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CR.A/66/2009 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 66 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
=========================================
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 ?
=========================================
KORI
DHIRUBHAI POPATBHAI SOLANKI - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================
Appearance :
MS
SADHANA SAGAR for
Appellant(s) : 1,
MS CM SHAH, ADDL.PUBLIC PROSECUTOR for
Opponent(s) : 1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 27/09/2011
CAV
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE J.C.UPADHYAYA)
The
challenge in this appeal is to the judgment and order dated
15.12.2007 rendered by learned Addl.Sessions Judge, Fast Track Court
No.4, Bhavnagar camp at Botad in Special (NDPS) Case No.2 of 2006
whereby the appellant herein, who was original accused in the
aforementioned special case came to be convicted for the offence
punishable under Sections 20(b)(i), 22 r/w.Section 8 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’, for short)
and was sentenced to undergo rigorous imprisonment for 10 years and
to pay fine of Rs.25000/-, and in default of payment of fine, simple
imprisonment for one year.
The
prosecution case in nutshell is that Mr.G.B.Bambhaniya, PSI, Special
Operation Group, Bhavnagar on 19.10.2005, received a secret
information that the appellant – accused herein, who has a
residential house at Village Chiroda, Taluka Gadhda, District
Bhavnagar, used to cultivate ‘Ganja’ plants in his residential
premises. The secret information which was received was reduced into
writing and Mr.Bambhaniya informed his higher officer regarding the
information. Mr.Bambhaniya thereafter called two panchas and
informed both the panchas and the police personnel, who were present
in his office, about the secret information and about the proposed
raid. After completing first part of the raid panchnama,
Mr.Bambhaniya along with two panchas and police personnel, went to
the place of information and when they reached near the house of the
accused at Village Chiroda, the accused was found present in the
house. The accused was informed about the secret information
regarding the ‘Ganja’ and was further informed that search was
required to be conducted in his house and in that process, if he
desired to keep either a Magistrate or a Gazetted Officer present,
then he has a right to claim it, but, the accused did not opt for
the same and permitted the PSI, Mr.Bambhaniya and the panchas and
the members of the raiding party to conduct the search. At the time
of conducting search, it was found that the house consisted of two
rooms. In one room, nothing objectionable came to be found, but when
they entered into the second room, which was admeasuring 11 ft. x 12
ft., having no roof and there was no floor tiles in the room, and
they found a standing ‘Ganja’ plant approximately 10 ft. in height.
FSL Officer was called at the place, and upon spot analysis, the
plant was reported to be of ‘Ganja’. The plant was thereafter
uprooted and the same was weighing about 1 kg and 800 gms. Necessary
samples were prepared and the same were packed and sealed, as
required. Certain documents showing the ownership and possession of
the premises of the accused came to be collected. Detailed seizure
panchnama came to be prepared. In connection with this offence,
Mr.G.B.Bambhaniya, PSI, lodged FIR, which came to be registered.
During the course of investigation, statements of material witnesses
came to be recorded. Muddamal sample came to be forwarded to FSL and
the report of the FSL was collected. After collecting required
material for the purpose of lodgment of chargesheet, chargesheet
came to be filed in the Court of learned Judicial Magistrate (F.C.),
Gadhda. Since the offence is exclusively triable by the Special
Court, the learned JMFC transmitted the case to the Court of learned
Addl.Sessions Judge, Bhavnagar camp at Botad, which was registered
as Special (NDPS) Case No.2 of 2006.
The
trial Court framed charge against the accused at Exh.5 to which he
did not plead guilty and claimed to be tried. Thereupon, the
prosecution adduced its oral evidence and examined 9 witnesses,
detailed in paragraph 4 in the impugned judgment. The prosecution
relied upon 22 documents, detailed in paragraph 5 in the impugned
judgment. After the prosecution concluded its oral evidence, the
trial Court recorded further statement of the accused u/s.313 of the
Code of Criminal Procedure, and the accused in his further statement
denied generally all the incriminating circumstances emerged from
the evidence adduced by the prosecution and put to him by the trial
Court and stated that he was falsely implicated in this case. The
trial Court after examining and appreciating the evidence adduced by
the prosecution and considering the submissions advanced on behalf
of both the sides, came to the conclusion that the prosecution
successfully proved its case beyond any reasonable doubt and,
ultimately, recorded the conviction of the accused for the offences
punishable 20(b)(i), 22 r/w. Section 8 of the NDPS Act and awarded
the sentenced as herein above referred to in this appeal. Hence, the
original accused has preferred this appeal.
Ms.Sadhna
Sagar, learned advocate, for the appellant – accused at the
outset submitted that considering the oral and documentary evidence
adduced by the prosecution, the conviction of the appellant –
accused recorded by the trial Court is not assailed. However, she
submitted that so far as the sentence awarded by the trial Court is
concerned, it is unduly harsh and so far as the sentence of
imprisonment is concerned, the trial Court has awarded the maximum
sentence of imprisonment without recording any reason for the same.
