THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.647 of 2008 18-12-2014 BETWEEN:
Kabiraju Sri Trinadha Baba Swaroop Das …..Appellant/accused AND State of Andhra Pradesh by Public Prosecutor, High Court of Judicature at Hyderabad For the State of Telangana and the State of Andhra Pradesh.
…..Respondent THIS COURT MADE THE FOLLOWING JUDGMENT:
THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.647 of 2008 JUDGMENT:
The Criminal Appeal is preferred by the appellant/accused challenging the Judgment, dated 04.04.2008, in NSC No.68 of 2007 passed by the Court of the Special Judge to try offences under Narcotic Drugs and Psychotropic Substances Act-cum-Metropolitan Sessions Judge-cum-I Additional District and Sessions Judge, Visakhapatnam, whereby the learned Judge found the appellant/accused guilty for the offence under Section 8(c) read with Section 20(b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentenced him to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.500/- (Rupees five hundred only), in default, to suffer simple imprisonment for a period of one month.
The case of the prosecution, as recorded by the Court below, is as follows:-
The case of the prosecution, as seen from the evidence of prosecution witnesses, is that on 11.08.2007 at about 2.00 p.m., while P.W.1 was inspecting land encroachments at uphills of the temple, he was called by the Gopalapatnam Police to act as mediator, as such, they went to steps of Lakshmi Narasimha Swamy temple near Bangaramma temple and noticed the accused and when questioned, he revealed his name.
At that time, police showed three bags of ganja and cash of Rs.975/- which was alleged to be seized from the possession of accused.
On verification of the contents of the bags, it is found that one bag containing 4 kgs., of ganja, second bag containing 3 kgs of ganja and third bag containing 3 kgs and odd ganja and in all 10 kgs 800 grams of ganja was seized. Thus, the charge.
To prove the guilt of the accused, P.Ws.1 to 4 were examined and Exs.P.1 to P.3 and M.Os.1 to 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)(ii)(A) of the NDPS Act and convicted and sentenced him 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 is convicted and sentenced for possessing ganja of ‘commercial quantity’.
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 around 10 Kgs only, and hence, the same can be considered as ‘less than commercial quantity’, as per the Notification referred above. 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 lookafter his family and he 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 nature of offence and 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 Court below for the offence under Section 8(c) read with Section 20(b)(ii)(A) of the NDPS Act is modified to the offence under Section 8(c) read with Section 20(b)(ii)(B) of the NDPS Act; and the sentence of imprisonment is modified and reduced to the period, which the appellant/accused has already undergone. The fine amount of Rs.500/- (Rupees five hundred only) and default condition, as imposed by the Court below, is not interfered with by this Court.
The Criminal Appeal is accordingly partly allowed. Consequently, the miscellaneous petitions, if any pending in this appeal, shall stand closed.
JUSTICE RAJA ELANGO 18.12.2014 pln