(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. The present appeal is directed against the judgment and order passed by learned Special Judge in NDPS Case No.11 of 2005; whereby, the learned Special Judge has convicted the appellant-accused for the offence under Section 20(b) of Narcotic Drugs and Psychotropic Substances Act, 1985 (herein after referred to as 'the Act') and has imposed the sentence of 10 years R.I. with the fine of Rs.1 Lac and further 2 years R.I. for default in payment of fine.
2. As per the prosecution case, on 21.8.2005, Shri G.N.Zala, Police Inspector who was in-charge of the DCB Police Station, Vadodara received information that two persons, one aged about 20 years wearing white shirt and checks pent having blue colour bag and another person aged about 14 years wearing sky white checks design shirt and brown pent and having white plastic bag with him are at S.T.bus stop and the bags were carried by them containing ganja and therefore, the said information was recorded. The intimation was given to the immediate Superior Officer and the arrangement for raid was made. The panchas were called for search and seizure. They proceeded at the spot. Since it was after sunset and if the raid was not immediately carried out, the chances of escaping were there and therefore, the same was accordingly recorded in the station diary and thereafter, the raiding officer had proceeded for raid. It was found that at the S.T. Depot Intercity Platform two persons for which the information was received with the same description were present and they identified themselves as Kamleshkumar Shriraghu Mahanto accused herein (A-1) and another Devkumar Shriraghu Mahanto(Juvenile). Since they were not knowing Gujarati, they were made to understand in Hindi for their search. They were informed that they have an option for search in presence of any other Gazetted Officer or the Magistrate but such option was not exercised and thereafter, the search was carried out. The intimation was given to the FSL officer for preliminary testing of the substance and for weighing the same. From the possession of the bag of A-1, 5 Kg. and 700 grams ganja was found, whereas, from the bag in possession of Juvenile, 2 Kg. and 600 gms ganja was found. The preliminary testing was made and the result was positive. Thereafter, the samples were taken and the remaining substance and material was sealed and seized and thereafter, the complaint was filed with DCB Police Station at Exh.66.
3. The case was further investigated and thereafter, the charge-sheet was filed. The case was committed to the competent Court of the learned Special Judge being NDPS Case No.11 of 2005. The prosecution in order to prove the guilt of the accused examined the 13 witnesses, the details of whom are mentioned by the learned Special Judge at paragraph No.10 of the judgment. The prosecution also produced the documentary evidences of 29 documents, the details of which are mentioned by the learned Special Judge at paragraph No.11 of the judgment. The learned Special Judge, thereafter, recorded the statement of the accused under Section 313 of Criminal Procedure Code; wherein, the accused denied the evidence against them but in the further statement, it was stated by the accused that he has been wrongly implicated in the case and the charge-sheet was filed based on the false evidence. The learned Special Judge, thereafter, heard the prosecution and the defence and ultimately found accused guilty for the offence. The learned Special Judge heard the prosecution and the defence on the aspect of sentence and ultimately, imposed the sentence as referred to herein above. Under these circumstances, the present appeal before this Court.
4. We have considered the evidence on record. We have also considered the judgment and the reasons recorded by the learned Special Judge. We have also heard Mr.Baghel, learned counsel for the appellant and Mr.Pandya, learned APP for the State.
5. Learned counsel appearing for the appellant raised the only contention that even if it is considered that case was proved for the offence under Section 20(b)(ii) of the Act, the punishment imposed upon the accused by the learned Special Judge for the alleged offence is improper. It is submitted by the learned counsel for the appellant that as per the provision of the Act, if the offence was for small quantity of ganja, the punishment provided is six months or fine, which may extend to Rs.10,000/- and if the quantity is greater than small quantity, but lesser than commercial quantity, which is in the present case, the punishment provided is of a term, which may extend to 10 years with the fine of Rs.1 Lac. Therefore, it was submitted that keeping in view that the ganja found, was less than 20 kgs. or more, which is a commercial quantity, for which the maximum punishment is of 10 years, the learned Special Judge ought to have imposed lesser sentence than the maximum sentence provided. It was submitted that the same situation would be for the imposition of fine. It was submitted that the accused-appellant is a very poor person and he has no capacity to pay the fine and therefore, this Court may reduce the punishment.
6. The learned APP supported the sentence imposed by the learned Special Judge contending that since it was NDPS Act matter, the discretion has been properly exercised by the learned Special Judge and the matter does not call for reduction of sentence.
7. Even as per the prosecution case, which is proved, shows that the quantity found from the possession of accused-appellant, was 5 Kgs 700 gms. i.e. less than 6 Kg. ganja. It is not the case of the prosecution that the offence has been committed for second time by the accused. As per Section 20(b)(ii), the maximum sentence provided for small quantity 1 kg. is 6 months R.I. or with the fine which may extend to Rs.10,000/- or both. As per Section 20(b)(ii)(B), if the quantity is less than commercial quantity, but greater than small quantity, which is in the present case, the punishment provided is R.I.for a term, which may extend to 10 years and with the fine which may extend to Rs.1 Lac. We are not required to consider the punishment provided by Clause(C) of Section 20(b)(ii) and therefore, the said aspect need not be narrated.
8. The principles of sentencing and proportionality of punishment are by now well settled. The gravity of offence does matter and is one of the relevant aspects to be taken into consideration by the Court while sentencing the guilty person, keeping in view the personal circumstances too of the person upon whom the sentence is to be imposed and also the deterrent effect to be created in the society. Considering the facts and circumstances that for smaller quantity the maximum sentence provided is of 6 months, and for the quantity lesser than commercial quantity, but greater than smaller quantity, the maximum sentence has been provided of 10 years, we find that the aspect of quantity of about less than 6 kg. found from the possession, including the personal circumstances of the accused that he is too poor are required to be taken into consideration coupled with the evidence of I.O. in the cross examination that there is no criminal background found of the accused prior to the present incident. Hence, we find that considering the aforesaid aspects, an appropriate sentence could be 5 years R.I. with the fine of Rs.50,000/- and 5 months R.I. for default in payment of fine as against 10 years R.I. with the fine of Rs.1 lac and 2 years R.I. for default in payment of fine as imposed by the learned Special Judge.
9. Under the circumstances, while maintaining the conviction of the accused on the aspect of sentence, it would be just and proper to reduce the punishment and sentence upon the appellant-accused by 5 years R.I. in place of 10 years R.I. as imposed by the learned Special Judge with the fine of Rs.50,000/- and 5 months R.I. for default in payment of fine, instead of fine of Rs.1 Lac and 2 years R.I. for default in payment of fine as imposed by the learned Special Judge. The other part of the judgment and the order of the learned Special Judge does not deserve to be interfered with.
10. In view of the aforesaid observations and discussions, the appeal is partly allowed. Impugned judgment and order passed by the learned Special Judge in Special NDPS Case No.11 of 2005 for the offence punishable under Section 20(b)(ii)(B) of the Act is confirmed for conviction. However, on the aspects of sentence, the judgment and order of the Special Judge is modified to the effect that the sentence shall be 5 years of R.I. in place of 10 years R.I. with the fine of Rs.50,000/- and 5 months R.I. for default in payment of fine, in place of fine of Rs.1 Lac and 2 years R.I. in default of payment of fine. The other part of the judgment and the order of the learned Special Judge is not interfered with.
(JAYANT PATEL, J.) (ashish) (PARESH UPADHYAY, J.)