CR.A/1672/2004 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1672 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 ? ========================================================= ASHOKKUMAR BALCHAND UMLANI - Appellant(s) Versus THE STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR RAJESH M AGRAWAL for Appellant(s) : 1, MS HANSA PUNANI, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 10/04/2008 ORAL JUDGMENT Appellant is original accused No.1. By the impugned judgment and order dated 14.9.04, he was convicted for offence punishable under section CR.A/1672/2004 2/8 JUDGMENT 20(b)(ii)(B) and section 23 of the Narcotics Drugs and Psychotropic Substances Act, 1985 ( hereinafter to be referred to as 'the NDPS Act'). He was sentenced to undergo rigourous imprisonment for seven years for each of the offences and fine of Rs.50,000/- was also separately imposed for each of the offences. In default of payment of fine, he was directed to undergo rigourous imprisonment for three years. 2. At the outset, learned advocate Shri Agrawal for the appellant submitted that he does not press the appeal in so far as the same relates to the conviction of the appellant under section 20(b)(ii) (B) of the NDPS Act is concerned. He, however, submitted that conviction and sentence under section 23 of the NDPS Act was erroneous and illegal. He submitted that the appellant would pray for reduction in sentence. 3. Accordingly, I have focused my attention to the above limited aspects of the matter raised before me. 4. From the material on record, it can be seen that the appellant was found in possession of 13 kg and 840 grams of ganja while he was travelling in an autorickshaw. Since his conviction for possession of such substance is not being challenged before me, his conviction under section 20(b)(ii)(B) of the NDPS Act is required to be confirmed. CR.A/1672/2004 3/8 JUDGMENT 5. Learned advocate Shri Agrawal, however, rightly pointed out that the appellant was erroneously convicted for offence under section 23 of the NDPS Act. Section 23 of the NDPS Act reads as follows:- “23. Punishment for illegal import into India, export from India or transhipment of narcotic drugs and psychotropic substances. Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence or permit granted or certificate or authorisation issued thereunder, imports into India or exports from India or tranships any narcotic drug or psychotropic substance shall be punishable. - (a) where the contravention involves small quantity, with rigourous imprisonment for a term which may extend to six months, or with fine, which may extend to then thousand rupees or with both; (b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigourous imprisonment for a term which may extend to ten years, and with fine; which may extend to one lakh rupees. (c) where the contravention involves commercial CR.A/1672/2004 4/8 JUDGMENT quantity, with rigourous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. Provided that he court may, for reasons to be recorded in the judgment impose a fine exceeding two lakh rupees.” As noted, the appellant was found in possession of certain quantity of ganja while he was travelling in an auto-rickshaw. There is nothing on record to suggest that he was involved in transhipping the said substance and ex facie, therefore, his conviction under section 23 of the NDPS Act was not justified. The same in my view is required to be set aside without further ado. 6. Central question which both the learned advocates debated before me pertains to the quantum of punishment awarded to the appellant for the offence under section 20(b)(ii)(B) of the NDPS Act. As noted, the learned Judge sentenced the appellant to 7 years of rigourous imprisonment and also imposed fine of Rs.50,000/- and in default of payment of fine, he was directed to undergo further RI of three years. 7. In a decision dated 4.4.2008 passed in CR.A/1672/2004 5/8 JUDGMENT Criminal Appeal No.1229 of 2004, this Court had an occasion to notice several decisions on the question of sentence in narcotic cases and made following observations:- “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 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 CR.A/1672/2004 6/8 JUDGMENT 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 sentence of six months.” “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/1672/2004 7/8 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.” 8. In the present case also, I find that against a small quantity of 1 k.g prescribed for ganja and 20 k.g. for commercial quantity, the appellant was found in possession of 13.840 kgs of ganja. It is not in dispute that he has no criminal antecedents. No other criminal case has been lodged against him. His jail record further suggests that he has already been in jail for a period of more than 4 years and 8 months. 9. Learned advocate Shri Agrawal further submitted that the appellant is an extremely poor person and he is unable to pay the hefty fine of Rs.50,000/- imposed by the learned Judge. 10. Considering all these aspects of the matter, I find that the imposition of sentence of 7 years of RI and fine of Rs.50,000/- need to be reduced. 11. In the result, the appeal is disposed of with the following directions: 1. Conviction under section 20(b)(ii)(B) of the CR.A/1672/2004 8/8 JUDGMENT NDPS Act is upheld. 2. Sentence imposed on the appellant for the said offence is however reduced to four years of R.I. and fine of Rs.10,000/- (Rupees ten thousand). In case of default of payment of fine, he shall serve further sentence of six months of R.I. 3. Conviction and sentence under section 23 of the NDPS Act are set aside. 4. If the appellant has already served out the sentence including the default sentence or paid fine, he shall be set free if not required in any other criminal case. 5. With the above directions, the appeal is disposed of. (Akil Kureshi, J.) (vjn)