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SCR.A/990/2009 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 990 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKIL KURESHI
=========================================================
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 ?
=========================================================
STATE
OF GUJARAT THRO' D.G. SHAH - Applicant(s)
Versus
DERMOCARE
LABORATORIES & 2 - Respondent(s)
=========================================================
Appearance
:
MR
JK SHAH, APP For Applicant(s) : 1
MRS SHILPA R SHAH for
Respondent(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 03/02/2011
ORAL
JUDGMENT
This
petition has been filed by the State challenging the judgment and
order dated 12.5.2008 passed by the learned Chief Metropolitan
Magistrate, Ahmedabad in Criminal Case No.126/97. The case pertains
to offence punishable under the provisions of Drugs and Cosmetics Act
1940 allegedly committed by the respondents herein. During the course
of trial, the respondents filed an application dated 13.3.08 and
stated that the trial is in progress, and five witnesses have been
examined. The accused also stated several reasons due to which
according to them, punishment below the minimum prescribed under the
relevant provisions of the Drugs and Cosmetics Act was required to be
imposed in their case. It appears that the State opposed this
application. No order was passed on the said application of the
accused. Once again on 3.4.08, they moved a fresh pursis and stated
that the offences are of technical nature and the case is pending
since 12 years resulting into great mental agony to them. The Court
may, therefore, impose punishment even less than the minimum
prescribed. In reply to this application, the State filed a detailed
opposition at Ex.68 contending, inter alia, that offences alleged are
serious and in case of offence under section 27(c) of the Drugs and
Cosmetics Act, minimum punishment prescribed is of three years and in
case of offence under section 27(d), minimum sentence prescribed is
of one year. There is evidence on record against the accused of
having committed such offences. Offences are of serious nature and
therefore strict punishment may be imposed. It was also contended
that provisions of plea bargaining would not apply to such offences
under the Drugs and Cosmetics Act.
Before
the learned Magistrate on 12.5.08, the accused pleaded guilty. Such
plea was unconditional as is apparent from the recording of pleas at
Ex.141 and 143. Thereupon the learned Magistrate proceeded to pass
the impugned order on 12.5.08 itself.
I
have perused the order under challenge with the assistance of the
learned advocates appearing for both sides. The learned Magistrate in
the said order has relied heavily on the provisions of plea
bargaining added in the Criminal Procedure Code in the newly
introduced Chapter XXI-A. Learned Magistrate recorded that the case
is pending since 12 years. Accused have admitted their guilt.
Provisions of plea bargaining therefore should be applied. Many cases
are pending. This case is likely to take further time before
conclusion. Therefore, also, benefit of plea bargaining should be
granted to the accused. Considering all these aspects, placing heavy
reliance on the concept of plea bargaining, the learned Magistrate
proceeded to impose punishment of fine of Rs.5,000/- and imprisonment
till rising of the Court.
In
my view, the learned Magistrate committed serious error in imposing,
what the Supreme Court in different cases, described as ‘flea-bite’
of a punishment, that too relying on the principles of plea
bargaining which are not applicable in the present case. The offences
alleged against the accused were those punishable under section 27(d)
of the Drugs and Cosmetics Act, for which minimum punishment
prescribed is of one year, subject to of course, imposing below the
minimum, for adequate and special reasons to be recorded in the
judgment. It would, therefore, be necessary to find out whether there
were adequate and special reasons recorded by the learned Judge in
the impugned judgment.
I
have threadbare perused the judgment under consideration. Sole ground
on which the learned Magistrate was prompted to impose punishment
well below the minimum was that the accused had pleaded guilty before
the trial was over and that therefore they should be given the
benefit of plea bargaining. The entire logic was fallacious.
Principally, the accused had never applied for plea bargaining. Their
applications dated 13.3.08 and 3.4.08 never mentioned anything about
their preparedness to admit the guilt on condition or promise that
lesser punishment will be imposed. Such applications even if remotely
considered as ones of plea bargaining were stoutly opposed by the
State through written reply wherein it was contended that the offence
cannot be stated to be technical, there is sufficient proof on record
to drive home the charges and plea bargaining would not apply in such
cases. Despite such strong opposition from the State, learned
Magistrate unilaterally and in my view erroneously proceeded to apply
the provisions of plea bargaining and imposed punishment which was
almost non-existent. Sentence of imprisonment till rising of the
Court and fine of Rs.5,000/- by no stretch of imagination can be
stated to be any worthwhile punishment particularly when ordinarily
offence under section 27(d) of the Drugs and Cosmetics Act would
attract minimum sentence of one year.
The
concept of plea bargaining cannot be applied arbitrarily. It is
governed by the statutory provisions contained in Chapter XXI-A of
the Criminal Procedure Code. A detailed procedure is prescribed in
section 265A to 265L. No such procedure was followed in the present
case. In fact, application of the accused was not for plea
bargaining. Even it was treated to be one for plea bargaining, the
same was opposed by the State. Under the circumstances, I am of the
opinion that the learned Judge committed serious error in importing
the principles of plea bargaining and reducing the punishment well
below the minimum punishment prescribed under the law. Reasons
recorded cannot be stated to be either adequate or special reasons to
impose punishment below the minimum.
Under
the circumstances, order dated 12.5.08 passed by the learned Chief
Metropolitan Magistrate is quashed. Instead of undertaking the
exercise as to what should be the appropriate punishment, in the
facts of the case, I deem it proper that the entire proceedings be
remanded to the learned Judge for consideration after hearing the
accused. It is clarified that admission of guilt has achieved
finality. The learned Magistrate shall, therefore, proceed from the
stage of giving an opportunity of hearing to the accused regarding
appropriate punishment, which would include producing any material
they wish to with reference to quantum of punishment. It would be
open to the learned Magistrate to impose appropriate punishment upon
completion of this exercise. Nothing stated hereinabove would limit
the right of the accused to seek punishment below the minimum
prescribed or for the Magistrate to consider such a request in
accordance with law.
With
the above observations and directions, the petition is disposed of.
Rule is made absolute to the above extent.
(Akil
Kureshi, J.)
(vjn)
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