THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.411 of 2009 07-08-2014 BETWEEN:
Bollu Mangamma …..Appellant/accused AND The State of A.P., rep. by Public Prosecutor, High Court of Judicature at Hyderabad For the State of Telangana and the State of A.P.
…..Respondent THIS COURT MADE THE FOLLOWING JUDGMENT:
THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.411 of 2009 JUDGMENT:
The Criminal Appeal is preferred by the appellant/accused challenging the Judgment, dated 20.11.2008, in S.C. No.260 of 2006 passed by the Court of the I Additional Sessions Judge (Special Sessions Judge for NDPS cases), Warangal, whereby the learned Judge found the appellant/accused guilty for the offence under Section 8(c) punishable under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentenced her to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- (Rupees one lakh only), in default, to suffer further imprisonment for a period of three years.
The case of the prosecution is as follows:-
That on 02.03.2006, when P.W.4, the Probationary Sub Inspector of Police, along with his staff were on patrolling duty in Guduru Bus stand, they found the accused along with two stick handle bags. On suspicion, they made enquiries and then she disclosed her identity and was carrying ganja. P.W.4, in the presence of P.W.3, the Mandal Revenue Officer, searched the bags and found them to contain ganja in plastic covers, weighing 17 kgs. Therefore, he seized the contraband from her possession. Sample of ganja was sent for chemical examination and after receipt of the chemical examination report, the police filed charge sheet against the appellants/accused under Section 8(c) read with Section 20(a)(i) of the NDPS Act.
To prove the guilt of the accused, P.Ws.1 to 4 were examined and Exs.P.1 to P.5 were marked on behalf of the prosecution. No oral or documentary evidence was adduced on behalf of the accused.
On appreciation of oral and documentary evidence, the trial Court found the appellant/accused guilty for the offence under Section 8 (c) read with 20(b)(i) of the NDPS Act and convicted and sentenced her as stated above. Aggrieved by the same, the present appeal is preferred by appellant/accused.
Heard and perused the material available on record.
The learned counsel for the appellant/accused submits that the quantity of the contraband seized is less than the commercial quantity. He further submits that the Court below erroneously came to the conclusion that the quantity seized is a commercial quantity, and as such, the appellant/accused cannot be convicted and sentenced to undergo rigorous imprisonment of ten years and to pay a fine of Rs.1,00,000/- (Rupees one lakh only).
Admittedly, the Notification specifying the commercial quantity, small quantity and less than commercial quantity was notified by the Government in the year 2001, whereas the occurrence, in the present case, took place in the year 2006, and as such said Notification applies to the present case.
It is to be observed that in the present case, the total quantity seized from the appellant/accused is 17 Kgs only, and hence, the same can be considered as less than commercial quantity. The view of the Court below in taking the seized quantity from the appellant/accused as commercial quantity is erroneous and illegal, and as such, the appellant/accused cannot be convicted for carrying ganja of a commercial quantity.
This Court is of the view that the ganja, which was carrying by the appellant/accused, is ‘less than commercial quantity’, and as such, the appellant/accused can be convicted for the offence under Section 8(c) punishable under Section 20(b)(ii)(B) of the NDPS Act, for carrying ganja of ‘less than commercial quantity’ only.
At this stage, the learned counsel for the appellant/accused confines his argument with regard to quantum of sentence, and submits that as the appellant has to look after her five children including three blind children and she is the only bread winner in her family, lenient view may be taken by this Court while imposing sentence of imprisonment.
Considering the submissions made by the learned counsel for the appellant/accused, and also in view of long lapse of time, this Court is inclined to take a lenient view.
In the result, the conviction imposed against the appellant/accused by the I Additional Sessions Judge, Warangal, in S.C.No.260 of 2006 for the offence under Section 8(c) read with Section 20(b)(1) of the Narcotic Drugs and Psychotropic Substances Act, is hereby confirmed. However, the sentence of imprisonment is modified and reduced to the period, which the appellant/accused has already undergone. The sentence of fine amount is also set aside, and the said fine amount, if paid, shall be refunded to the appellant/accused. The appellant/accused shall be set at liberty forthwith, if not required in any other crime.
Accordingly, the Criminal Appeal is partly allowed.
JUSTICE RAJA ELANGO 07.08.2014 pln