CR.A/19/2005 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 19 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= AMIRALI HABIBBHAI SURANI KHOJA - Appellant(s) Versus THE STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MS ROOPAL R PATEL for Appellant(s) : 1, MS HANSA PUNANI, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 24/04/2008 ORAL JUDGMENT Appellant was original accused No.2 who was by the impugned judgment and order dated 20th September 2004 passed by the learned Additional Sessions Judge, Bhavnagar in Special NDPS Case No.2/2004 convicted for offence punishable under sections 20(b)(ii)(B) CR.A/19/2005 2/11 JUDGMENT and 29 of the Narcotic Drugs and Psychotropic Substances Act 1985 (hereafter to be referred to as “the NDPS Act”). He was sentenced to RI for five years and directed to pay fine of Rs.20,000/-. In default, he was directed to undergo simple imprisonment of six months. 2. As per charge Ex.7, it was alleged that the appellant, original accused No.2, along with one Shashikant, accused No.1, Mahendra, accused No.3 and his wife Lataben, accused No.4 were found to be carrying ganja weighing 12.666 kgs. when the police party intercepted them on 19.1.2004 at about 6.10 p.m. at Botad S.T. Bus stand. 3. Apparently, as emerging from the evidence on record, the prosecution case was that the police had received prior information about the appellant travelling to Botad by S.T.bus and that he would be carrying ganja. Name and description of the appellant was also available with the police. The information was noted down, panchnama was drawn and the police party left for the bus stand. As per the information, the appellant was to be accompanied by three other people. Upon interception, the appellant was found along with Shashikant, accused No.1, and one Mahendra and his wife, accused Nos.3 and 4. In possession of Shashikant, there was one canvas bag. Upon inspection, it was found that the same contained CR.A/19/2005 3/11 JUDGMENT ganja of more than 12 kgs. 4. The learned Judge gave benefit of doubt to original accused Nos.3 and 4 since the substance was not found in their possession nor was any direct evidence linking them with the commission of offence available on record. Accused No.1, Shashikant was convicted on the basis of his actual possession of the substance. Appellant herein, accused No.2, was convicted on the basis of the prior information which the police had and his involvement and familiarity with Shashikant was believed. 5. Pravinbhai, PW-1, Ex.18 was the panch witness in whose presence the search and seizure was carried out by the police. He, however, turned hostile. The panchnama was, however, proved through the evidence of the police witness. 6. Mother of accused No.1, Muktaben, PW-4 was examined at Ex.22. She stated that her son Shashikant is residing at Rajkot since his wife passed away. He is not doing any work. He had gone to Akola after which the police had informed her that her son was arrested from Botad bus stand. She, however, denied knowing Amirali, the present appellant. 7. Likewise, wife of the appellant Roshanben, PW-6, Ex.25 also turned hostile though it is the case of the prosecution that before the police she had stated that her husband and Shashikant were known to each CR.A/19/2005 4/11 JUDGMENT other. 8. PW-7, Rameshbhai, Police constable at Botad police Station was examined at Ex.26. He stated that on 19.1.2004 in the afternoon, when he was at the police station, at about 3.15, police constable Rajendrasinh Govindsinh Jhala had come and informed that he has received information that Khoja Amirali Habibbhai Surani of Bharwada with two men and one woman are likely to arrive at Botad bus stand with ganja. Upon such information given by him to the officer in-charge of the police station, he collected other police officials and also called panch witness. Panchnama was drawn at the police station between 15.45 to 16.00 hours and at 16.05 in a private vehicle, they along with panch witness had gone to Botad ST bus stand and started keeping a watch. At 16.30, from a S.T. bus three men and one woman got down. They were stopped by the police. One of them gave his identity as Shashikant (accused No.1). Other one was Amirali Habibbhai (accused No.2), present appellant. The other two were accused Nos.3 and 4. Upon search with their consent, it was found that Shashikant was carrying a bag in which ganja was found. They could not produce any permit for carrying the substance. Upon weighing it was found that there was 12.666 kg. of ganja. Samples were taken and sealed and sent for analysis and formal complaint was lodged. The witness identified all the accused before the Court. CR.A/19/2005 5/11 JUDGMENT 9. PW-8, Vishnuprasad Durlabji was examined at Ex.27. He was the police station officer at Botad on 19th January 2004 when Rajendrasinh had come with the information. He also stated that at about 16.00 hours, after drawing panchnana, police officer and other staff members had set out with the panch witness to keep a watch. He described the drawing of panchnama of seizure of mudammal articles. 