CR.A/1402/2004 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1402 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE J.C.UPADHYAYA ========================================================= 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 ? ========================================================= RAVIKUMAR MALAYA GANGPUTRA - Appellant Versus THE STATE OF GUJARAT - Respondent ========================================================= Appearance : MR NL RAMNANI for Appellant. MR UR BHATT, ADDL.PUBLIC PROSECUTOR for Respondent-State ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 11/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.C.UPADHYAYA) CR.A/1402/2004 2/10 JUDGMENT The appellant- original accused No.1 in Sessions Case No.39/2001, has preferred this appeal challenging his conviction recorded by the learned Additional Sessions Judge, 7th Fast Track court, Gondal on 8.6.2004, for the offence punishable under Section 20-B(2)(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 [“NDPS Act” for short]. The appellant was sentenced to undergo R.I for ten years and to pay a fine of Rs. One Lac, and in default of payment of fine, S.I for one year. 2. The facts leading to the prosecution case, in nutshell, are as under: On 1st March, 2001, when C.P.I. Mr.Bapodara was on patrolling round, at that time two persons were found in a suspicious movement and, therefore, they were intercepted. Immediately, Dy.S.P. Mr.Rathod called two panchas and in their presence, the names of those two persons were asked and they disclosed their names to be Ravikumar Malaya Gangputra (accused No.1) and Rameshbhai Ramubhai Sidi (accused No.2). After undergoing the required procedure, a search was conducted. When the appellant-accused No.1 was CR.A/1402/2004 3/10 JUDGMENT searched, from the bag, which he was carrying, ganja weighing about 3 Kgs, was found. Samples were drawn from the muddamal ganja and they were packed and sealed and the remaining quantity of ganja was also packed and sealed. P.I. Mr.Bapodara lodged F.I.R against both the accused persons. The offence was registered and investigation was started. During the course of investigation, statements of material witnesses were recorded. The samples were sent to F.S.L for analysis and on receipt of the report from F.S.L., charge sheet came to be filed and Sessions Case No.39/2001 was registered. 3. The learned trial Judge framed charge against both the accused persons at Exh.7, to which they did not plead guilty and claimed to be tried. The prosecution adduced oral and documentary evidence. After completion of recording of the evidence, the learned trial Judge recorded further statements of both the accused persons under Section 313 of the Code of Criminal Procedure, in which they denied generally all the allegations levelled against them by the prosecution. CR.A/1402/2004 4/10 JUDGMENT 4. After appreciating the evidence on record and considering the arguments advanced on behalf of both the sides, the learned trial Judge recorded conviction of the appellant-accused No.1, for the offence punishable under Section 20-B(2)(b) of the NDPS Act and awarded sentence, as stated hereinabove. However, accused No.2 Rameshbhai Ramubhai Sidi came to be acquitted. 5. We have heard learned advocate Mr.Ramnani for the appellant and learned A.P.P. Mr.Bhatt for the State. 6. Learned advocate Mr.Ramnani for the appellant fairly submitted that considering the oral and documentary evidence adduced by the prosecution, the appellant is not able to challenge his conviction recorded by the learned trial Judge. The prosecution by leading oral and documentary evidence established the involvement of the appellant in this offence. However, Mr.Ramnani submitted that since from the possession of the appellant ganja weighing 3 Kgs was CR.A/1402/2004 5/10 JUDGMENT recovered, considering the Table attached to the NDPS Act and especially Entry- 55 regarding ganja, the quantity upto 1000 grams would amount to small quantity and the commercial quantity prescribed is 20 Kgs. It is, therefore, submitted that the contraband substance ganja seized from the possession of the appellant, would amount to more than small quantity and lesser than commercial quantity. It is submitted that considering the sentence prescribed under Section 20-B(2)(b) of the NDPS Act, when the contravention relates to the contraband substance involving the quantity lesser than commercial quantity, but, greater than small quantity, punishment prescribed is R.I for a term which may extend to ten years and with fine which may extend to Rupees One Lac. It is, therefore, submitted that in the instant case, the learned trial Judge awarded the maximum sentence prescribed under the Act. No cogent reasons are assigned by the learned trial Judge for awarding the maximum sentence prescribed under the Act. Therefore, it is submitted that the learned trial Judge has erred in awarding the maximum punishment of R.I for ten years and a fine of Rs. One CR.A/1402/2004 6/10 JUDGMENT Lac to the appellant. It is submitted that in this case, the appellant is in jail since last seven years and nine months. Therefore, it is submitted that the period undergone by the appellant in jail may amount to adequate punishment and, therefore, the sentence of imprisonment may kindly be altered. It is further submitted that so far as the amount of fine is concerned, the maximum amount of fine, i.e. Rs. One Lac, has been awarded and, therefore, the fine may be reduced considering the poor financial condition of the appellant, as the appellant himself was not in a position even to engage an advocate and through legal aid, he made arrangement to plead his case. 7. Learned A.P.P. Mr.Bhatt has vehemently opposed this appeal. However, he submitted that the appellant is in jail since last seven years and nine months. 