CR.A/1322/1999 1/16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1322 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE R.H.SHUKLA ================================================= 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 ? ================================================= YASINKHA PYAREKHA BALOCH - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ================================================= Appearance : MR RAJESH M AGRAWAL for Appellant(s) : 1,MR YOGESH R AGRAWAL for Appellant(s) : 1, MR. R.C.KODEKAR, APP for Respondent (s) : 1, ================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE R.H.SHUKLA Date : 10/13.03.2008 CR.A/1322/1999 2/16 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) 1.Challenge in this Criminal Appeal filed under Section 374 of the Code of Criminal Procedure, 1973 (“the Code” for short) is to the correctness of the judgment and order dated 2.12.1999 rendered in Special NDPS Case No. 3 of 1999 by the Special Judge and Additional Sessions Judge, Mehsana, Camp at Patan, by which the appellant (“the accused” for short) has been convicted for the offence punishable under Section 21 read with Section 8(c) of The Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act” for short), and is sentenced to suffer RI for 15 years and fine of Rs.1,50,000/- i.d. RI for further period of 3 years. 2.Briefly stated the prosecution case as disclosed from the complaint, and unfolded during trial, is as under: 2.1 PW-1 Baldevsinh Kalyansinh Kumpawat was present in his office on 8.8.1998, at that time S.K.Gadhvi, Deputy Superintendent of Police called him in his office. At that time, V.L.Rajput, PI, J.G.Parmar, PI, N.N.Gohil, Police Sub- CR.A/1322/1999 3/16 JUDGMENT Inspector and other staff members also came there. As per the case of the prosecution, S.K.Gadhvi, Deputy Superintendent of Police, State Narcotic Cell, has informed them that he has received a secret information to the effect that one Yasinkhan Pyarekhan of Vanagwada of Patan is doing business of brown-sugar and on that day, he has also received the stock of brown-sugar and therefore raid was to be carried out. Thereafter, S.K.Gadhvi, Deputy Superintendent of Police has also called two panch witnesses. On arrival of the panch witnesses they were informed about the secret information received by him. Other police officers were also summoned. All were informed that Yasinkhan Pyarekhan, who was having his shop of tyres and tubes at Junaganj Bazaar, Patan, was illegally dealing in brown-sugar and therefore raid was to be carried out. Preliminary panchnama was drawn there. 2.2 Thereafter, S.K.Gadhvi, Deputy Superintendent of Police, along with members of the raiding party and other police personnel, went to Junaganj Bazaar Police Chowki in a Government vehicle and CR.A/1322/1999 4/16 JUDGMENT made an inquiry regarding shop of the accused and also regarding his name and address. It is the further case of the prosecution that the member of the raiding party informed Yasinkhan Pyarekhan that he was dealing in brown-sugar and as there was prior information, they had come to made search of the shop. Thereafter Mr.Gadhvi, Deputy Superintendent of Police, informed him as to whether he wanted to be searched by any gazetted officer or by a Magistrate and also informed as to whether he wanted to be searched in presence of the member of the raiding parties, police personnel or panch witnesses. He refused, and therefore, search was carried out by the member of the raiding party. 2.3 It is the further case of the prosecution that there was a wooden desk and one old bag usually carried under the arm pit, having design of checks and also having chain, was found. Thereafter chain was opened and three stitched cloth bags were found. From one stitched cloth bag about 950 grams of brown-sugar was found and two samples each of 10 grams were taken from that bag, which were marked as A1 and A2 and the main substance in the CR.A/1322/1999 5/16 JUDGMENT stitched cloth bag was marked as 'A'. 2.4 It is also the prosecution case that from second stitched cloth bag, brown-sugar weighing about 900 grams was recovered. Therefore, two samples each of 10 grams were taken and were marked as B1 and B2 and the main substance in the stitched cloth bag was marked as 'B'. 2.5 As per further case of the prosecution, from the third stitched cloth bag, brown-sugar weighing about 750 grams was recovered and two samples each of 10 grams were taken and were marked as C1 and C2 and the main substance of the bag was marked 'C'. 