CR.A/1093/1993 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1093 of 1993 With CRIMINAL APPEAL No. 346 of 1994 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 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 ? ========================================================= SEPIY KASAM ISAQ - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance in both matters : Ms. Chetna M.Shah for Mr. VIJAY H PATEL for Appellant. Mr.K.P.Raval for the opponent. ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 31/07/2008 ORAL JUDGMENT 1. Both these appeals arise out of the common judgment and order of conviction and sentence dated 1-10-1993 passed by the learned Addl.Sessions Judge, CR.A/1093/1993 2/5 JUDGMENT Bhavnagar, in Sessions Case no.67/1190 whereby the present appellants-original accused came to be convicted for the offence punishable under Section 20(B)(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and awarded setence of R.I. for four years and fine of Rs.20,000/-, in default, further R.I. For one and a half year. 2. Brief facts of the prosecution case as emerging from the record of the trial Court are as under: 2.1 That on 16-2-1990 at 17.00 hrs while PSI LCB was on patrolling duty he received secret information that the present appellant-original accused no.1 was to receive Ganja from the appellant-original accused no.2 at Kumbharwada Circle and accordingly two Panchas were called, a watch was kept and the appellant-original accused no.2 was found handing over a bag to the appellant-original accused no.1. Immediately a search was carried out and both the accused were arrested as the bag contained Muddamal Ganja weighing 140 grams which was seized after drawing necessary Panchnama in presence of the Panchas. The Muddamal Ganja was divided and put into two bags containing 70 grams each. Both the police as well as the Panchas had signed on the bags containing Muddammal Ganja. After completing all necessary formalities a complaint came to be lodged in the Court of the learned Additional Sessions Judge, Bhavnagar, who framed charge Exh.6 which was read over and explained to the appellants-accused. The appellants-accused pleaded not guilty to the CR.A/1093/1993 3/5 JUDGMENT charge and claimed to be tried. 3. After appreciating the evidence of the two witneses, namely, Panchas, and the documents placed before him, the learned Additional Sessions Judge passed the judgment and order of conviction and sentence as stated in para-1 of this judgment. Hence, the preset appeal. 4. Mention requires to be made here that the learned Counsel for the appellants-accused had confined his arguments only on the point of reduction in sentence. 5. Ms. Chetna M.Shah, learned Counsel for the appellants submitted that the appellants-original accused were convicted under the Old Act i.e. Narcotic Drugs and Psychotropic Substances Act, 1985, and subsequently upon amendment the New Act i.e. Narcotric Drugs and Psychotropic Substances Act, 2005 had come into existence. It is the submission of the learned Counsel that as per the New Act of 2005, the maximum punishment for possession of small quantity of contraband ganja as in the present case was for a term which may extend to six months R.I. or with fine which may extend to Rs.10,000/- or with both. She further submitted that the appellants accused are quite old and this was their first offence, and therefore, a lenient view be taken in the matter of sentence. CR.A/1093/1993 4/5 JUDGMENT 6. Learned A.P.P. Mr.Raval has fairly conceded that taking into consideration the coming into force of the New Act of 2005, appropriate sentence may be awarded. 7. This Court has gone through the entire record of the case including the the judgment and order passed by the learned Additional Sessions Judge,Bhavnagar. Looking to the Old Act of 1985 as also the New Act of 2005 the contraband Ganja seized from the possession of the appellants-accused was of a small quantity. Even if the appellants-accused had pleaded guilty and put forward a case that the Ganja in question was for personal consumption, the learned Judge under Section 27 of the Old Act itself could have awarded appropriate sentence against the appellants-accused. Considering the fact that the shall quantity of Ganja has been seized coupled with the fact that the appellants-accused are quite old and this was their first offence, I am of the considered opinion that the appeals deserves to be partly allowed. 8. In the result, the appeal is partly allowed. The judgment and order of conviction and sentence dated 1-10-1993 passed by the Addl.Sessions Judge, Bhavnagar, in Sessions Case no.67/1190 against the appellants in each of these appeals is modified to the extent that their setence shall stand reduced to Rigorous imprisonment for three months and fine of Rs.1000/-, in default of payment of fine, further R.I. for seven days. The appellants-accused if on CR.A/1093/1993 5/5 JUDGMENT bail shall surrender to custody for serving out the remaining sentence. The appellants-accused shall be entitled to the set-off for the period of sentence already undergone. The fine, if paid in excess of Rs.1000/- shall be refunded to the appellants- accused. (M.D.Shah,J.) lee.