( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 92 OF 2010 Bhagwansing s/o. Raghunathsing Parmar .. Appellant Age. 22 years, Occ. Labour, R/o. Bajrang Mohalla, Maksi, Tq. Maksi, Dist. Sajapur (M.P.) Versus The State of Maharashtra .. Respondent Shri A.G. Kanade, Advocate for the appellant. Shri K.M. Suryawanshi, A.P.P. for respondent/State. CORAM : P.R. BORKAR,J. DATED : 08.03.2010 P.C. :- 1. This is an appeal preferred by accused Bhagwansing, who was accused No. 2 in Special Case No. 7 of 2006, decided by the Additional Sessions Judge, Parbhani, on 20.12.2007, whereby present appellant so also original accused No.1 Udaysing, were convicted of offence punishable under Section 20 (b) of the Narcotic Drugs and Psychotropic Substance, Act (hereinafter referred to as “N.D.P.S. Act”) and each of the accused was sentenced to suffer rigorous imprisonment for ( 2 ) four years and to pay fine of Rs. 1000/-, in default, simple imprisonment for six months. 2. This appeal is preferred after condonation of delay of 660 days mainly on the ground of parity. In the appeal filed by original accused No.1 Udaysing, bearing Criminal Appeal No. 234 of 2009, this Court by order dated 16.09.2009 reduced the substantive sentence of rigorous imprisonment of four years to rigorous imprisonment of three years and remaining part of sentence was maintained. 3. Heard learned advocate Shri A.G. Kanade for the appellant. He states that the facts giving rise to both the appeals are identical. Both the accused are of same age and there is no reason why the appellant should not get same sentence which was given to original accused No.1 – Udaysing. 4. Brief facts giving rise to the prosecution case may be stated as below :- . It is prosecution case that on 01.10.2007, at about 1.30 p.m. present appellant Bhagwansing and original accused ( 3 ) No.1 Udaysing were found sitting with rexine bags on plat- form No.5 of Purna Railway Station. Police Constable Madhav Kendre and other policemen who were on duty went near the boys and asked their names. Both accused persons told their names as Udaysing and Bhagwansing. The policemen enquired about what was there in the bags. The accused initially said that there was ordinary luggage. The accused were asked to open the bags. Then the accused told that said bags contained ganja. Police Constable Madhav Kendre informed P.S.I. Chouse, regarding the same. P.S.I. Chause, who was at Nanded, came to the spot at about 3.00 p.m. There he saw both the accused persons sitting with rexine bags. On that day it was “Dhamma Chakra Parivartan Din” and there was heavy crowd on plat-form No. 5 of the Railway Station. Therefore, along with muddemal, the accused were taken to the Police Station (Railway), Purna. A police constable was sent for calling the Tahsildar, but the Tahsildar was not available. Thereafter, a letter was given to the Station Master to come and attend the search of the accused. Accordingly, the Station Master came and in his presence and in presence of two panchas, bags in the possession of the accused were opened. It was found that each bag contained 10 kgs. Ganja. ( 4 ) Sample of 100 gms. of ganja from each bag was taken. The sample packets were labelled and sealed. The label was signed by the Station Master, Panchas and the Investigating Officer. Thereafter, panchanama was drawn. The Muddemal article was given to Muddemal Clerk of Railway Police Station, Purna. Subsequently the sample was sent to Chemical Analyser and ultimately the charge-sheet was sent. 5. Heard Adv. Shri A.G. Kanade for the appellant and A.P.P. Shri K.M. Suryawanshi for the respondent/State. 6. The only prayer that is made by Adv. Shri Kanade is that considering judgment of this Court in Criminal Appeal No. 234 of 2009, decided on 16.09.2009, this appeal may be allowed and the substantive sentence should be reduced. He also prayed that the sentence awarded in default of fine may also be reduced. 7. So far as the sentence is concerned, this Court observed in para 6 of Criminal Appeal No. 324 of 2009, as under:- ( 5 ) “6. The age of appellant at the time of commission of the offence was 20 (twenty) years. The charge-sheet itself shows that the appellant was 20 years old and his occupation was that of a labourer. The panchanama and other documents would show that there was a religious function of Sikhs called "Hallabol" and that there was a lot of crowd of passengers on account of yet another religious function which was in the proximity of that day. Several passengers were likely to travel to Nagpur for attending "Dhamma Chakra Pariwartan Din". It is probable that young boys were being used for transportation of the ganja. The main culprit remains behind the screen and the carriers of the ganja are persons who are caught by the Police. The inexperienced appellant might have fallen prey to allurement of earning easy money at the relevant time. The fact that he did not try to flee when the Police approached him is also indicative of his absence of being hardened criminal. It is pertinent to note that but for nature of the offence benefit could be available to such young accused person U/s 6 of the Probation of Offenders Act. In case of a youth below 21 years of age, it is mandatory that a report should be called and ordinarily such a young person should be given benefit of probation. However, such benefit of probation is unavailable to the young accused persons involved in serious crimes like the offence U/s 20 of the N.D.P.S.Act. The provision of Section 360 of the Cr.P.C. also is not attracted in such a case. Obviously, the request of the appellant for leniency is justified to some extent.” . Thereafter, this Court proceeded to reduce the substantive sentence from rigorous imprisonment of four years to rigorous imprisonment of three years and maintained remaining order of sentence. ( 6 ) 8. In this case the appellant is of 22 years of age. It appears that the present and appellant and co-accused were hired for transport of ganja. It may be noted that these persons could not get bail during the trial. 9. So, for the reasons given by this Court in para 6 of Criminal Appeal No. 234 of 2009, decided on 16.09.2009, in my opinion, the present appellant is entitled to parity. He is entitled to reduction in the substantive sentence from rigorous imprisonment of four years to rigorous imprisonment of three years. However, I am not inclined to reduce sentence awarded in default of fine for the reason that it would be doing injustice to the co-accused Udaysing. 10. In the facts and circumstances of the case, this appeal is partly allowed. The order of substantive sentence awarded to the appellant is reduced from rigorous imprisonment of four years to rigorous imprisonment of three years. The remaining part of the order of sentence is maintained. ( 7 ) 11. The criminal appeal is accordingly allowed and disposed of. Inform the jail authorities accordingly. [P.R. BORKAR,J.] snk/2010/MAR10/crap92.10