Ms.Sagar submitted that the prosecution case, as established against
the appellant – accused, is regarding cultivation of ‘Ganja’
plant in his property and the same is punishable u/s.20(b)(i) of the
NDPS Act. She submitted that as per the punishment prescribed for
the said offence, the punishment is R.I for a term, which may extend
to 10 years and shall also be liable to fine, which may extend to
Rs.1 Lac. Ms.Sagar, therefore, submitted that no minimum sentence is
prescribed, but, the maximum sentence is R.I for 10 years and fine
of Rs.1 Lac. Ms.Sagar further submitted that the plant as a whole,
weighed 1 kg and 800 gms, and as per the prosecution case, had this
been a case of possession of ‘Ganja’, then as per Sr.No.55 in the
Schedule attached to the NDPS Act, the possession of ‘Ganja’ upto 1
kg is considered to be small quantity and the possession of ‘Ganja’
of 20 kg and more is considered to be commercial quantity, but, in
the instant case, since the same is though lesser than commercial
quantity, but greater than small quanity, R.I for 10 years is not a
minimum sentence. Ms.Sagar further submitted that the appellant –
accused hails from socially and economically poor strata of society
and there is nothing that the accused was ever involved in such
offence in past. Ms.Sagar further submitted that the sentence of S.I
for one year on account of non-payment of fine of Rs.25000/- is also
harsh, considering the poor financial condition of the accused. She,
therefore, submitted that the sentence of imprisonment together with
fine may be reduced.
Ms.C.M.Shah,
learned APP, for the respondent – State vehemently opposed
this appeal and submitted that the trial Court examining the overall
evidence on record and considering the seriousness of the crime
committed by the accused, rightly fixed the quantum of sentence and,
therefore, there is no reason to interfere with the order of
sentence passed by the trial Court.
As
submitted by Ms.Sagar, learned advocate for the appellant –
accused, the conviction recorded by the trial Court is not assailed
in this appeal, but, the submission is confined only regarding the
reduction of sentence. Before the trial Court, the prosecution
examined 9 witnesses and relied upon 22 documents, and as observed
by the trial Court, after appreciating the oral and documentary
evidence on record, the complicity of the accused in the offence is
held to be duly established. Thus, the appellant – accused is
proved to have committed the offence punishable u/ss.20(b)(i), 22
r/w.Section 8 of the NDPS Act. There is no dispute that the instant
case is regarding the cultivation of ‘Ganja’ plant. The plant was
found in standing condition in the premises of the accused. In the
seizure panchnama, Exh.16, detailed description is given regarding
the ‘Ganja’ plant. FSL report, Exh.43 revealed that the plant was of
‘Ganja’.
The
trial Court awarded the sentence of imprisonment of R.I for 10 years
to the appellant – accused. In this connection, considering
the sentence prescribed u/s.20(b)(i) of the NDPS Act, the offence is
made punishable with R.I for a term which may extend to 10 years.
Thus, the maximum sentence of imprisonment is prescribed to be of 10
years. No minimum sentence is prescribed. In the instant case,
‘Ganja’ plant, which came to be seized, was weighing 1 kg and 800
gms. It is admitted fact that during the course of search and
seizure, only one standing ‘Ganja’ plant came to be found from the
premises of the accused. Ms.Sagar, learned advocate for the
appellant – accused relying upon the jail remarks sheet
submitted that the appellant – accused has undergone by now
about 5 years and 11 months in jail and his conduct in the jail is
reported to be good. She further submitted that there is nothing on
record to come to the conclusion that the appellant – accused
is habitual offender indulging in such activities. She, therefore,
submitted that considering the facts and circumstances of the case,
the period undergone by the accused in jail may be considered to be
the sufficient sentence of imprisonment. Considering the facts and
circumstances of the case, and in light of the above discussions, we
are of the considered opinion that the period undergone by now in
jail by the accused should be considered as his adequate sentence of
imprisonment for this offence. Moreover, the maximum amount of fine
prescribed is Rs.1 Lac. No minimum amount of fine is prescribed. The
trial Court ordered the accused to pay fine of Rs.25000/- and in
default of payment of fine, the accused is ordered to undergo S.I
for one year. Considering the facts and circumstances of the case,
the amount of fine fixed by the trial Court is not required to be
disturbed, but the further sentence of S.I for one year, in default
of payment of fine, is required to be modified to S.I for six
months.
For
the foregoing reasons, the appeal succeeds in part and accordingly,
it is partly allowed. The conviction of the appellant –
accused recorded by learned Addl.Sessions Judge, Fast Track Court
No.4, Bhavnagar camp at Botad in Special (NDPS) Case No.2 of 2006 by
impugned judgment and order dated 15.2.2007 for the offence
punishable u/ss.20(b)(i), 22 r/w.Section 8 of the Narcotic Drugs and
Psychotropic Substances Act, 1985, is confirmed and upheld. However,
the sentence of R.I for 10 years and fine of Rs.25000/- and in
default of payment of fine, S.I for one year awarded to the
appellant – accused by the trial Court is modified and reduced
to the period already undergone by the appellant – accused by
now in jail and to pay fine of Rs.25000/-, and in default of payment
of fine, S.I for six months.
(D.H.WAGHELA,
J.)
(J.C.UPADHYAYA,
J.)
(binoy)
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