CR.A/299/2004 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 299 of 2004 With CRIMINAL APPEAL No. 819 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE M.R. 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 ? ========================================= GOVINDBHAI SHREEKRUSHNA GUPTA Versus STATE OF GUJARAT ========================================= Appearance : MS SADHANA SAGAR for Appellant (Appeal No. 299/04) MS NITA C BANKER for Appellant (Appeal No.819/04) MR M.R. MENGDEY APP for Respondent ========================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH Date : 15/04/2008 CR.A/299/2004 2/14 JUDGMENT COMMON ORAL JUDGMENT : (Per : HONOURABLE MR.JUSTICE J.R.VORA) 1 Both the Appellants of these two Appeals were accused of NDPS Case (New) No. 6 of 2002 and NDPS Case (Old) No. 17 of 2000. The said NDPS cases came to be disposed of by Additional Sessions Judge, Fast Track Court at Valsad, vide judgment and order delivered on 13th of February, 2004. Both the Appellants were charged for the offences punishable under Sections 20 (2) and 27(a) of the Narcotics Drugs and Psychotropic Substances Act, 1985, and vide judgment and order both the accused came to be convicted by the Trial Judge for the offences punishable under Section 8 (c) read with Section (b)(ii)(b) of Section-20, and each of the appellants was sentenced to undergo rigorous imprisonment of 10 years and to pay fine of Rs. 1 lac, in default, to undergo rigorous imprisonment of two years. Accused No.1 Govindbhai Shreekrushna Gupta, being aggrieved by the above said judgment and order, preferred Appeal, being Criminal Appeal No. 299 of 2004, under Section 374 of the Code of Criminal Procedure, before this Court, while accused No.2 Abdul Wahood Mohmad Umar, being aggrieved by the same judgment and order, preferred an Appeal being Criminal Appeal No. 819 of 2004. Since both the Criminal Appeals are arising out of the same judgment and order, both the Appeals were heard together and are being disposed of by common judgment. CR.A/299/2004 3/14 JUDGMENT 2. Stating briefly the prosecution case, Mr. P.N.Patel, serving as Dy. S.P., ATS, Ahmedabad, received information on 30th of December, 1999, that both the accused were to travel from Mumbai to Ahmedabad in passenger train along with contraband substance. At Umargam Police Station Dy. S.P. made entries in the station diary in this respect. Panchas were called and thereafter police party and panchas started in government vehicle and stationed themselves on watch at Sodsuba area, near Swagat Video Theater. At about 17.15 hours, they watched two persons coming to that area, fitting the description which was given to police. The accused were accosted by the police and Dy. S.P. Mr. Patel identified himself and inquired their identity. Accused No.1 offered his name to be Govind Shrikrishnadeva Gupta, resident of Mumbai and accused No.2 offered his name to be Abdul Wahood Mohmad Umar, resident of Mumbai. The accused were informed about their right to be searched in presence of any other Gazetted Officer and both the accused refused to be searched in presence of some other Gazetted Officer. Search on accused No.1 was conducted. He was carrying one plastic bag of yellow colour, and from that bag, a black colour substance was found, and on preliminary test, that substance was revealed to be charas. Other articles were also found like railway ticket, etc from accused No.1. From accused No.2, on search, from a green colour plastic bag, similar substance weighing about 700 grams CR.A/299/2004 4/14 JUDGMENT was found. Thereafter, one Prakashbhai Hashmukhbhai Parekh was called by the police to weigh the substance. It was found that from the possession of accused No.1, 435 grams and 300 mgs. charas was found while from accused No.2 749 grams and 300 mgs charas was found. A panchnama was drawn in the presence of panchas. A preliminary kit to test the substance was called for from LCB Department and ASI Rameshbhai Makanbhai after testing the substance, declared the substance to be charas. Samples of the substance was sealed and by seal of Sub-Inspector, Umargam, in the presence of panchas and slip containing signature of panchas was placed in sealed muddamal. Dy. S.P. Mr. Patel offered his complaint and investigation was handed over to PW-10 Kahansinh Vaghsinh Zala. Muddamal in sealed condition was handed over to