This appeal arises out of a judgment and order dated 13.01.2004 rendered in Special Case No.172 of 2000 by the Sessions Court, Palanpur convicting the appellants for offences punishable under the Narcotics Drugs and Psychotropic Substances Act, 1985 ('N.D.P.S. Act' for short), where, the appellants along with one Ismail @ Babubhai Matlubhai Shaikh came to be charged for offence punishable under Sections 8(C), 21 read with Section 29 of the N.D.P.S. Act and all of them came to be convicted for the said offences by the impugned judgment and order. 2. Appellant No.1 – Nawabkhan @ Akbarkhan Musekhan Mangalia is sentenced to undergo rigorous imprisonment of 20 years with a fine of ` 2,00,000/ (Rupees Two Lakh only), in default, to undergo simple imprisonment for further one year. Appellant No.2 – Bawalkhan Musekhan Mangalia was sentenced to undergo rigorous imprisonment for ten years with a fine of ` 1,00,000/ (Rupees One Lakh only), in default, to undergo simple imprisonment for further six months and third accused viz., Ismail @ Babubhai Matlubhai Shaikh was sentenced to undergo rigorous imprisonment for ten years with a fine of ` 1,00,000/ (Rupees One Lakh only), in default, to undergo simple imprisonment for further six months.
3. Accused No.3 – Ismail @ Babubhai Matlubhai Shaikh had preferred a separate criminal appeal, which he has withdrawn, after having undergone the sentence. Similarly, Appellant No.2 – Bawalkhan Musekhan Mangalia has also served the sentence. Therefore, learned advocate Mr. Shital Kumat appearing with learned advocate Mr. Chokshi for the appellants makes a statement at the bar, on instructions, that appellant No.2 – Bawalkhan Musekhan Mangalia does not press this appeal.
4. Now, the appeal is, therefore, required to be heard in respect of appellant No.1 – Nawabkhan @ Akbarkhan Musekhan Mangalia.
5. According to prosecution case, appellant – Nawabkhan @ Akbarkhan Musekhan Mangalia is the owner of the truck, which was found transporting total quantity of 35 kilogram of Brown Sugar worth Rs.35 crores and Bawalkhan Musekhan Mangalia was driving the vehicle. The said vehicle was intercepted on Deesa Palanpur Highway by the officers of Narcotics Control Bureau, who were acting on a previous tipoff. That secret information was reduced into writing. Ultimately, the truck was intercepted, part of the contraband was found and seized, part of the contraband was already delivered and therefore, they raided that place and recovered the same at later point of time. Some of the contraband was subsequently recovered after following requisite procedure of drawing panchnama, etc.
5.1 It would be appropriate to note that the recovery of 35 kilograms of contraband can be divided in three parts; firstly, recovery of 5 kilograms at the time of interception of the truck near Deesa on the Highway; secondly, further recovery of 5 kilogram from the house of accused No.3 – Ismail @ Babubhai Matlubhai Shaikh; and then thirdly, recovery of 25 kilograms from the sealed compartment of the truck at later point of time after five days.
5.2 The accused persons were arrested, muddamal was sent to FSL which was certified to be contraband Brown Sugar and ultimately, complaint was filed. The Special Court framed the charge at Exh.111, to which, accused persons pleaded not guilty and came to be tried and convicted, as stated hereinabove.
6. Today, when the matter is called out, learned advocate for the appellants, at the outset, indicated that Bawalkhan Musekhan Mangalia has already undergone the sentence and he does not press this appeal.
7. So far as the appeal by Nawabkhan @ Akbarkhan Musekhan Mangalia – appellant No.1 herein is concerned, learned advocate Mr. Kumat submitted that Nawabkhan, though he is the owner of the truck, is required to be treated sympathetically. He further submitted that his age is 60 years and is ailing. He also submitted that Nawabkhan has no criminal antecedents. It was submitted that earlier, Nawabkhan sought to be involved in N.D.P.S. Case, where he has been acquitted by a competent criminal Court. He is again sought to be involved in this case. He has suffered sufficiently and has been in jail for almost 12 years. Learned advocate Mr. Kumat further submitted that this appeal may be treated as a mercy petition and while confirming the conviction, the sentence may be reduced to the sentence already undergone. In view of this position, the family of Nawabkhan had already suffered sufficiently.
8. Learned Central Government Standing Counsel Mr.
Dave submitted that looking to the quantity seized, the punishment awarded by the trial Court is justified. The quantum of sentence is a matter of discretion unless it is shown that discretion is not used judiciously, the appellate Court may not interfere with the sentence.
9. Learned APP Ms. Shah appears for the State of Gujarat.
10. Having regard to the facts of the case, it is true that a large quantity of contraband is seized by the Narcotics Control Bureau in this case and when the appellant No.1 – Nawabkhan is not pressing the appeal on merits and is pressing for mercy, we may not go into the merits of the case, but, suffice it to say that the appellant No.1 – Nawabkhan is aged about 60 years. He was earlier sought to be involved in a case of N.D.P.S., where he has been acquitted by a competent criminal Court. The appellant – Nawabkhan is awarded the highest punishment prescribed under the law. The highest punishment is required to be awarded only in exceptional circumstances. In the instant case, what is recorded by the trial Court is large quantity of contraband seized from the appellants allegedly brought or purchased from Pakistan Nation. In our view, with the antecedents of involvement of the appellant No.1 in similar case, this has to be viewed cautiously and as such, baring quantity, there is no aggravating circumstance calling for award of maximum sentence, that too, when the contraband is seized in installments.
11. In our opinion, therefore, looking to the age and other aspects, maximum sentence ought not to have been awarded by the trial Court and is a little harsh. We, therefore, reduce the sentence of appellant No.1 – Nawabkhan @ Akbarkhan Musekhan Mangalia to 12 years with no change in fine. Accordingly, the appeal stands partly allowed.
Sd/ [A.L. Dave, J.] Sd/ [N.V. Anjaria, J.] #MH Dave