(Per : HONOURABLE MR.JUSTICE KS JHAVERI)
1. The appellants ori. Accused have preferred both these appeals under sec. 374(2) of CrPC against the judgment and order dated 21.9.2002 rendered by the learned Special Judge, Surendranagar in Special Case No. 2 of1999 (NDPS), whereby, the appellants have been convicted under sec. 22 and 29 of the NDPS Act and sentenced each of them to suffer R/I for 10 years and to pay a fine of Rs. 1,00,000/- each, and in default of payment of fine, further to suffer R/I for three years.
2. The brief facts of the prosecution case is as under:
2.1 That on 23.8.199, PI, LCB, Surendranagar Mr JB Jadeja has received secret information through informant and consequently after following the necessary formalities and procedure, the raid was organised and on 23.8.99, Room No. 9 of Vimal Guest House, situated at Old Junction road, Surendranagar was raided and both the original accused no. 1 and 2 were found in the room and during the search of suitcase 4 pieces of contraband wrapped in plastic paper were found and after preliminary test, said pieces were found to be charas. First two pieces of charas when weighed, it was found 1kg and 25 grams with wrapper and second two pieces of charas when weighed, they were found of 1kg and 25 grams with wrapper and, thus, from the suitcase of the accused no. 1, in all, 2kg and 50 grams of charas with wrapper was found. Thereafter, after taking the samples of charas therefrom, the weight of first two pieces remained 970 grams and after taking the sample from the second two pieces of charas the weight of the second two pieces of charas remained 980 grams.
2.2 It is further the case of the prosecution that thereafter the suitcase of the accused no. 2 was searched and from there, contraband was also found and after preliminary test, the same was found to be charas. The said charas was in four pieces. The weight of all these four pieces of charas alleged to be found from the suitcase of the ori. Accused no. 2 with wrapper was 950 grams. The samples therefrom was taken and rest of the weight remained 850 grams with wrappers. Thus, from the suitcase of the ori. Accused no.2 charas weighing 950 grams with wrapper was found. The panchnama was prepared and after following the necessary formalities and procedure, both the original accused no. 1 and 2 were arrested on 23.8.1999 at 22.35 hours after following the necessary formalities and procedure, and the offence under sec. 8(c), 22 & 29 of the Act was registered against the original accused no. 1 and 2 at Surendranagar City Police Station vide CR No. II-173 of 1999 on the strength of the complaint given by PI Mr. JB Jadeja, LCB, Surendranagar and investigation was handed over to PI Mr. Raisinh C. Rathod and after completion of the investigation, the charge-sheet was filed and it was registered and numbered as Special case No. 2 of 1999 (NDPS) in the Court of Sessions Judge, Surendranagar.
3. Thereafter, the charge was framed against the appellants. The appellants accused pleaded not guilty to the said charge and claimed to be tried.
4. In order to bring home, the charge levelled against the accused, the prosecution has examined the following witnesses:
Harshad Natvarlal Ex. 26 Maheshbhai Harjivanbhai Ex. 28 Jashwantsinh Jadeja Ex. 30 Habib Umarbhai Ex. 60 Dilavar Jusab Ex. 62 Gopalsinh Balvantsinh ex. 66 Devang Harilal Ex. 71 Prakash Himmatlal Ex. 72 Dhanjibhai Nathabhai Ex. 75 Raisinh Chandrasinh Ex.79 4.1 To prove the case against the accused, the prosecution has also produced the following documentary evidence:
Complaint Ex. 31 Panchnama Ex. 32 Order under sec. 42 of NDPS Act Ex. 35 Notice under sec. 50 of NDPS Act Ex. 36 & 37 Arrest Memo Ex. 38 & 39 Seizure memo Ex. 40 & 41 Ravangi Form of FSL Ex.42 & 43 Letter of LCB, Surendranagar Ex. 44 Authorization certificate Ex. 45 Letter of LCB Surendranagar Ex. 46 & 47 Letter of DSP,Surendranagr Ex. 48 FSL Report Ex. 49 Copy of station diary Ex. 51 & 52 Letter of LCB, Surendranagar Ex. 56 Copy of Register of Guest House Ex.73 Copy of station diary Ex. 76 Panchnama Ex. 77
5. Thereafter, after examining the witnesses, further statements of accused under Sec. 313 of CrPC was recorded in which the appellants denied the case of the prosecution.
