CR.A/393/2004 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 393 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 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 ? ========================================================= DHARMABHAI KEKADIYA RATHOD - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : THROUGH JAIL for Appellant(s) : 1,MS RUKHSANA M PATHAN for Appellant(s) : 1, PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 14/06/2006 ORAL JUDGMENT 1.Heard learned Counsel Ms. Rukhsana M. Pathan for the appellant and Shri I.M.Pandya, learned APP, for CR.A/393/2004 2/11 JUDGMENT the respondent. 2. The appellant has preferred the present appeal challenging the judgment and order of the learned Special Judge, Surat, dated 16th January, 2004 imposing punishment of rigorous imprisonment for 5 years and fine of Rs. 25,000/- and in-default thereof, 6 months simple imprisonment for the offences committed by the appellant under Section 20(B)(2)(b) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as “the NDPS Act”) in NDPS Case No. 12 of 2001. It was also observed that the accused No.1 was to get benefit of set-off. 3.This Court (Coram: D.K.Trivedi, J.) admitted the appeal and expedited the writ vide order dated 4th February, 2005. Being aggrieved and dissatisfied with the above judgment and order, the accused preferred present appeal before this Court, which came to be numbered as Criminal Appeal No. 393 of 2004. Ms. Rukhsana Pathan, learned advocate, was appointed as the counsel to appear on behalf of the CR.A/393/2004 3/11 JUDGMENT appellant. Ms. Rukhsana Pathan, learned advocate, at the out set, submitted that the appellant is in custody since 5th November, 2001 and he has been accorded the benefit of set-off also. The sentence imposed is that of rigorous imprisonment for 5 years. She would, therefore, restrict her submission on the point of sentence only. 4.The facts in brief deserves to be set out as under :- The original complainant and P.S.I. along with one Police Inspector, Shri Chaudhary, were returning back from the bandobast on 5th November, 2001 towards Varachha police station. They spotted one man and woman in suspicious condition. On seeing police, they tried to ran away. Both of them were intercepted and questioned, right then, the accused No.1 was carrying blue colour rexine bag and also sling bag of off-white colour. The original accused No.2 was carrying white colour bag. On questioning, it was revealed that it was the bag contained CR.A/393/2004 4/11 JUDGMENT contrabands. The accused No.1 was carrying total Ganja of 7 kgs and 400 gms. Out of the total Ganja seized of 12 kgs and 900 gms, the remaining Ganja was carried by the woman – accused No.2. The concerned Officers from the Narcotics Department were summoned and after drawing necessary panchnama in accordance with law, the packets were sealed and a complaint was lodged by Shri Apabhai Amrabhai Gadhvi, P.S.I. The investigation was carried out by Police Inspector, Shri Chaudhary. The muddamal sample was sent to the F.S.L., Ahmedabad, for further examination. As the same was found to be contraband article – Ganja, the charge-sheet under Section 20 (B) (ii) and 29 came to be filed. The trial Court framed the charges, which is produced at Exh.3, for the offences under Section 20(B)(ii) and 29 of the NDPS Act. The plea of denial came to be recorded at Exhs-4 and 5 and the trial had commenced. The trial Court examined the following witness:- 1. Pankajkumar Jethalal Shah, Scientific Officer, CR.A/393/2004 5/11 JUDGMENT F.S.L., Surat at Exh.7 2. Apabhai Amarabhai Gadhvi, P.S.I., Complainant, at Exh.9 3. Sahebrav Atmaram Jadav, Head-Constable, (P.S.O.) at Exh.11 4. Rajaram Gangaram Suryavanshi, A.S.I., (Crime Writer) at Exh.14 5. Harishbhai Nathalal Thakkar, Weighing Witness at Exh.16 6. Prakashbhai Motiram, Panch Witness, at Exh.17 7. Bhupatsinh Kantilal Pateliya, Police Constable (who has sent the muddamal to the F.S.L.) at exh.19 8. Gulabchand Kesarbhai Chaudhary, P.I, Investigating Officer, at Exh.21 The prosecution has relied upon the following documentary evidences :- 1.Primary Examination Report of Muddamal at Exh.8 2.Complaint of Shri A.A.Gadhvi, P.S.I., at Exh.10 CR.A/393/2004 6/11 JUDGMENT 3.Yadi for the registration of offence at Exh.12 4.True Copy of Muddamal Receipt at Exh.13 5.True Copy of Crime Register Sr. No. 563 at Exh.15 6.Panchnama at Exh.18 7.Acknowledgement of Muddamal Receipt at Exh.20 8.Copy of seizure memo for the muddamal seized from the accused at Exh.22 9.Copy of arrest memo given to the accused at Exh.23 10.Copy of form-F at Exh.24 11.Copy of Form-F at Exh.25 12.Copy of letter for sending the muddamal to the FSL at Exh.26 13.Copy of discharge entry at Exh.27 14.Report of FSL at Exh.28 15.Scientific Analysis Report at Exh.29 16.True Copy of Entry No.25 of Station Diary at Exh.30 5.After completion of the evidences, the statement of the accused was recorded as per the provisions of CR.A/393/2004 7/11 JUDGMENT Section 313 of the Criminal Procedure Code. Both the accused denied case of the prosecution. 