2.6 After performing necessary formalities, the contraband article brown- sugar was seized and other articles were also seized and accordingly second part of the panchnama was drawn and completed. Samples collected were sent to FSL for chemical analysis. Therefore, as per the prosecution case, the accused was found dealing in brown-sugar illegally weighing about 2.6 kg. and thereby he has committed breach of the provisions of Section 8(c) of the NDPS Act and committed offence CR.A/1322/1999 6/16 JUDGMENT punishable under Section 21 of the NDPS Act. 2.7 Complaint in this regard was filed by PW-1 Baldevsinh Kalyansinh Kumpavat before the Deputy Superintendent of Police, State Narcotic Cell, CID Crime, Gandhinagar, which is on record at exh.11. On the basis of the said complaint, an offence was registered by Gandhingar Zone Police Station bearing CR No. II 12/1998. On receipt of the samples from FSL, certifying that the contraband article of 950 grams brown-sugar which was recovered from the accused as per the mark 'A' as well as contraband article brown-sugar as per mark 'B' was not found as brown-sugar, whereas contraband article weighing 750 grams recovered from the accused mark 'C' was found to be brown-sugar, and after completion of the investigation charge sheet came to be submitted in the Court of learned Principal Judge, Sessions Court, Bhadra, at Ahmedabad on 31.10.1998 in connection with the contraband article brown-sugar weighing 750 grams which was recovered from the accused, which was registered and numbered as Sessions Case No. 309 of 1998. CR.A/1322/1999 7/16 JUDGMENT 2.8 When the case was placed before the learned City Sessions Judge, Court No.10, it was disclosed that the offence took place within the territorial jurisdiction of Patan City, therefore, vide order dated 21.1.1999 the learned City Sessions Judge directed to submit the charge sheet in the Court of learned Sessions Judge, Mehsana. Therefore, on 30.1.1999 charge sheet was submitted in the Court of learned Special Judge, Mehsana and the learned Sessions Judge sent the case for trial to the learned Extra Assistant Judge and Additional Sessions Judge, Mehsana, Camp at Patan, where it is registered and numbered as Special NDPS Case No. 3 of 1999. 2.9 To prove the culpability of the accused, the prosecution has examined and relied upon the oral testimonies of 10 witnesses, and relied upon their oral testimony. 2.10 To prove the case against the accused, the prosecution has produced number of documents and relied upon the contents of the same, including the extract of the secret information as well as resolution made under Section 42 of the CR.A/1322/1999 8/16 JUDGMENT NDPS Act and FSL report. 2.11 After recording of the evidence of the prosecution witnesses was over, the trial court explained to the accused the circumstances appearing against him in the evidence of the prosecution witnesses and recorded his further statement as required under Section 313 of the Code. In his further statement he stated that false case has been filed against him. He denied the prosecution case in its entirety and stated that on 5.8.1998 when he was coming out from the Mosque near Rupali Cinema, Ahmedabad, he was arrested by ATS officers. His name was asked by the ATS officers and that giving correct name, ATS officer ordered him to sit in the Car. During inquiry from them, he was informed that he was to be interrogated in connection with the transportation of illegal arms and thereafter they had taken him to ATS office, near Shahibaug, Dafnala and put him in the lock up. Thereafter they have taken him to Patan Disha, Palanpur. They allowed him to meet other persons at Patan and asked him as to whether he knows them or not, which he has CR.A/1322/1999 9/16 JUDGMENT totally denied. They therefore handed over his custody to Narcotic Cell and Crime Branch with all the three packets and asked them to register a false case against him. He has been kept in Ahmedabad. In this way a false case has been registered against him by all the three branches. He stated that he is totally innocent. He has studied up to FYBA. However, he did not lead any evidence nor did he examine any witness in support of his defence. 3.On appraisal of the evidence on record, the trial Court held that the prosecution has proved the complicity of the accused for commission of the offence punishable under Section 21 read with Section 8(c) of the NDPS Act. It is also held that when he was intercepted and apprehended by the police officers, though he was found with three parcels of the contraband article each containing 950 grams of brown-sugar, 900 grams of brown-sugar and 750 grams of brown-sugar, as per the report of the FSL the third parcel containing 750 grams of brown-sugar was found brown-sugar whereas first two parcels were not found with brown-sugar. On the basis of the aforesaid finding, the trial Court CR.A/1322/1999 10/16 JUDGMENT convicted the accused for the offence punishable under Section 21 read with Section 8(c) of the NDPS Act and sentenced to suffer RI for 15 years and fine of Rs.1,50,000/- i.d. RI for further period of 3 years. 4.It is this order, which is now the subject matter of challenge in this Criminal Appeal, filed by the accused. 5.Mr. Rajesh Agarwal, learned advocate of the accused, has submitted that he does not challenge the order of conviction on merits. However, he submitted that looking to the quantity of the contraband article brown-sugar weighing 750 grams, recovered from the accused, sentence of 15 years imposed on him is disproportionate and it is not commensurate with the quantity of contraband article recovered from him. Besides this, he has also submitted that there are mitigating circumstances in favour of the accused and also this is the first conviction recorded against the the accused under the NDPS Act. He, therefore, urges that the order of sentence may be suitably modified by reducing the same to the minimum sentence of 10 years prescribed under the NDPS Act. He, therefore, urges to pass appropriate CR.A/1322/1999 11/16 JUDGMENT orders in this regard. 