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CR.MA/3391/2011 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 3391 of 2011
In
CRIMINAL
APPEAL No. 365 of 2011
With
CRIMINAL
APPEAL No. 365 of 2011
=========================================================
STATE
OF GUJARAT – Applicant(s)
Versus
ARIFBEG
@ LALA UMARAVBEG MIRZA & 1 – Respondent(s)
=========================================================
Appearance
:
MR
KARTIK PANDYA, APP for
Applicant(s) : 1,
None for Respondent(s) : 1 –
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 03/10/2011
ORAL
COMMON ORDER :
(Per
: HONOURABLE MR.JUSTICE J.C.UPADHYAYA)
1. The
applicant – appellant – State has filed this application
u/s. 5 of the Limitation Act praying for condondation of delay of 47
days caused in preferring appeal under section 377 of the Criminal
Procedure Code [Cr. P.C] challenging adequacy of the sentence awarded
on 28/4/2010 by Ld. Addl. Sessions Judge, Court No. 14, City Sessions
Court, Ahmedabad, in Sessions Case No. 134 of 2008, whereby the
respondents herein, who were original accused in the aforesaid
sessions case, came to be convicted of the offence punishable under
Section 20 [b] [ii] [B] of the Narcotic Drugs and Psychotropic
Substances Act [NDPS Act] and each of them came to be sentenced to
undergo rigorous imprisonment [RI] for two years and fine of Rs.100/-
each and in default of payment of fine, RI for 15 days.
2. Mr.
Kartik Pandya, Ld. APP, for the applicant – appellant –
State submitted that the delay caused in preferring the appeal is on
account of administrative ground in obtaining the sanction order for
preferring the appeal and the contents of the application are
supported by the affidavit of Under Secretary of the Legal Department
of the State. Mr. Pandya, Ld. APP further submitted that even on
merits, it is quite obvious that the sentence awarded by the trial
Court for such serious offence is disproportionate to the seriousness
of the crime and is highly insufficient. It is, therefore, submitted
that even on merits, the appellant has meritorious case and if the
delay is not condoned, the meritorious case of the prosecution shall
be adversely affected and the prosecution shall suffer great
prejudice.
3. Since
Mr. Kartik Pandya, Ld. APP, for the applicant – appellant –
State has submitted that there are merits in the appeal preferred
under section 377 of the Cr. P.C and that if the delay is not
condoned, the meritorious case of the prosecution shall be adversely
affected and that the prosecution shall suffer great prejudice, we
deem it expedient to examine impugned judgment and order rendered by
the trial Court, more particularly the question of adequacy of
sentence awarded to the respondents accused. Considering the impugned
judgment and order, so also the relevant papers supplied to us for
our perusal, it becomes clear that both the accused came to be
convicted for the offence of possessing contraband substance Charas.
It further transpires considering the evidence on record so also the
seizure panchnama exh. 23, the weight of Charas seized from the
accused along with the bag was 140 grams and the net weight of the
Charas without bag was 138 grams. Considering serial no. 23 in the
schedule attached to the NDPS Act, it is clear that the possession of
Charas upto 100 grams is considered to be small quantity, whereas the
possession of Charas of 1 Kg., and above is considered to be
commercial quantity. In the instant case, the Charas weighing 138
grams came to be seized. Thus, it is clear that the weight of the
Charas which was seized was slightly more than the small quantity,
whereas considerably less than the commercial quantity. In this
respect, considering section 20 of the NDPS Act, so far as the small
quantity is concerned, the contravention is made punishable with RI
for a term which may extend to six months or with fine which may
extend to Rs.10,000/- or with both. In the instant case, 38 grams
Charas was more than the small quantity. In the instant case, where
the quantity of Charas which came to be seized from the accused was
greater than small quantity, but lesser than commercial quantity, the
punishment prescribed is RI for a term which may extend to 10 years
and fine which may extend to Rs.1 lac. As seen above, in the instant
case the quantity of Charas which came to be seized is slightly more
than small quantity but considerably less than commercial quantity.
In the impugned judgment, while determining the quantum of sentence,
the trial Court took into consideration this aspect of the matter as
well as other relevant factors which were considered to be mitigating
circumstances. Under such circumstances, keeping in mind the sentence
prescribed for small quantity, so also the fact that the quantity of
Charas which came to be seized was slightly more than small quantity,
we are of the considered opinion that the discretion exercised by the
trial Court while determining the quantum of sentence cannot be said
to be arbitrary or perverse. We, therefore, do not find any reason to
interfere with the discretion exercised by the trial Court.
4. In
the above view of the matter, the submission made on behalf of the
applicant – appellant State that there are merits in the appeal
preferred under section 377 of the Cr. P.C has no force. Under such
circumstances, even if the delay, as prayed for is condoned and the
applicant – appellant is permitted to prefer this appeal, no
fruitful purpose would be served.
5. For
the foregoing reasons, the application praying condonation of delay
and the appeal stand dismissed.
(D.H.WAGHELA,
J.)
(J.C.UPADHYAYA,
J.)
*
Pansala.
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