8. We have considered the submissions advanced on behalf of both the sides and also considered the records and proceedings of the case in the context of the submissions. CR.A/1402/2004 7/10 JUDGMENT 9. On behalf of the appellant, conviction is not challenged, but, suffice it to say that both the panchas of the seizure panchnama and the witness, who weighed the muddamal contraband ganja, turned hostile and did not support the case of the prosecution. However, considering the depositions of P.I. Mr.Bapodara (Exh.25), police constable Mr.Sisodiya (Exh.35), police constable Mr.Chauhan (Exh.37), Head Constable Mr.Gosai (Exh.41), Police Constable Mr.Pathan (Exh.44), Head Constable Mr.Jadeja (Exh.51) and Investigating Officer P.S.I. Mr.Patel (Exh.59), together with the documentary evidence, like seizure panchnama and the report of the FSL, the prosecution successfully proved its case beyond reasonable doubt regarding possession of 3 Kgs ganja by the appellant- accused No.1, without pass or permit, and his involvement therein. The prosecution also successfully proved, beyond reasonable doubt, the seizure of the contraband ganja from the appellant. The F.S.L analysed the muddamal substance/sample and reported that the same was ganja. Under such circumstances, we do not find any illegality or irregularity committed by the learned trial Judge in CR.A/1402/2004 8/10 JUDGMENT recording the conviction of the appellant. 10. However, the prosecution successfully proved that the quantity of ganja seized from the possession of the appellant was weighing 3 Kgs. Considering the punishment prescribed under Section 20-B(2)(b) of the NDPS Act, the maximum punishment is R.I for ten years and a fine of Rs.One Lac, when the contravention relates to the contraband substance involving the quantity lesser than the commercial quantity, but, greater than the small quantity. Considering the Table attached to the Act and especially Entry-55 relating to ganja, it is prescribed that the quantity upto 1000 grams would amount to small quantity and above 20 Kgs would amount to commercial quantity. Thus, in the instant case, the quantity of 3 Kgs of ganja, seized from the possession of the appellant, would amount to the quantity lesser than the commercial quantity, but, greater than the small quantity. In the instant case, therefore, the learned trial Judge awarded the maximum sentence of imprisonment and maximum amount of fine prescribed under the Act. While awarding the maximum sentence, CR.A/1402/2004 9/10 JUDGMENT the learned trial Judge observed that the offence committed by the appellant is serious in nature. Except this, no any cogent reason is assigned for imposing the maximum sentence of imprisonment and fine. The appellant is in jail, in connection with this offence, since last seven years and nine months. Considering the entire evidence on record, there is nothing to show that in the past the appellant was involved in any offence under the NDPS Act. There is nothing to suggest that the appellant is involved in trafficking narcotic drugs. When such is the situation, we do not find this case, wherein the maximum sentence of imprisonment and fine should be awarded to the appellant. Considering the poor financial condition of the appellant, as submitted by learned advocate Mr.Ramnani, the amount of fine is required to be suitably reduced. 10.1 In the light of the above discussion, we are of the considered opinion that the period undergone in jail by the appellant, would be the appropriate sentence of imprisonment and the sentence of R.I for ten years is required to be altered to the period CR.A/1402/2004 10/10 JUDGMENT already undergone by the appellant in jail. The fine of Rs. One Lac is also required to be reduced to Rupees Fifty Thousand, and in default of payment of fine, the appellant shall undergo R.I for five months. 11. For the foregoing reasons, the appeal is partly allowed. The conviction of the appellant under Section 20B(2)(b) of the NDPS Act recorded by the learned Additional Sessions Judge, 7th Fast Track Court, Gondal, in Sessions Case No. 39/2001 by judgment and order dated 8.6.2004 is hereby confirmed. The sentence awarded by the trial Court is altered from R.I for ten years and a fine of Rs. One Lac, in default, S.I for one year, to R.I for the period already undergone by him and a fine of Rs.50,000/-, in default, to undergo S.I for five months. [ A.L. Dave,J.] [ J.C.Upadhyaya,J.] (patel)