6.In support of the aforesaid plea, Mr. Rajesh Agarwal, learned advocate of the accused has tendered affidavit sworn by Imrankha Pyarekha Baloch, brother of the accused, wherein it has been inter alia stated that his brother has no criminal antecedents or he is not a previous convict. He is the only earning member in his family. He has old mother aged about 70 years. She remains sick and bed ridden. Thus, it is almost impossible for him to bear the expenses of her medical treatment and medicines as his income is very meager. It is also stated that his brother has not a single pie to pay the fine and there is extreme poverty. 7.Referring to the aforesaid sworn versions of the brother of the accused, Mr. Rajesh Agarwal, learned advocate of the accused has submitted that sympathy may be shown to the accused and the minimum sentence of 10 years and fine of Rs. 1 lac and in default of payment of fine RI of 6 months may be imposed on the accused. 8.Mr. R.C.Kodekar, learned APP for Respondent – State of Gujarat has CR.A/1322/1999 12/16 JUDGMENT submitted that no leniency may be shown to the accused since offenders of drug trafficking are menace to the society and they spoil the career of the youth of the society and because of their selling narcotic substance to youth, health of the youth is getting deteriorated and they are rendered of no assistance to the society in future. Therefore no leniency should be shown to the accused so far as awarding the minimum sentence is concerned. 9.We have given our anxious considered thought to the rival submissions made by the learned advocates appearing for the parties with regard to awarding of minimum sentence to the accused. 10.In the case of Balwinder Singh v. Asstt. Commissioner, Customs and Central Excise, (2005) 4 SCC 146, the Supreme Court has narrated the relevant factors to be considered for reduction of sentence for the offence under NDPS Act. In the said case, the accused by convicted under the NDPS Act for the first time and, therefore, the sentence was reduced from RI for 14 years to RI for 10 years. 11.In the case of Shantilal v. State of CR.A/1322/1999 13/16 JUDGMENT M.P., (2008) 1 SCC (Cri), Supreme Court, in para 31 of the reported decision has held as under: “31. The next submission of the learned counsel for the appellant, however, has substance. The term of imprisonment in default of payment of fine is not a sentence. It is a penalty which a person incurs on account of non-payment of fine. The sentence is something which an offender must undergo unless it is set aside or remitted in part or in whole either in appeal or in revision or in other appropriate judicial proceedings or “otherwise”. A term of imprisonment ordered in default of payment of fine stands on a different footing. A person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. He, therefore, can always avoid to undergo imprisonment in default of payment of fine by paying such amount. It, is, therefore, not only the power, but the duty of the court to keep in view the nature of offence, circumstances under which it was committed, the position of the offender and other relevant considerations before CR.A/1322/1999 14/16 JUDGMENT ordering the offender to suffer imprisonment in default of payment of fine.” 12.The ratio laid down by the Supreme Court in above referred to two judgments is squarely applicable to the facts of the instant case. In the instant case, as per the sworn version of the brother of the accused, the accused was never convicted under the NDPS Act in the past and this is his first conviction. It is true that for commission of offence under Section 20(b) of the NDPS Act, minimum sentence is 10 years which may extend to 20 years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to 2 lakh rupees. However, normally, in such type of cases, according to Supreme Court, minimum sentence of RI for 10 years and fine of Rs. 1 lac and i.d. RI of 6 months, would meet the ends of justice. 13.In aforesaid view of the matter, we are of the opinion that if the accused is sentenced to suffer RI of 10 years and fine of Rs.1 lac and i.d. RI of 1 year for the offence punishable under Section 21 read with Section 8(c) of the NDPS Act, CR.A/1322/1999 15/16 JUDGMENT the same would serve the ends of justice. 14.Seen in the above context, the sentence imposed upon the accused deserves to be modified by allowing this appeal qua sentence only by reducing it to minimum sentence of 10 years. 15.For the foregoing reasons, Appeal succeeds in part and accordingly it is partly allowed qua sentence only. The impugned judgment and order of conviction passed against the accused is confirmed and maintained. However, while upholding the conviction of the accused under Section 21 read with Section 8(c) of the NDPS Act, the sentence imposed upon the accused to undergo RI for 15 years and fine of Rs.1,50,000/- and i.d. RI for 3 years, is modified and instead, the accused-Yasinkhan Pyarekhan is sentenced to undergo RI of 10 years and fine of Rs.1 lakh and i.d. RI for 1 year. 16.Mudamal to be disposed of in terms of the directions contained in the impugned judgment and order. 17.Appeal is disposed of accordingly. CR.A/1322/1999 16/16 JUDGMENT (A.M. Kapadia, J.) (R.H. Shukla, J.) Jayanti*