CR.A/2252/2006 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 2252 of 2006 With CRIMINAL APPEAL No. 2334 of 2006 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 ? ========================================================= PAVANKUMAR @ PAVAN JINDURAM THAKUR - Appellant(s) Versus THE STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : Cr.Appeal No. 2252 of 2006 MS BHARTI H RANA for Appellant(s) : 1, Mr KP Rawal, Addl.PUBLIC PROSECUTOR for Opponent(s) : 1, Cr.Appeal No.2334 of 2006 Mr R M Agrawal, for appellant Mr K P Rawal, Addl.Public Prosecutor for opponent ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 25/08/2008 ORAL JUDGMENT (COMMON) 1. Both these appeals are arising out of the judgment and order dated 31.7.2006 passed by the CR.A/2252/2006 2/8 JUDGMENT learned Addl. Sessions Judge, Court No.7, Ahmedabad in Sessions Case No.77 of 2004 whereby both the appellants, along with one another accused were convicted by the said court. Hence both the appeals are heard together and disposed of finally by way of this common judgment. 2. Original accused No.3 Pavankumar @ Pavan Jinduram Thakur has filed appeal No.2252 of 2006 and original accused no.2, Sundersingh Bhadarsing Rajput has filed appeal No.2334 of 2006. So far as accused No.1, Harakhlal Gangaram Rajput is concerned, he has not preferred any appeal before this court. All the three accused were held guilty and convicted by the learned Addl.Sessions Judge for offences punishable under sections 20(b)(ii) read with section 8(1) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act”) and sentenced to suffer Rigorous Imprisonment for six years and a fine of Rs.50,000/-, in default, simple imprisonment for one year. All the accused were acquitted of the offence punishable under section 29 of the Act. The learned Sessions Judge has also CR.A/2252/2006 3/8 JUDGMENT passed order that for the period both the accused spent in judicial custody shall be given set off. Against the aforesaid judgment and order, both the appellants i.e. original accused No.2 and 3 have filed these appeals challenging the same. 3. Briefly stated, the case of the prosecution is that a secret information received by the senior police officer of Shaherkotda police station, Mr V.M. Barot, on 5.1.2004 disclosed that three persons who were speaking Hindi were going to deliver bulk quantity of 'charas' illegally by going from Amdupura Chamunda bridge. Description of clothes and containers was sufficiently given to identify them. After intimating the Asstt.Commissioner of Police, on the basis of the said information, a police raid was carried out in presence of panchas and both the appellants, along with one another accused, were caught and from their possession, narcotic substance was recovered and on primary examination, the said substance was found as 'charas'. From the possession of accused no.1, 1 kg. Charas was recovered while from the possession of accused no.2, CR.A/2252/2006 4/8 JUDGMENT 975 grams charas and from the possession of accused no.3, 835 grams of charas were recovered. After following due procedure of search and seizure and after following the procedure laid down in section 42 and 50 of the NDPS Act, investigation was carried out and muddamal was seized and sealed in the presence of panchas. Thereafter complaint was lodged which was numbered as Prohibition Registration No.5008 of 2004. During the investigation, the muddamal was sent to FSL for analysis and after getting the report from the FSL, at the the end of the investigation, charge sheet was filed against all the three accused for offence punishable under section 20(b)(ii), 21 and 29 of the NDPS Act. As the accused denied the charges and claimed to be tried, the trial was commenced. To prove its case, the prosecution has examined six witnesses and also produced 24 documentary evidences to prove its case against the accused persons. 4. This court has gone through the entire evidence on record and also the judgment and order passed by the learned Addl.Sessions Judge. As far as the present appellant, original accused No.2 is CR.A/2252/2006 5/8 JUDGMENT concerned, 975 grams charas was found from his possession and 835 grams charas was found from accused No.3. The said quantity is more than the small quantity and less than the commercial quantity. 5. Heard Mr R M Agrawal, learned advocate for accused no.2 and Ms. Bharti H Rane, appointed amicus curiae on behalf of accused no.3 and Mr K P Rawal, learned APP for the State. 6. Mr Agrawal, Learned advocate for the appellant-accused no.2 submitted that at the outset, he does not press the appeal on merits so far as conviction is concerned. He submitted that the appellant no.2 is a very poor person from Himachal Pradesh and he is in jail for more than 4 years. He, therefore, prays the court to reduce the sentence considering the facts and circumstances of the case. 7. In support of his case, Mr Agrawal has placed reliance on a decision of this Court (Coram: Akil Kureshi, J.) in Criminal Appeal No.1229 of 2004 CR.A/2252/2006 6/8 JUDGMENT dated 4.4.2008. He also placed reliance on the following decisions of the Hon'ble the Apex Court: (i) Balwinder Singh v. Asstt.Commissioner, Customs and Central Excise (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. In the case of Ghasita Sahu v. State of Madhya Pradesh (2008 AIR AIAR (Criminal) 277), the Apex Court reduced the sentence and also reduced the fine and imposed the default sentence of six months. In a judgment dated 5.2.2008 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. Wherein the Division Bench reduced the sentence from rigorous imprisonment to the minimum sentence. 8. Ms. Bharti Rane, learned advocate appointed as amicus curiae also made submissions on the same CR.A/2252/2006 7/8 JUDGMENT line as Mr Agrawal. 9. On the other hand, learned APP supported the judgment under challenge. He submitted that the appellants were found in possession of a sizeable quantity of charas. The trial court has imposed sentence and fine which is within the permissible limits prescribed under the NDPS Act. This court, therefore, should not interfere in exercise of discretionary powers by the learned Judge. 10. Taking into consideration the various decisions cited hereinabove and on the peculiar facts of the case including the fact that the appellants are stated to be very poor persons and also the fact that this is their first involvement in a criminal case, in the opinion of this court, ends of justice would be met, if the sentence is reduced to 4½ years and imposition of fine of Rs. 50,000/- each. In default of payment of fine, both the appellants shall serve sentence of six months of simple imprisonment. CR.A/2252/2006 8/8 JUDGMENT 11. In the result, both the appeals are partly allowed. The judgment and order of conviction and sentence dated 31.7.2006 passed against the appellant in both the appeals stands modified to the extent that the sentence imposed upon the appellant in both these appeals to suffer rigorous imprisonment for six years is reduced to rigorous imprisonment for four and half years. The order of payment of fine of Rs.50,000/- by the appellant in both these appeals is upheld. So far as the default clause regarding payment of fine is concerned, the appellant in both these appeals are ordered to undergo further simple imprisonment for three months instead of simple imprisonment for one year in case of default. The rest of the judgment and order of conviction and sentence remains unaltered. [M.D. SHAH, J.] msp