6. After considering the oral as well as documentary evidence and after hearing the parties, the learned Sessions Judge, vide impugned judgment and order dated 21.9.2002 passed in Special Case No. 2 of 1999 (NDPS), whereby, he has convicted the appellants under sec. 22 and 29 of the NDPS Act and sentenced each of them to suffer R/I for 10 years and to pay a fine of Rs. 1,00,000/- each, and in default of payment of fine, further to suffer R/I for three years.
7. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Sessions Judge, the present appellants accused have filed this appeal.
8. Heard Mr. RM Agrawal learned advocate appearing for the appellants and Mr RC Kodekar learned APP for the respondent-State.
9. Learned advocate for the appellants Mr. RM Agrawal has contended that there is no evidence against the present appellants and the conviction is not in accordance with law. The evidence of Police Officer is not supported by any of the independent witness who have turned hostile and purity of charas is also not proved. The quantity is also not proved and the contraband found from accused no. 2 is only 950 grams which is not a commercial quantity and, therefore, the conviction is required to be quashed and set aside. Lastly, Mr. Agrawal has placed reliance on the decision of the Apex Court in the case of Shantilal vs. State of M.P., reported in (2007) 11 SCC 243 and contended that the order of sentence in default of payment for a period of three years imposed by the trial Court may be reduced to six months.
10. Learned APP Mrs Manishaben L. Shah appearing for the respondent-State has contended that there is voluminous reliable, trustworthy and clinching evidence on record which unequivocally and unerringly proves the guilt of the appellants. Learned APP has also contended that the order of the trial Court is just and proper and there are sufficient evidence to establish the panchnama and the accused has already undergone the sentence of 9 years and 11 months and they have not paid the fine, and therefore, the conviction and sentence imposed upon them by the trial court is required to be confirmed. Learned APP has contended that question of purity was not raised by any of the accused before the trial court and the offence is committed on 23.8.1999 and the amended Act came into force on 2.10.2001 and therefore in view of sec. 44 of the Act, the sentence is not required to be interfered.
11. We have heard the learned advocates appearing for the parties and perused the papers. In our view, the police has followed the procedure and the same is supported by the documentary evidence and, therefore, the trial court has not committed any error while convicting the appellants. The purity of charas was not questioned to any of the witnesses and, therefore, quantity which was contraband and seized was rightly accepted by the trial Court. In that view of the matter, both the contentions raised by the learned advocate appearing for the appellants regarding no evidence and purity of charas, have no substance.
11.1 However, other contention regarding reduction of sentence in default of payment of fine of Rs. 1,00,000/- is required to be accepted in view of the decision of the Apex Court in the case of Shantilal vs. State of M.P., reported in (2007) 11 SCC 243, wherein, the Apex Court has held that an order that in default of payment of fine, the appellant shall undergo rigorous imprisonment for three years is reduced to rigorous imprisonment for six months.
12. In the result, both these appeals are partly allowed. The conviction and sentence imposed upon the appellants ori. Accused vide impugned judgment and order dated 21.9.2002 rendered by the learned Special Judge, Surendranagar in Special Case No. 2 of 1999 (NDPS), convicting the appellants under sec. 22 and 29 of the NDPS Act and sentencing them to suffer R/I for 10 years is hereby confirmed, whereas, sentence imposed in default of payment of fine to suffer R/I for three years, is hereby reduced to six months only.
(K.S.
JHAVERI, J.) (Z.K.SAIYED, J.) mandora/ Top