.P., (2008) 1 SCC (Cri), Supreme Court, in para 31 of the reported decision has held as under: “31.The next submission of the learned counsel for the appellant, however, has substance. The term of imprisonment in CR.A/954/2003 22/25 JUDGMENT default of payment of fine is not a sentence. It is a penalty which a person incurs on account of non-payment of fine. The sentence is something which an offender must undergo unless it is set aside or remitted in part or in whole either in appeal or in revision or in other appropriate judicial proceedings or “otherwise”. A term of imprisonment ordered in default of payment of fine stands on a different footing. A person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. He, therefore, can always avoid to undergo imprisonment in default of payment of fine by paying such amount. It, is, therefore, not only the power, but the duty of the court to keep in view the nature of offence, circumstances under which it was committed, the position of the offender and other relevant considerations before ordering the offender to suffer imprisonment in default of payment of fine.” CR.A/954/2003 23/25 JUDGMENT 15. The ratio laid down by the Supreme Court in above referred to two judgments is squarely applicable to the facts of the instant case. In the instant case, as per the sworn version of the A-3 himself, he was never convicted under the NDPS Act in the past and this is his first conviction. It is true that for commission of offence under Section 20(b) of the NDPS Act, minimum sentence is 10 years which may extend to 20 years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to 2 lakh rupees. However, normally, in such type of cases, according to Supreme Court, minimum sentence of RI for 10 years and fine of Rs. 1 lac and i.d. RI of 3 months, would meet the ends of justice. 16.In aforesaid view of the matter, we are of the opinion that if A-3 is sentenced to suffer RI of 10 years and fine of Rs.1 lac and i.d. RI of 3 months for the offence punishable under Section 20(b) read with Section 29 of the NDPS Act, the same would CR.A/954/2003 24/25 JUDGMENT serve the ends of justice. 17.Seen in the above context, the sentence imposed on A-3 deserves to be modified by allowing this appeal qua sentence only by reducing it to minimum sentence of 10 years. 18.For the foregoing reasons: (A) Criminal Appeal no. 954 of 2003 filed by A-1 stands abated, (B) Criminal Appeal No. 2277 of 2004 filed by A-3 succeeds in part and accordingly it is partly allowed qua sentence only. The impugned judgment and order of conviction passed against A-3 is confirmed and maintained.