Crime Writer and Crime Writer had handed over this muddamal to PW-7 Ashokbhai Ramshanker Sharma, Police Constable, who handed over this muddamal to Forensic Science Laboratory at Surat and has produced necessary acknowledgment on record. After investigation, charge sheet came to be filed against both the accused, which was committed to the Special Court and made over to Additional Sessions Judge and Fast Track Court, Valsad. Charge came to be framed against both the accused by the Trial Court for the above said offences on 4th of February, 2003, vide Exhibit-5. Both the accused pleaded not guilty and, therefore, they were put to trial. CR.A/299/2004 5/14 JUDGMENT 3. Prosecution, therefore, examined 11 witnesses to prove its case and produced on record voluminous documentary evidence. PW-1 Kishorbhai Tukaram, examined at Exhibit-13, is panch of panchnama at Exhibit-14, whereby contraband substance was seized from both the accused, but this witness did not support the prosecution case. PW-2 Bablusinh Ramdiya Chorasiya, examined at Exhibit-16, is second panch of panchnama at Exhibit-14 and he has also not supported the prosecution case. PW-3 Jayantilal Mohanlal was Police Constable and had accompanied the police party for raid and he has fully supported the prosecution case as to seizure and possession of contraband substance found from both the accused. PW-4 J.R. Rana was serving in ATS Department, Ahmedabad as PSI, who also accompanied in raid. He deposed about the facts of the raid fully and has been cross-examined by learned Advocate for both the accused. PW-5 Prabhatbhai Narandas Patel was Dy. S.P., AT Cell, and according to him, he received secret information about the accused, recorded the same in the Police Station Diary at Umargam and arranged the raid, wherein the contraband substance was found from the possession of both the accused. He has been cross-examined by the defence in detail. He offered his complaint before ATS Police Station, which he produced on record at Exhibit-19. Entries made in police station diary at 16.05 hours by the complainant CR.A/299/2004 6/14 JUDGMENT is produced on record at Exhibit-20. PW-6 Prakashbhai Hashmukhbhai Parekh, examined at Exhibit-22. He weighed the substance found from both the accused and he has deposed in this respect including the fact that he had given certificate of weight in this respect which he produced on record at Exhibit-23. PW-7 Ashokbhai Ramashankar Sharma, police constable, is examined at Exhibit-25, and he had delivered the muddamal in sealed condition to Forensic Science Laboratory on 1st of January, 2000. PW-8 Rameshbhai Makanbhai, examined at Exhibit-27, deposed that he was called from LCB Office with kits to test substance found from the accused and after testing he came to know that the said substance was charas. He has been cross-examined in detail. PW-9 Harilal Naginbhai Patel, examined at Exhibit-28, is the then PSO of Umargam Police Station, in whose presence, Dy. S.P. Patel made entries in station diary about the secret information. Thereafter, he had delivered muddamal to Crime Writer in sealed condition. PW-10 Kahansinh Vaghsinh Zala, examined at Exhibit-31, was serving as PSI, Umargam Police Station, and he was entrusted with the investigation. He deposed that the muddamal Crime Writer was Hemrajbhai at the relevant time, who had expired. PW-11 Rameshbhai Dhanjibhai Faldhu, examined at Exhibit-34, is second Investigating Officer and had placed on record the reports of Forensic Science Laboratory at Exhibit-36 and Exhibit-37 and accordingly the substance was found to be CR.A/299/2004 7/14 JUDGMENT charas. Acknowledgment is produced on record at Exhibit-35. This witness submitted charge-sheet in the court. 4. This is all the prosecution case and evidence. Thereafter, further statements of each of the accused was recorded by the Trial Judge under Section 313 of the Code of Criminal Procedure wherein the case of each of the accused was of total denial with a submission that a false case was framed upon them. After hearing both the sides, the learned Trial Judge came to the above conclusion to convict each of the accused and to sentence them, as aforesaid and, hence, these appeals. 5. Learned Advocate Ms. Sadhna Sagar in Criminal Appeal No. 299 of 2004 and learned Advocate Ms. Nita C Banker in Criminal Appeal No. 819 of 2004 on behalf of the respective appellant were heard in detail. Learned APP Mr. M.R. Mengdey on behalf of the State – respondent was heard in detail in respect of these two Appeals. 