6.After discussing the evidences at length and perusing the authorities cited before the Court, the trial Court held that the prosecution has proved its case beyond doubt and convicted the accused and imposed sentence of 5 years rigorous imprisonment and fine of Rs. 25,000/- and in- default thereof, 6 months simple imprisonment upon accused No.1 with benefit of set-off. The accused No.2 was imposed punishment of undergoing rigorous imprisonment of 4 years and fine of Rs. 15,000/- and in-default thereof, 3 years simple imprisonment with a benefit of set-off. It is to be noted that the present appeal is preferred by the accused No.1 only. Ms. Rukhsana Pathan, learned advocate, has submitted that looking to the quantity involved in the offence and the time lapsed from the date of his internment and looking to the evidences on record, the interest of justice would be served, if this Court considers the aspect of modifying the CR.A/393/2004 8/11 JUDGMENT sentence. She has, therefore, restricted her submissions only on the aspect of modification of quantum of sentence. 7.Ms. Rukhsana Pathan, learned advocate, has submitted that the date of offence is 5th November, 2001. The Amended Act came into force w.e.f. 2nd November, 2001 and therefore, the provision of Amended Act would be applicable in the present case. She has submitted that the raw Ganja recovered from the appellant was weighing only 7 kgs and 400 gms. This quantity is little more than the small quantity but of course, it is far less than the commercial quantity. She has submitted that the statute provides linking of sentence with quantity recovered and the Courts, therefore, have to bear in mind the aspect of quantity recovered, while imposing the sentence. She has submitted that looking to the period spent in custody by the accused No.1 – the present appellant and the quantity, the interest of justice would be served, if the sentence is modified to the period already CR.A/393/2004 9/11 JUDGMENT undergone by the present appellant. 8.Shri Pandya, learned APP, for the State also could not dispute the submissions and contentions made by the learned Counsel for the appellant. The fact remains that the quantity of Ganja recovered was more than the small quantity but less than the commercial quantity, which may require consideration. Shri Pandya, learned APP, has submitted that the conviction certainly deserves to be upheld in the light of the evidence on record. 9.This Court has heard the learned Counsel at length and perused the record of the case. Looking to the evidence on record, this Court is not inclined to interfere with the order of conviction. However, the submissions of Ms. Rukhsana Pathan, learned advocate, that the quantum of sentence deserves to be viewed in the light of the quantity recovered, merits consideration. 10.Ms. Rukhsana Pathan, learned advocate, has also CR.A/393/2004 10/11 JUDGMENT relied upon the judgment and order of this Court in Criminal Appeal No. 1562 of 2004 decided on 5th April, 2005 wherein, this Court (Coram: R.P.Dholakia, J.) modified the sentence on the basis of the quantity. 11.The provisions of Section 20(b)(ii)(B) together with column no.55 goes to show that the Court, while awarding the sentence, has to be mindful of the quantity recovered. The discretion left in the Court on the aspect of punishment is to be exercised in the light of the quantity recovered. The judgment cited by Ms. Rukhsana Pathan, learned advocate, in support of her contention, is applicable in the facts of the present case. 12.The quantity of contraband goods recovered from the accused No.1 is 7 kgs and 400 gms, which as stated hereinabove, is certainly more than the small quantity but far less than the commercial quantity. The sentence awarded is, therefore, required to be modified. This Court is, therefore, CR.A/393/2004 11/11 JUDGMENT of the opinion that the sentence awarded to the appellant is required to be modified and is, accordingly, modified. Shri Pandya, learned APP, has submitted that he was unable to obtain Jail Report, however, he submits that as it appears from the arrest memo that the convict – appellant would have undergone imprisonment for about 4 years and 6 months. 13.In view of this, if the sentence is reduced to the period already undergone along with the sentence in-default of payment of fine, that would meet the ends of justice. In the result, the appeal is partly allowed. The conviction is confirmed but the sentence is modified to the sentence already undergone by the appellant. The appellant is ordered to be set at liberty forthwith, if not required in other case. (S.R.BRAHMBHATT, J.) kdc