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CR.A/3026/2008 13/ 13 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 3026 of 2008
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 ?
=========================================================
MEHMUDA
W/O SALIM MUNA SHAIKH - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
RAJESH M AGRAWAL for
Appellant(s) : 1,MR MATAFER R PANDE for Appellant(s) : 1,
MR
KARTIK PANDYA, APP for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 18/07/2011
CAV
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE J.C.UPADHYAYA)
1. The
challenge in this appeal is to the impugned judgment and order dated
26/3/2007 rendered by Ld. Special Judge [NDPS], Surat, in Special
[NDPS] Case No. 9 of 2002, whereby the appellant original accused
came to be convicted for the offence punishable under section 22 read
with section 8[c] of the Narcotic Drugs and Psychotropic Substances
Act, 1985 [hereinafter referred to as ‘the NDPS Act’] and was
sentenced to undergo rigorous imprisonment [RI] for 10 years and fine
of Rs.1,00,000/- and in default of payment of fine, RI for 2 years.
2. The
prosecution case in nut-shell, is that Jasvidarsinh Dharamsinh
Ramgadhiya was serving as Police Inspector in Salabatpura Police
Station, Surat City, received an information at about 14-00 hours on
10/8/2002 that the lady accused had kept Brown Sugar in her home
situated in the area called Indarpura at Surat and was doing business
of selling the same. Upon receipt of such information, the
information was reduced into writing and was forwarded to his higher
officer and thereafter, panchas were called. Preliminary panchnama
was drawn and Police Inspector Mr. Ramgadhiya along with two panchas
and other police personnel including a lady constable left the police
station for the raid. After they reached to the place of information,
the lady accused was found in her home. She was informed about the
information which had been received and she was further informed that
it was necessary to search her house including her person and if she
desires that some Gazetted Officer or Magistrate should be kept
present at the relevant time, then she had the option to request so,
to which she did not opt for the same. When the personal search of
the lady accused through lady panch Kavitaben and lady constable
Ashaben was made, one packet covered under a plastic was found.
Through the checking by mobile FSL, the contents in the packet was
found to be Brown Sugar [Heroin], weighing 89 Gram and 450 Miligram.
Samples were collected out of the contraband article and were sealed
and packed. Detailed panchnama was drawn in the house of the accused.
P I Mr. Ramgadhiya lodged FIR regarding the offence and his FIR was
registered. During the course of police investigation, statements of
material witnesses were recorded and samples were forwarded to the
FSL, FSL report was collected and after conclusion of the
investigation, charge-sheet came to be filed in Special Court [NDPS],
Surat.
3. The
trial Court framed charge against the accused at exh. 4, to which she
did not plead guilty and claimed to be tried. Thereupon, the
prosecution examined 10 witnesses detailed in para. 5 in the impugned
judgment as well as produced 20 documents detailed in para. 6 in the
impugned judgment. After the prosecution concluded its evidence, the
trial Court recorded further statement of the accused under section
313 of the Criminal Procedure Code and the accused in her further
statement denied generally all the incriminating circumstances put to
her by the trial Court emerged from the evidence on record and stated
that she was falsely implicated in this case.
4. After
considering the oral and documentary evidence on record and after
hearing submissions advanced on behalf of both the sides, the trial
Court came to the conclusion that the prosecution successfully proved
its case beyond any reasonable doubt and ultimately, recorded
conviction of the accused and awarded sentence as hereinabove
referred to in this judgment.
5. Mr.
R.M. Agrawal, Ld. Advocate for the appellant accused, at the outset,
submitted that he does not challenge the order of conviction on
merits. However, he submitted that looking to the quantity of the
contraband article Heroin recovered from the accused, which is 89
gram and 450 miligram, the maximum sentence being RI for 10 years and
maximum fine being Rs.1 lac imposed on her is disproportionate to and
is not commensurate with the quantity of contraband article recovered
from her. Mr. Agrawal at the first instance, drew our attention to
serial no. 56 in the table contained under the notification
specifying small quantity and commercial quantity pertaining to
heroin, wherein the small quantity is stated to be upto 5 Gram and
commercial quantity is stated to be 250 Gram and more. Mr. Agrawal,
Ld. Advocate submitted that in the instance case, the quantity seized
is more than small quantity, but much lesser than commercial
quantity, which is intermittent quantity. Mr. Agrawal then drew our
attention to section 22 sub-clause [b] of the NDPS Act, wherein it is
stated that where the contravention involves quantity less than
commercial quantity, but greater than small quantity, the punishment
prescribed is RI for a term which may extend to 10 years and with
fine which may extend to Rs.1 lac. On the above premises, Mr.
Agrawal submitted that in the instant case, the trial Court awarded
the maximum punishment prescribed without assigning any reason.
5.1. Mr.
Agrawal, Ld. Advocate for the appellant accused submitted that the
appellant -accused is undergoing sentence since last 8 years and 11
months. Mr. Agrawal, therefore, urged that in the instant case, the
period undergone by the appellant accused in the jail may be her
sufficient and adequate sentence and considering the poor financial
position of the lady accused, fine may be suitably reduced. In
support of the above submission, Mr. Agrawal relied upon a case of
Prakash Mangilal Dalaji Dalsaniya v. The State of Guajrat
decided by this Court on 30/6/2010 in Criminal Appeal No. 485 of
2007.