10. Police station diary was produced at Ex.28 in which entries were made at Sr.Nos.14 and 15 regarding the information given by Rajendrasinh and about the police already setting out for raid. 11. Ghanshyamsinh, PW-9, Ex.35 was the Head Constable who stated in his deposition that on 19.1.2004, Rajendrasinh had come and given the information that Amirali Habibbhai of Bharwada who has a limp is going to come to Botad by S.T.bus along with two other men and one woman with ganja in a canvas bag. He also described the manner in which after drawing panchnama, the police party had set out to keep a watch and the manner in which they had intercepted the accused and found the canvas bag containing ganja being carried by Shashikant, accused No.1. 12. It is essentially on the above evidence that the prosecution sought to prove the charge. 13. As noted, accused No.1, Shashikant was found CR.A/19/2005 6/11 JUDGMENT in possession of canvas bag containing ganja. Appellant No.2 was travelling with Shashikant and intercepted at Botad bus stand. Accused Nos.3 and 4 were also with them. The learned Sessions Judge, however, gave benefit of doubt to the said accused. 14. Learned advocate Ms.Patel for the appellant submitted that similar benefit should also have been given to the appellant herein. It was contended that the appellant was not found to be in possession of the banned drug. Under the circumstances, in absence of any other evidence showing conscious possession on part of the appellant, his conviction could not have been recorded. Reliance was placed on the decision in the case of Peter Endy Oruasah v. State of Goa, reported in 1995 Cr.L.R. (Mah.), 307 wherein finding that the prosecution has failed to prove exclusive possession of the flat from which the narcotic drugs were found, set aside the conviction of the accused recorded by the Trial Court. 15. Having perused the evidence on record I find that the case of the present appellant cannot be equated with the case of original accused Nos.3 and 4 whom the learned Judge were not shown to be connected with the ganja found in possession of accused No.1, Shashikant. So far as the present appellant, original accused No.2 is concerned, from the outset, information was received by the police that the appellant along with two other men and one woman is going to arrive at Botad bus stand with CR.A/19/2005 7/11 JUDGMENT ganja. The prosecution had full detailed description of the appellant. His name and that he has a limp in one leg was also disclosed by the informant to the police. This was noted down in the station diary and after drawing panchnama, the police party set out to keep a watch at the bus stand. As per the information, the appellant did get down from the bus along with accused No.1 and others. Upon being stopped and searched, accused No.1 was found carrying more than 12 kgs. of ganga. The involvement of the appellant, therefore, stands established. It is not as if he was a mere co- passenger getting down from the same bus and was sought to be connected with the ganja found from accused No.1. In fact, at the outset, the police had information about the full details about the accused and that he is likely to get down at Botad bus stand with ganja. There is nothing on record to discard the contemporaneous record about the receiving of such information which was promptly noted down and acted upon by the police. 16. Under the circumstances, I find that the learned Judge committed no error in convicting the appellant for the aforesaid offence. 17. Learned advocate Ms.Patel, however, submitted that the sentence is harsh and needs to be reduced. She submitted that this was the first offence of the appellant and that he is an extremely poor person and the fine imposed also, he is also CR.A/19/2005 8/11 JUDGMENT unable to pay. 18. In a recent judgment and order dated 10.4.2008 passed in Criminal Appeal No.1672 of 2004 this Court found that the accused was carrying 13.840 kgs. of ganja and this Court had reduced the sentence to 4 years of R.I. and fine of Rs.10,000/-. 