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CR.A/2344/2006 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2344 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================================
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 ?
=========================================================
SOMNATH
RAJENDRANATH SAIPANTH - Appellant(s)
Versus
THE
STATE OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
PK SHUKLA for
Appellant(s) : 1,
MR HL JANI, APP for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 06/10/2010
ORAL
JUDGMENT
The
appellant original accused has filed this Appeal under Section
374 of Cr.P.C. against the Judgment and order of conviction and
sentence dated 11.08.2006 passed by the learned Additional Sessions
Judge, Court No.18, City Civil & Sessions Court, Ahmedabad, in
Sessions Case No. 262 of 2006, whereby the learned Addl. Sessions
Judge has held the appellant accused guilty for the offences
punishable under Sections 8(C), 20(B), II(B), 22 and 29 of the
Narcotic Drugs and Psychotropic Substance Act, 1985 (for short NDPS
Act ) and sentenced him to suffer Rigorous Imprisonment for 5
years and to pay fine of Rs.30,000/- i/d to further undergo SI for
six months.
The
brief facts of the case of prosecution are that on 28.6.2005 at
night combing the Police Inspector Shri R.V. Rabari and his staff
received the information that in the morning at about 8.00 A.M., one
person, named, Somnath, wearing Kesari colour Jabbha and Dhoti, is
reaching near Soni’s Chawl Char Rasta, Odhav, Ahmedabad with large
quantity of Ganja. On receipt of such information P.I. Rabari made
the entry in Station Diary and also informed his superior officer
and thereafter he called the two panchas. The first part of the
panchnama was prepared by the P.I. Thereafter the Police Inspector,
along with the Staff and the Panchas, reached the place and kept
watch. Thereafter, after about half an hour one person came who was
stopped by the raiding party and on interrogation the said person
was found with contraband articles. The police seized the said
article Ganja and the sample was sent for analysis. Thereafter the
offence under the provisions of the NPDS Act was registered against
the appellant accused.
Necessary
investigation was carried out by the Police. Offence under Sections
8(C), 20(B), II(B), 22 and 29 of NDPS Act was registered against the
accused. The statements of the witnesses were recorded. Thereafter,
after completion of investigation the charge-sheet against the
accused came to be submitted before the Court. The learned
Additional Sessions Judge framed the charge against the accused. The
accused pleaded not guilty to the charge and claimed to be tried.
To
prove the case against the accused, the prosecution has examined the
witnesses and also relied upon documentary evidence and at the end
of trial, after recording the statement of the accused under Section
313 Cr. P.C., and after hearing the arguments on behalf of the
prosecution and the defence, the learned Sessions Judge held the
appellant (original accused) guilty of the offence charged against
him and awarded the sentence as narrated herein above.
Being
aggrieved by and dissatisfied with the aforesaid Judgment and order
of conviction and sentence the appellant accused has preferred
this Appeal.
Heard
learned advocate Mr. P.K. Shukla, appearing on behalf of the
appellant accused and learned APP Mr. H.L. Jani, on behalf of
the respondent State. I have gone through the Judgment and order
passed by the trial Court. I have also considered the documents
produced on the record of the case.
Learned
Advocate, appearing on behalf of the appellant accused, has
contended that the appellant accused has not committed any
offence as alleged in the charge. He has contended that looking to
the oral as well as documentary evidence of the witness has not
committed the offence alleged against him. He has contended that
there are serious contradictions in the oral evidence of the
witness. Learned Advocate has also contended that the accused has
already undergone the sentence of five years awarded by the learned
Additional Sessions Judge. He has contended that the learned Judge
has also ordered to pay fine of Rs.30,000/- and in default of fine
the appellant accused should suffer SI for six months and at
present the appellant accused is undergoing the sentence awarded
by the learned Additional Sessions Judge in default of fine which
also the appellant has already undergone for more than a period of 3
months. The learned Advocate, therefore, contended that looking to
the poor condition of the accused he is not in a position to pay the
fine and when he has already undergone the sentence awarded by the
learned Judge, therefore, some leniency may be shown towards the
appellant accused.
Learned
APP has supported the Judgment and order passed by the learned
Sessions Judge and contended that looking to the seriousness of
offence no interference of this Court is called for. He has
contended that looking to the facts and evidence on records the
learned Judge has rightly held the accused guilty for the offence
alleged against him and, therefore, no interference is called for.
I
have gone through the Judgment and order passed by the learned
Additional Sessions Judge and also gone through the documents
produced before me. I have also considered the submissions made by
the learned Advocates for the parties. The learned APP has also
produced the jail record of the appellant accused which shows
that the appellant = accused has alrready undergone the sentence of
5 years, 2 months and 3 days. The said Report is of 31.8.2010, that
means the appellant has completed the sentence of more than 5 years
and three months. From the evidence on record it clearly appears
that the learned Judge has not committed any error in holding the
appellant accused guilty for the offences charged against him.
However, looking to the facts and circumstances of the case, in my
opinion, the sentence, in default of non-payment of fine, is
required to be reduced. The learned Advocate appearing on behalf of
the appellant has also not argued the matter seriously on merit and
contended that the appellant accused is an illiterate and poor
person and he is the bread-winner of the family and, therefore, some
leniency may be shown. Looking to the facts of the case if the
sentence for non-payment of fine awarded by the learned Addl.
Sessions Judge is reduced to 3 months, instead of 6 months, as
ordered by the learned Judge, the same would serve the ends of
justice.
In
view of above, the Appeal is partly allowed. The Judgment and order
of conviction dated 11.8.2006, awarding substantive sentence passed
by the learned Additional Sessions Judge, Court No.18, Ahmedabad, in
Sessions Case No.262 of 2006 convicting the appellant accused
for the offence under Sections 8(C), 20(b), II(b), 22 and 29 of the
NDPS Act is hereby confirmed. However, the order of sentence to pay
fine of Rs.30,000/- i/d to undergo SI for 6 months is altered and
reduced to the effect that in default of payment of fine the
appellant accused shall undergo SI for three months, instead of
SI for six months as ordered by the learned additional Sessions
Judge. The appellant accused has already undergone the sentence
and, therefore, he shall be set at liberty forthwith if he is not
required to be detained in any other case. Rest of the Judgment and
order passed by the learned Additional Sessions Judge is confirmed.
R & P to be sent back to the trial Court immediately.
(Z.K.SAIYED,
J.)
sas
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