THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.639 of 2008 17-10-2014 BETWEEN:
Tamalampudi Srinivasa Rao @ Satish …..Appellant/accused AND The State, rep. by the Inspector of Police, Maredumilli Circle, East Godavari, And another.
…..Respondent THIS COURT MADE THE FOLLOWING JUDGMENT:
THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.639 of 2008 JUDGMENT:
The Criminal Appeal is preferred by the appellant/accused challenging the Judgment, dated 12.05.2008, in NDPS SC No.6 of 2006 passed by the Court of the Special Sessions Judge for trial of cases under the Narcotic Drugs and Psychotropic Substances Act (I Additional Sessions Judge), East Godavari at Rajahmundry, whereby the learned Judge found the appellant/accused guilty for the offence under Section 8(c) read with Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentenced him 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 one year.
The case of the prosecution is as follows:-
That on 27.03.2006, when P.W.3, Inspector of Police, along with P.W.2, Sub Inspector of Police and other staff, were on checking duty on the main road of Villarthi, found the appellant/accused coming on Hero Honda Motorcycle with a bag tied to the backside of the motorcycle and that on seeing police, he tried to escape, but the Police apprehended him. On suspicion, they made enquiries and then he disclosed his identity and confessed that he was carrying ganja. P.W.3, in the presence of mediators, searched the bag and found it containing ganja, weighed as 10 kgs. Therefore, he seized the contraband. Sample of ganja was sent for chemical examination and after receipt of the chemical examination report, the police filed charge sheet against the appellant/accused under Section 8(c) read with Section 20(b)(ii) of the NDPS Act.
To prove the guilt of the accused, P.Ws.1 to 3 were examined and Exs.P.1 to P.6 and M.Os.1 and 2 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) 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 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 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) 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 fine amount of Rs.1,00,000/- (Rupees one lakh only) as imposed by the Court below is modified and reduced to Rs.10,000/- (Rupees ten thousand only), in default, to suffer simple imprisonment for six months.
The Criminal Appeal is accordingly partly allowed. Consequently, the miscellaneous petitions, if any pending in this appeal, shall stand closed.
JUSTICE RAJA ELANGO 17.10.2014 pln