CR.A/2424/2005 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 2424 of 2005 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 ? ========================================================= LAXMANGIRI BHUPGIRI GOSWAMI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR RAJESH M AGRAWAL for Appellant(s) : 1, MR KP RAVAL, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 27/08/2008 ORAL JUDGMENT 1. The present appellant-accused has been convicted for the offences punishable under Section 20(B)(II)(B) of the NDPS Act and convicted him and sentenced him to suffer rigorous imprisonment for five years and to pay a fine of Rs.20,000/-, in default, to suffer further simple imprisonment of one year, by the learned Addl.Sessions Judge, Court No.17, Ahmedabad City in CR.A/2424/2005 2/4 JUDGMENT Sessions Case No.242 of 2004 vide his judgment and order dated 29.9.2005. The present appeal is filed against the aforesaid judgment and order. 2. The prosecution case, in brief, are summarised as under: 3. The incident in question has taken place on 13.7.2004. The appellant was residing at Hanumanji's Temple which is situated in Meghaninagar, Ahmedabad. He used to render his services as a Pujari in the Temple. On the basis of an information received by R.D.Baranda, Police Inspector, NDPS Cell, a raid was carried out at the residence of the appellant-accused and during the search, 250 gms. Of contraband Charas was found from the custody of the present appellant. The search and seizure was made after following due procedure under the provisions of Section 42 and 50 of the NDPS Act. The investigation was carried out and the complaint was lodged by R.D.Baranda, Police Inspector, Gandhinagar and on the basis of the complaint, the offence was registered. During investigation, the contraband muddamal, which was found to be Charas, recovered from the accused was sent to the FSL for analysis. The charge sheet was filed for the offences punishable under Sections 8(C), 21 and 22 of NDPS Act before the Special Court. The charge was framed against the accused at Exh.3 and the accused denied the charge levelled against him and the trial was commenced. 4. The prosecution has examined this witness in CR.A/2424/2005 3/4 JUDGMENT order to prove its case against the present accused and also produced documentary evidence, such as, resolution passed under the provisions of Section 42 of the NDPS Act, at Exh.8; Seizure Memo at Exh.12, complaint registered at Exh.31; report of the FSL at Exh.39. Further statement of the accused under Section 313 of the Cr.PC was recorded by the learned Special Judge in which the accused has submitted that a false case is filed against him. 5. After hearing of learned APP and the learned advocate of the defence, the learned Addl.Sessions Judge convicted the present appellant-accused as stated in paragraph No.1 of this judgment. 6. I have heard learned advocate Mr.Agrawal for the appellant-accused and learned APP Mr.K.P.Raval for the respondent State. Learned advocate Mr.Agrawal submitted that as the accused is at present 65 years old; he is in jail for more than four years; in past also, he has not involved in any kind of criminal activity; no offence has been registered against him and this is his first offence, he prays for reducing the sentence awarded by the trial Court. He has placed reliance on a decision rendered by this Court (Coram: Akil Kureshi,J.) in Criminal Appeal No.1229 of 2004, decided on 4.4.2008. This Court has also gone through the said judgment and order passed by this Court. Learned APP Mr.Raval submitted that in view of aforesaid judgment passed by this Court, appropriate orders may be passed by this Court as the accused is aged about 65 years and is having no criminal antecedents and his jail record is CR.A/2424/2005 4/4 JUDGMENT also good. He has placed before this Court the report in this behalf. Taking into consideration the above aspects, and in light of the judgment cited above, in the opinion of this Court, so far as the sentence part of the order is concerned, it is required to be reduced and the appeal deserves to be allowed. 7. In the result, this appeal is partly allowed. The judgment and order of conviction dated 29.9.2005 passed by the learned Addl.Sessions Judge, Court No.17, Ahmedabad City in Sessions Case No.242 of 2004 convicting the appellant for the offence under Section 20(B)(II)(B) of NDPS Act is confirmed. However, the order of sentencing him to undergo rigorous imprisonment for five years and to pay fine of Rs.20,000/-, in default to further undergo simple imprisonment for one year is hereby modified to the extent that the period of sentence of five years as awarded by the learned Judge is reduced to four years. So far as fine of Rs.20,000/- as awarded by the learned trial Judge is concerned, the same is not altered, but if the fine of Rs.20,000/- as awarded by the learned Judge is not paid, the appellant shall surrender to custody and suffer simple imprisonment of three months. Rest of the part of the judgment and order passed by the trial Court is unaltered. D.S.is permitted. (M.D.Shah, J.) Sreeram.