6. Mr.
Kartik Pandya, Ld. APP for the respondent – State vehemently
opposed this appeal as well as the submissions made by Ld. Advocate
Mr. RM Agrawal for the appellant – accused about reduction of
sentence. However, it was submitted that
there cannot be any dispute that the quantity
of contraband article seized from the accused was greater than small
quantity, but lesser than commercial quantity and, therefore, section
22[b] of the NDPS Act would apply for awarding appropriate punishment
and there is also no dispute that in the instant case, the trial
Court awarded the maximum sentence of imprisonment and the maximum
fine prescribed. Mr. Pandya, Ld. APP submitted that considering the
nature of offence so also the seriousness of the crime, there is no
reason to reduce the punishment awarded to the appellant –
accused. It is, therefore, submitted that the appeal may be
dismissed.
7. We
have given our anxious considered thought to the rival submissions
made by the learned advocates appearing for the parties with regard
to awarding of sentence when the quantity of contraband article
seized is less than commercial quantity.
8.
In the case of Balwinder
Singh v. Asstt.
Commissioner, Customs and Central Excise, (2005) 4 SCC 146,
the Supreme Court has narrated the relevant factors to be considered
for reduction of sentence for the offence under NDPS Act. In the said
case, the accused was convicted under the NDPS Act for the first time
and, therefore, the sentence was reduced from RI for 14 years to RI
for 10 years.
9. In
the case of Shantilal
v. State of M.P., (2008) 1 SCC (Cri),
Supreme Court, in para 31 of the reported decision has held as under:
“31. The
next submission of the learned counsel for the appellant, however,
has substance. The term of imprisonment in default of payment of
fine is not a sentence. It is a penalty which a person incurs on
account of non-payment of fine. The sentence is something which an
offender must undergo unless it is set aside or remitted in part or
in whole either in appeal or in revision or in other
appropriate judicial proceedings or “otherwise”. A term
of imprisonment ordered
in default of payment of fine stands on a different footing. A
person is required to undergo imprisonment either because he is
unable to pay the amount of fine or refuses to pay such amount. He,
therefore, can always avoid to undergo imprisonment in default of
payment of fine by paying such amount. It, is, therefore, not only
the power, but the duty of the court to keep in view the nature of
offence, circumstances under which it was committed, the position of
the offender and other relevant considerations before ordering the
offender to suffer imprisonment in default of payment of fine.”
10. The
ratio laid down by Hon’ble the Apex Court in the above referred
decision is squarely applicable to the facts of the instant case. In
the instant case, as per the case of the prosecution, contraband
article weighing 89 Gram and 450 Miligram Brown Sugar [Heroin] came
to be recovered. Now as per serial no. 56 in the table, small
quantity is defined upto 5 gram and the
commercial quantity is defined 250 Gram or more of heroin. In the
instant case, the quantity seized is intermittent quantity, namely
greater than small quantity and lesser than commercial quantity. In
that case, considering section 22 [b] of the NDPS Act, the maximum
sentence prescribed is RI for a term which may extent to 10 years
and the maximum fine prescribed is upto Rs.1 lac. No minimum sentence
of imprisonment or fine is prescribed as the same is prescribed for
the commercial quantity. In the instant case, perusing the impugned
judgment and order rendered by the trial Court and more particularly
para. 40, it clearly transpires that the trial Court observed that
the quantity seized from the possession of the accused was greater
than small quantity, but lesser than commercial quantity. The trial
Court then observed that considering the punishment prescribed for
such contravention, adequate sentence was required to be imposed and
ultimately, as stated above, awarded the maximum term of imprisonment
and the maximum fine. The trial
Court while exercising the discretion in awarding maximum sentence of
imprisonment and the maximum fine, no sufficient reasons are
assigned.
11. Seen in the above
context, the sentence imposed on the appellant – accused
deserves to be adequately modified by partly allowing this appeal. We
are of the considered opinion that when the appellant – accused
is already undergoing sentence since last 8 years and 11 months, the
period undergone by her in the jail can definitely be said to be
adequate sentence. Considering the submissions advanced regarding the
poor financial condition of the appellant – accused, so also
considering the period of imprisonment already undergone by her in
the jail, we are of the opinion that the fine of Rs.25,000/- and in
default of payment of fine, simple imprisonment [SI] for two months
would serve the ends of justice.
12. For
the foregoing reasons, the appeal is allowed
in part and accordingly it is partly allowed
qua the sentence only. The impugned judgment and order of conviction
passed in Special [NDPS] Case No. 9/2002 by the Ld. Special Judge
[NDPS], Surat, against the appellant – accused is confirmed
and maintained. However, while upholding the conviction of the
appellant – accused under section 22 read with section 8[c] of
the NDPS Act, the sentence already undergone by the appellant –
accused in the jail shall be her sentence of imprisonment and the
appellant – accused shall pay fine of Rs.25,000/- [Rupees
twenty five thousand only] and in default of payment of fine, SI for
two months. In light of this, the sentence awarded by the trial Court
shall stand set aside.
[
D.H. WAGHELA, J. ]
[
J.C. UPADHYAYA, J.]
* Pansala.
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