JUDGMENT
Akil Kureshi, J.
1. Appellant is the original accused. By the impugned judgment and order dated 22.8.2006 passed by the learned Additional City Sessions Judge, Ahmedabad in Sessions Case No. 151/04, the appellant was convicted for offence punishable under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter to be referred to as “the NDPS Act”) and sentenced to 7 years of R.I. and fine of Rs. 25,000/-. In default of payment of fine, he was directed to undergo R.I. For 6 months.
2. At the outset, learned advocate Shri Rajesh Agrawal for the appellant submitted that the appellant is an extremely poor person. He is about 70 years of age with failing health. He had earlier undergone treatment for cancer. Presently also he is not in good health. He, therefore, submitted that instead of arguing the appeal on merits, he would focus only on the question of sentence.
3. In view of the above averments, I have examined the appeal mainly from the angle of sentence imposed on the appellant.
4. In view of no challenge to the conviction of the appellant, it now stands proved that he was found in conscious possession of 9.1 k.g. of ganja. It may be noted that small quantity for ganja is 1 k.g. and commercial quantity prescribed under the NDPS Act is 20 k.g. The appellant was thus found in possession of ganja which was larger than small quantity but less than the commercial quantity.
5. In a recent judgment and order dated 10.4.2008 passed in Criminal Appeal No. 1672 of 2004 this Court found that the accused was carrying 13.840 kgs. of ganja and this Court had reduced the sentence to 4 years of R.I. and fine of Rs. 10,000/-.
6. In an order dated 4.4.2008 passed in Criminal Appeal No. 1229 of 2004, following observations were made”:
5. Mr. Agrawal has drawn my attention to the decision of the Apex Court in the case of Balwinder Singh v. Asstt. Commissioner, Customs and Central Excise reported in 2005(2) EFR 420 : AIR 2005 SC 2917 wherein the accused was found in possession of 175 kgs of Heroin and 39 kgs of Opium. However, considering that the accused was a first time offender, sentence of 14 years of imprisonment imposed by the Courts below was reduced to minimum prescribed under the Act that of 10 years.
5.1 My attention is also drawn to the decision of the Division Bench of this Court dated 09.01.2008 in the case of rendered in Criminal Appeal No. 904 of 2000 wherein the accused were found in possession of Charas weighing nearly 9.5 Kgs. The Division Bench reduced the punishment from that of rigorous imprisonment of 15 years to the minimum of 10 years as prescribed under the Act.
5.2 Similarly in a judgement dated 05.02.2008 rendered by the Division Bench of this Court in Criminal Appeal No. 954 of 2003 with Criminal Appeal No. 2277 of 2004, the accused were found to be in possession of Charas of nearly 6 Kgs. The Division Bench reduced the sentence from rigorous imprisonment of 12 years to the minimum of 10 years prescribed.
5.3 In the case of Ghasita Sahu v. State of Madhya Pradesh reported in 2008 AIR AIAR (Criminal) 277, the Apex Court considering the poor background of the accused reduced the punishment from 5 years to one already undergone (about 4 years as noticed by the Apex Court) and also reduced the fine from Rs. 20,000/- to Rs. 10,000/- and imposed the default sentence of six months. It was a case wherein the accused was found carrying 17 Kgs of Ganja. It may be noted that commercial quantity for Ganja is prescribed as 20 Kgs.
5.4 In the case of Shanti Lal v. State of M.P. reported in 2007(2) EFR 702, the Apex Court in para 36 observed that the accused appellant is a very poor person and it was his first offence. It is further observed that because of poverty he could not pay the heavy amount of fine of Rs. 1 lakh and that if he is ordered to remain in jail even after the period of substantive sentence is over only because of his inability to pay fine, serious prejudice will be caused not only to him but also to his family members who are innocent. With these observations the Apex Court though found itself unable to reduce the fine below the minimum of Rs. 1 lakh prescribed by the legislature directed that in default of payment of the said fine, the accused appellant shall serve sentence of six months.
7. Having thus heard learned advocates appearing for the respective parties and having taken into account relevant aspects of the matter, I find that imposition of the sentence of 7 years and fine of Rs. 75,000/- in the facts of this case are harsh.
8. As already stated the appellant was found in possession of 462.916 gms of charas. Small quantity of charas is defined as 100 gms and commercial quantity is 1 Kg. The appellant was thus carrying charas more than small quantity but substantially lesser than commercial quantity. In that view of the matter, and also considering the fact that the appellant is a first time offender and has no other criminal antecedents, the sentence of 7 years of rigorous imprisonment needs to be reduced. So also imposition of fine of Rs. 75,000/- against the maximum permissible fine of Rs. 1 lakh in facts of the case is high.
9. Taking into account the various decisions noted hereinabove and also taking into account special facts of the case including the facts that the appellant is stated to be a very poor person, this is his first involvement in a criminal case and the quantity of the drug found in his possession I find that the ends of justice will be met if the sentence is reduced to rigorous imprisonment for 4 years and imposition of fine of Rs. 15,000/-. In default of payment of fine he shall serve sentence of six months of simple imprisonment.
As already noted, in the present case, the quantity of ganja found in person of the appellant was 9.1 kgs. The appellant is admittedly aged about 70 years. He was earlier suffering from cancer. Though the learned APP stated that as per the jail record, the appellant seems to have been cured, he however has developed problem of vision due to old age and operation for cataract has also been carried out on his left eye. Considering all these aspects of the matter, I find that in the present case, the sentence is required to be reduced.
7. In the result, the appeal is disposed of in following terms:
conviction of the appellant under Section 20(b) is upheld.
Sentence however, is reduced to four years of R.I. and fine of Rs. 10,000/-. In case of default of payment of fine, he shall undergo simple imprisonment for six months.
With the above directions, the appeal is disposed of.