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CR.A/400/1999 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 400 of 1999
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
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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 ?
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STATE
OF GUJARAT - Appellant(s)
Versus
HEMCHANDJI
VASRAMJI THAKORE - Opponent(s)
=========================================
Appearance :
PUBLIC
PROSECUTOR for
Appellant(s) : 1,
NOTICE SERVED for Opponent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 14/03/2011
ORAL
JUDGMENT
The
appellant-State of Gujarat has preferred the present appeal under
Section 377 of the Code of Criminal Procedure, 1973 for enhancement
of sentence against the judgment and order of conviction dated 15th
February 1999 passed by the learned Sessions Judge, Banaskantha, in
Sessions Case No.138 of 1994, whereby the learned tr4ial Judge has
convicted the respondent for the offence punishable under Section
8(B) and 20(A) of the N.D.P.S. Act.
The
case of the prosecution is that on or around 22nd
February 1994, on the roof of residence of accused, one bag was
found having contraband article Ganja in the bag. It is also the
case of the prosecution that police has also found plants of
contraband article Ganja, which were recovered by the police in
presence of panchas. It was found that weight of the dry Ganja was
5,200 gms and weight of the plants was 4,200 gms. Therefore, a
complaint to the said effect was was filed.
Thereafter
panchnama of the scene of offence was drawn and statement of
witnesses were recorded. Statement of Talati-cum-Mantri was recorded
with regard to the land and survey number of the house of the
respondent-accused. Thereafter, muddamal was sent for analysis to
Forensic Science Laboratory and after the certificate received from
FSL, as sufficient evidence was found against the
respondent-accused, the respondent-accused was charge-sheeted before
the Court of learned Judicial Magistrate First Class, Deesa.
Thereafter,
as the case was exclusively triable by the Court of Sessions, the
case was transferred to the Sessions Court, Palanpur. Thereafter,
charge was framed below Exhibit 6 against the respondent-accused and
as the respondent-accused denied the case and has not pleaded
guilty, trial was commenced. To prove the case of the prosecution,
prosecution has produced oral as well as documentary evidence in
support of their case. After filing closing pursis by the
prosecution, further statement of the respondent-accused under
Section 313 of the Code of Criminal Procedure, 1973. The
appellant-accused has not produced any oral evidence in support of
his case. Neither the appellant has examined any witnesses nor he
has given any deposition on oath to prove his case.
After
hearing both the sides, the learned Sessions Judge, Banaskantha at
Palanpur, by his judgment and order dated 15th
February 1999 passed in Sessions Case No.138 of 1994, was pleased to
convict the respondent-accused for the offence punishable under
Section 8(B) and 20(A) of the N.D.P.S. Act and ordered to undergo
rigorous imprisonment for a period of one month and also imposed
fine of Rs.200/-, and in default of payment of fine, ordered to
undergo rigorous imprisonment for a further period of seven days.
Being
aggrieved by and dissatisfied with the said judgment and order dated
15th
February 1999 passed by the learned Sessions Judge, Banaskantha at
Palanpur, in Sessions Case No.138 of 1994, the appellant-State of
Gujarat has preferred the above-mentioned Criminal Appeal for
enhancement of sentence before this Hon’ble Court.
I
have heard Mr.R.C. Kodekar, learned Additional Public Prosecutor,
appearing on behalf of the appellant-State. I have also gone through
the papers and the judgment and order passed by the trial Court.
Mr.R.C.
Kodekar, learned Additional Public Prosecutor, has contended that
the judgment and order of conviction passed by the learned trial
Judge is not legal and proper. He has contended that 5,200 gms. of
Ganja was found from the possession of the respondent-accused.
Looking to the quantity of Ganja recovered from the possession of
the respondent, it is not small quantity. He has also contended that
looking to the quantity of contraband article Ganja, the learned
trial Judge has awarded minimum sentence to the respondent-accused.
Mr.Kodekar has also contended that the learned trial Judge has erred
in not awarding minimum sentence prescribed under the N.D.P.S. Act
to the appellant-accused. He has also contended that the contraband
article Ganja is dangerous to the public health. He, therefore,
contended that looking to the overall facts and circumstances of the
case, sentence awarded to the respondent-accused is required to be
enhanced.
I
have
gone through the judgment and order passed by the trial Court. I
have also perused the oral as well as documentary evidence led
before the trial Court and also considered the submissions made by
learned counsel. I have also gone through the provisions of law.
It
appears from the papers that the judgment and order of conviction
was passed on 15th
February 1999 and today, in
the year 2011, present appeal came before this Court for enhancement
of the sentence imposed upon the respondent-accused. From the
perusal of the papers it appears that after appreciating all the
evidence on record and facts of the case as well as looking to the
circumstantial evidence on record, the learned trial Judge has
passed absolutely just and proper order. I have not found anything
prima-facie to say that the learned trial Judge has awarded minimum
sentence. It also appears from the papers that the
respondent-accused has seven children and he is the only bread
earner of the family. He is a very poor person and therefore,
looking to the overall facts and circumstances of the case, the
learned trial Judge has passed just order.
Hence,
in view of above, I am in complete agreement with the findings,
ultimate conclusion and the resultant order of conviction recorded
by the trial Court and find no reason to interfere with the same.
Hence, the present appeal is required to be dismissed and is hereby
dismissed. The judgment and order of conviction and sentence dated
15th
February 1999 passed by the learned Sessions Judge, Banaskantha at
Palanpur, in Sessions Case No.138 of 1994, is hereby confirmed.
Bail bond, if any, shall stand discharged. Record and Proceedings,
if any, be sent back to the trial Court concerned, forthwith.
(Z.
K. Saiyed, J)
Anup
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