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CR.A/398/2003 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 398 of 2003
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
HONOURABLE
MR.JUSTICE P.P.BHATT
=====================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment? YES
2
To
be referred to the Reporter or not? NO
3
Whether
their Lordships wish to see the fair copy of the judgment? NO
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? NO
5
Whether
it is to be circulated to the civil judge? NO
=====================================
ABDULGANI
ABDUL AHAD BAT - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=====================================
Appearance :
MR
RAJESH M AGRAWAL for Appellant(s) : 1,
PUBLIC PROSECUTOR for
Opponent(s) : 1,
=====================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
and
HONOURABLE
MR.JUSTICE P. P. BHATT
Date
: 04/04/2011
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI)
1.0 An
application filed by the convict – Abdul Gani Abdul Ahad Bat to
the Honourable the Chief Justice and other Judges of the High Court
of Gujarat, this appeal, which was forwarded through the
Superintendent of Jail, Vadodara Central Jail dated 31st
March 2003 was treated as a Criminal Appeal No. 398 of 2003. Later
on, learned advocate Mr. RM Agrawal filed his appearance for the
appellant.
2.0 Present
appeal arises out of a judgment and order dated 22nd March
2003 in Special NDPS Case No. 4 of 2001, which was decided by the
learned Joint District Judge and Additional Sessions Judge, Fast
Track Court No. 1, Bharuch. In all, there were, in all, five
accused, of which, accused no. 2 to 5 were given benefit of doubt and
acquitted. The accused no. 1 was convicted for offences punishable
under Sections 8(c), 20(b)(2), 22 and 29 of the NDPS Act, under
Section 235 of the Code of Criminal Procedure and he was imposed
punishment of 10 years Rigorous Imprisonment and a Fine of Rs.1 lakh,
in default, 06 months’ Rigorous Imprisonment. The learned Additional
Public Prosecutor made available for perusal the Jail Remarks. The
Jail Remarks show that, initially, the appellant was arrested on 4th
September 2001. He came to be convicted on 22nd March
2003 and as on 1st March 2011, he has completed
imprisonment of 09 years, 05 months and 24 days. It also shows that
the convict has not paid the fine. The learned advocate for the
appellant invited the attention of the Court to the application made
by the convict through jail, which is treated as criminal appeal. It
is mentioned therein that, ‘I, the applicant, is a member of a
very poor family. I am not in a position to engage any private
advocate as it is not financially possible for me. Therefore,
through legal aid, services of an advocate be made available’.
2.1 The
learned advocate for the appellant argued the matter at length,
taking up all contentions. The learned advocate for the appellant
emphatically argued that, taking into consideration the evidence on
record, possibility of tampering with muddamal and the sample, which
was sent to the FSL, cannot be ruled out and therefore, the matter is
required to be considered favourably, the appeal is required to be
allowed and the conviction is required to be quashed and set aside.
2.2 Besides,
the learned advocate for the appellant pressed into service various
other points.
3.0 The
Court, prima facie, is not convinced of the contentions raised by the
learned advocate for the appellant.
3.1 The
learned advocate for the appellant then, in the alternative,
submitted that, as the convict has already completed imprisonment of
almost 09 years and 06 month by now, his case be considered at least
for the purpose of reduction of sentence imposed for non-payment of
fine. The fine imposed is Rs.1 lakh and in default, to undergo 06
months’ Rigorous Imprisonment. The learned advocate for the
appellant submitted that, even in the application it is submitted
that the applicant – appellant belongs to a very poor family
and he has also mentioned the fact that the appellant is not able to
pay the fine, is suggestive of the fact that he has no mentor to
extend help or to see that fine is paid on his behalf, so that he is
able to walk out of the jail on expiry of the substantive sentence.
3.2 At
this stage, it will be appropriate to refer to the submission made by
the accused – appellant at the time when he was heard on imposition
of sentence. The same is recorded in Para 35. The accused had
stated even there that, ‘he is a member of a very poor family and
he is the sole support to his family and therefore, mercy be shown
and minimum possible sentence be awarded’.
4.0 Taking
into consideration the overall facts of the case like, from the
record, the convict appears to be convicted for the first time and
the prosecution has not pointed out involvement of the accused in any
other offence. At the time of hearing the accused for quantum of
sentence by the learned Joint District Judge and Additional Sessions
Judge, Fast Track Court No. 1, Bharuch, the accused has prayed for
the minimum sentence for the reasons set out there; the fact that he
has already undergone more than nine years by now; the fact that he
could not file appeal by availing services of an advocate and
therefore, he made an application to the Honourable the Chief Justice
and other Judges of the High Court of Gujarat, which came be treated
as an appeal; the fact that there is no other offence against the
accused is brought on record; the age of the appellant –
convict, which the learned advocate for the appellant has stated to
be 70 years (at the time of framing the Charge and recording the Plea
of appellant – the accused no. 1 deposed that, his age is 60 years
and his profession is
driving, he is resident of Ankleshwar, besides, in the Jail Remarks
also his age is stated to be 70 years); the decision cited by the
learned advocate for the appellant of the Honourable the Apex Court
in the case of Ramji Missar and another Vs. State of Bihar reported
in 1963 (2) Cri. L. J. 173, the Court deems it proper that the
imprisonment in default of payment of fine is reduced from 06 months’
Rigorous Imprisonment to 03
months’ Rigorous Imprisonment.
4.2 The
direction qua the ‘Muddamal’ issued by the learned Judge is
maintained.
4.3 The
appeal is allowed to the aforesaid extent only.
[
Ravi R. Tripathi, J. ]
[
P. P. Bhatt, J. ]
hiren
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