19. In an order dated 4.4.2008 passed in Criminal Appeal No.1229 of 2004, following observations were made”- “5. Mr Agrawal has drawn my attention to the decision of the Apex Court in the case of Balwinder Singh vs. Asstt. Commissioner, Customs and Central Excise reported in 2005(2) EFR 420 (= AIR 2005 SC 2917) wherein the accused was found in possession of 175 kgs of Heroin and 39 kgs of Opium. However, considering that the accused was a first time offender, sentence of 14 years of imprisonment imposed by the Courts below was reduced to minimum prescribed under the Act that of 10 years. 5.1 My attention is also drawn to the decision of the Division Bench of this Court dated 09.01.2008 in the case of rendered in Criminal Appeal No. 904 of 2000 wherein the accused were found in possession of Charas weighing nearly 9.5 Kgs. The Division Bench reduced the punishment from that of rigorous imprisonment of 15 years to the minimum of 10 years as prescribed under the Act. 5.2 Similarly in a judgement dated 05.02.2008 rendered by the Division Bench of this Court in Criminal Appeal No. 954 of 2003 with Criminal Appeal No. 2277 of 2004, the accused were found to be in possession of Charas of nearly 6 Kgs. The Division Bench reduced the sentence from CR.A/19/2005 9/11 JUDGMENT rigorous imprisonment of 12 years to the minimum of 10 years prescribed. 5.3 In the case of Ghasita Sahu vs. State of Madhya Pradesh reported in 2008 AIR AIAR (Criminal) 277, the Apex Court considering the poor background of the accused reduced the punishment from 5 years to one already undergone (about 4 years as noticed by the Apex Court) and also reduced the fine from Rs. 20,000/- to Rs. 10,000/- and imposed the default sentence of six months. It was a case wherein the accused was found carrying 17 Kgs of Ganja. It may be noted that commercial quantity for Ganja is prescribed as 20 Kgs. 5.4 In the case of Shanti Lal vs. State of M.P. reported in 2007(2) EFR 702, the Apex Court in para 36 observed that the accused appellant is a very poor person and it was his first offence. It is further observed that because of poverty he could not pay the heavy amount of fine of Rs. 1 lakh and that if he is ordered to remain in jail even after the period of substantive sentence is over only because of his inability to pay fine, serious prejudice will be caused not only to him but also to his family members who are innocent. With these observations the Apex Court though found itself unable to reduce the fine below the minimum of Rs. 1 lakh prescribed by the legislature directed that in default of payment of the said fine, the accused appellant shall serve sentence of six months.” “7. Having thus heard learned advocates appearing for the respective parties and having taken into account relevant aspects of the matter, I find that imposition of the sentence of 7 years and fine of Rs. 75,000/- in the facts of this case are harsh. 8. As already stated the appellant was found in possession of 462.916 gms of charas. Small quantity of charas is defined as 100 gms and commercial quantity is 1 Kg. The appellant was CR.A/19/2005 10/11 JUDGMENT thus carrying charas more than small quantity but substantially lesser than commercial quantity. In that view of the matter, and also considering the fact that the appellant is a first time offender and has no other criminal antecedents, the sentence of 7 years of rigorous imprisonment needs to be reduced. So also imposition of fine of Rs. 75,000/- against the maximum permissible fine of Rs. 1 lakh in facts of the case is high. 9. Taking into account the various decisions noted hereinabove and also taking into account special facts of the case including the facts that the appellant is stated to be a very poor person, this is his first involvement in a criminal case and the quantity of the drug found in his possession I find that the ends of justice will be met if the sentence is reduced to rigorous imprisonment for 4 years and imposition of fine of Rs. 15,000/-. In default of payment of fine he shall serve sentence of six months of simple imprisonment.” In the present case, I find that this is the first involvement of the appellant. There is no previous criminal antecedents. He is otherwise also an extremely poor person and has pursued this appeal through jail appointed advocate. Considering all these aspects of the matter, I find that in the present case, the sentence is required to be reduced to some extent. 20. In the result, the appeal is disposed of in following terms: (i)conviction of the appellant is upheld. (ii)His Sentence however, is reduced to four years of R.I. and fine of Rs.10,000/-. In CR.A/19/2005 11/11 JUDGMENT case of default of payment of fine, he shall undergo simple imprisonment for six months. (iii)With the above directions, the appeal is disposed of. (Akil Kureshi, J.) (vjn)