6. Both the learned Counsels for the appellants submitted fairly that none of the Appeals was pressed on merits and they wanted to submit for the quantum of sentences awarded to each of the appellants. However, we have gone through the Record and Proceedings of the Trial Court and evidences recorded during the trial. We have re- CR.A/299/2004 8/14 JUDGMENT appreciated the evidence carefully and reasonable probabilities arising out of the circumstances of the case. Going through the evidence of PW-4 J.R. Rana, PSI; PW-6 Prakashbhai Hashmukhbhai Parekh, independent witness, who weighed the substance; PW-7 Ashokbhai Ramashankar Sharma, who delivered muddamal to Forensic Science Laboratory in sealed condition; PW-3 Jayantilal Mohanlal, who was accompanying the raiding party; PW-8 Rameshbhai Makanbhai, who tested the substance; PW-5 Prabhatbhai Narandas Patel, complainant, it leaves no room of doubt that it is proved beyond doubt that, at the relevant juncture, both the accused were found in possession of charas. As per the prosecution case, the documentary evidence produced on record like panchnama, complaint and the reports of Forensic Science Laboratory, fully corroborates the say of the witnesses. Though the panchas of the panchnama have turned hostile, but from the evidence of complainant Mr. Patel, it becomes clear that panchnama is amply proved and, therefore, so far as the conviction of each of the appellants is concerned, there is no merit in any of the Appeals. 7. So far as the quantum of sentence awarded to each of the appellant is concerned, in Criminal Appeal No. 299 of 2004, learned Advocate Ms. Sadhna Sagar, for the appellant – accused No.1 submitted that the substance which was found from the accused No.1 was less CR.A/299/2004 9/14 JUDGMENT than commercial quantity and more than the small quantity, with the amendment in Narcotic Drugs and Psychotropic Substances Act, 1985 coming into force on 19th of October, 2001, and since said amendment is applicable to the trial, the punishing Section would be Section 17 of the NDPS Act, which prescribes punishment of sentence to the extent of 10 years, leaving discretion with the court to award sentence. It is submitted that accused No.1 is of young age, his father is aged about 80 years and is a kidney patient and he is required to take care of his father, who is in very pathetic condition. Considering this aspect and when discretion is with the Court, it is submitted that, the sentence of 10 years, as awarded by the Trial Court, be reduced to the extent of undergone by the accused No.1 or to reasonable extent. Adopting the argument of learned Advocate Ms. Sadhna Sagar, Ms. Nita C. Banker, learned Advocate for the accused No.2 also stated that the accused No.2 is economically too weak even to assist his family and he has very big family consisting of four daughters and wife. It is submitted that if he is given an opportunity to settle in society, he would be in a position to take care of his big family and may search means to earn legitimately. On account of the accused No.2 in prison, his family is in a very bad condition. Therefore, it is requested that accused No.2 also be sentenced to the extent of the imprisonment which the accused No.2 has already undergone or to reduce the sentence to reasonable extent. CR.A/299/2004 10/14 JUDGMENT 8. It is settled law that punishment of a crime must be in proportion to the gravity of the offence. This is the crime against the society. Law regulates social interests, arbitrates conflicting claims and demands. This could be achieved through instrumentality of criminal law. The contagion of lawlessness would undermine social order and lay it in ruins. Undoubtedly, protection of society and stamping out criminal proclivity must be the object of law, which must be achieved by imposing appropriate sentence. The edifice of social order should meet the challenges confronting the society and, therefore, law should adopt the proper machinery or deterrence based on factual matrix to establish law and order in society. Undue sympathy towards criminal proclivity would be more harm to the justice system to undermine the public confidence in the efficacy of law. The duty therefore is cast upon the court to award proper sentence having regard to the nature of offence, the manner in which it was executed or committed. It must be noted that individual status of criminal in society or the consequence of the crime committed are never relevant consideration in penology, but it is the proportion between the crime and punishment which is the goal to be achieved. CR.A/299/2004 11/14 JUDGMENT 9. Noteworthy it is here that the seriousness of crime is the main factor which must weigh with the court while deciding the proportion of sentence. In the case of STATE OF PUNJAB vs. BALDEV SINGH, as reported in (1999) 6 SCC 172, the Apex Court has observed in para-3 in respect of the gravity of the offence for drug trafficking, as under : “3. Drug abuse is a social malady. While drug addiction eats into to the vitals of the society, drug trafficking not only eats into the vitals of the economy of a country, but illicit money generated by drug trafficking is often used for illicit activities including encouragement of terrorism. There is no doubt that drug trafficking, trading and its use, which is a global phenomena and has acquired the dimensions of an epidemic, affects the economic policies of the State, corrupts the system and is detrimental to the future of a country. It has the effect of producing sick society and harmful culture. Anti-drug justice is a criminal dimension of social justice. The United Nations Convention against Illicit Trafficking in Narcotic Drugs and Psychotropic Substances which was held in Vienna, Austria in 1988 was perhaps one of the first efforts,at an international level, to tackle the menace of drug trafficking throughout the comity of nations. The Government of India has ratified this convention.” 10. In this case, it is proved beyond doubt that accused No.1 was found in possession of 438 grams of charas while accused No.2 was found in possession of 749 gram and 300 m. grams of charas in his CR.A/299/2004 12/14 JUDGMENT possession. The offence committed is grave in nature which would undermine the lawlessness in society if dealt with leniency and specially while considering the sentencing system, the grounds advanced by each of the appellants are hardly relevant to reduce the sentence having regard to the gravity of the offence. 11. In the matter of SHAILESH JASVANTBHAI AND ANOTHER vs. STATE OF GUJARAT AND ORS, as reported in (2006) 2 SCC 359, the Apex Court has observed in paras 9 and 10 as under : “9. Criminal law adheres in general principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is correctional needs of perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of this crime. Inevitably these considerations cause a departure from just deserts as the basis of punishment and create cases of apparent injustice that are serious and widespread. 10. Proportion between the crime and punishment is a goal CR.A/299/2004 13/14 JUDGMENT respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction, drastic sentences are imposed. Anything less than a penalty of greatest severity for many serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.” 12 In view of above, we are unable to accept the submissions of the appellants to reduce the sentence as advanced. However, in the facts and circumstances of the case, we seem it proper only to interfere with the amount of fine imposed upon each of the accused appellants. We do not interfere in the substantive sentence of 10 years awarded to each of the appellants by the Trial Court, however, the amount of fine imposed by the Trial Court of Rs. 1 lac upon each of the accused is reduced to Rs. 50,000/-, and in default, it is directed that the respective appellants shall undergo rigorous imprisonment of six months instead of two years as awarded by the Trial Court. 13. In the above view of the matter, both these Appeals are CR.A/299/2004 14/14 JUDGMENT partly allowed to the above extent that while maintaining the conviction of both the appellants and while maintaining the substantive sentence of imprisonment of 10 years awarded to each of the appellants by the Trial Court, the fine imposed upon each of the appellants is reduced to Rs. 50,000/- from Rs. 1 lakh. Each of the appellants shall undergo six months RI, in default, to pay fine of Rs. 50,000/-. Rest of the order of the Trial Court is not interfered with. (J.R. VORA, J.) (M. R.SHAH, J.) pnnair