Judgment A.M. Kapadia, J.—Challenge in these two Criminal Appeals filed under Section 374 of the Code of Criminal Procedure, 1973 (“the Code” for short) is to the correctness of the judgment and order dated 23.12.2005 rendered in Sessions Case No. 23 of 2001 by the learned Special Judge, Fast Track Court No. 2, City Sessions Court, Ahmedabad, by which the Appellant of Criminal Appeal No. 555 of 2006, i.e. Accused No. 1 (“A-1” for short) and the Appellant of Criminal Appeal No. 1040 of 2007, i.e. Accused No. 2 (“A-2” for short), have been convicted for the offence punishable under Section 21 read with Section 29 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act” for short), and both of them are sentenced to suffer RI for 12 years and fine of Rs. 1,50,000/- i.d. RI for 1 year. 2. Briefly stated the prosecution case as disclosed from the FIR and as unfolded during trial, is as under: 2.1 On 13.11.2000 at about nine o’ clock in the morning, PI, State CID Crime (State Narcotic Cell), the complainant, received an information that two persons of Jain community and residents of Bansvada District, Rajasthan, in company of a third person – muslim by religion of village Jhalod, are having in their possession about 1 kg. of brown sugar are coming near Kalupur railway station, Ahmedabad between three to four in the afternoon and are going to sell the contraband article brown sugar near car parking of Kalupur railway station. The information was also to the effect that out of three persons, two persons of Bansvada District will be having bags in their hands and a blue coloured bag would be containing brown sugar and the third person of Jhalod will be in green coloured cloths with a white hat on his head. The two persons from Bansvada would be aged about 35 to 40 years and the third person from Jhalod would be aged about 45 years. PI - Bimal Motilal Rajvanshi, on receipt of the information, reached the Police Bhavan in the office of the State Narcotic Cell and made a note of the information in the register. The complainant also informed about the information in writing to the Superintendent, State Narcotic Cell and also informed that he would be heading to the place concerned for carrying out the raid. The complainant also informed about the information in writing to the Superintendent, State Narcotic Cell and also informed that he would be heading to the place concerned for carrying out the raid. 2.2 It is the further case of the prosecution that the complainant made a note of information in his personal diary as well. Thereafter, he in the company of PSI C.M. Jadav, PSI Rana and other police personnel with necessary equipments like weighing machine, kit, seal etc. left police station at around 12:30 in the afternoon on 13.11.2000. PSI Jadav, one of the member of the raiding party was instructed to arrange two panchas, and accordingly two panchas namely Sanjay Vitthaldas and Gyaneshwar Ramdas were called to act as panchas. The raiding party carried out preliminary panchnama between 13:35 hours to 14:00 hours. The members of the raiding party thereafter reached Kalupur railway station. The members of the raiding party got themselves scattered near the car parking of the railway station. At around 15:20 hours in the afternoon, they spotted one rickshaw coming through a road where there is a hotel namely Moti Mahal and from the said rickshaw three persons alighted. One of those three persons paid the fare to the rickshawala and thereafter rickshawwala left the place and the three persons proceeded towards the car parking. The three persons resembled to the description which was given by the informant in the information. The three persons were apprehended and were taken towards the footpath on the sideways of the road. 2.3 It is the further case of the prosecution that the complainant B.M.Rajvanshi introduced himself and informed the three persons that their search is to be carried out and if they wish they can get themselves searched in presence of a gazetted officer or a Magistrate. The three persons said that they would not like to be searched in presence of a gazetted officer or a Magistrate. The three persons were informed about their right under Section 50 of the NDPS Act to get searched in the presence of a gazetted officer or a Magistrate. They were explained about their statutory right in Hindi. 2.4 It is the further case of the prosecution that the first person to be searched was A-1 - Kesarimal Kanaiyalal Shah from whose possession one gray colour bag was recovered. They were explained about their statutory right in Hindi. 2.4 It is the further case of the prosecution that the first person to be searched was A-1 - Kesarimal Kanaiyalal Shah from whose possession one gray colour bag was recovered. The bag was opened and from the bag one towel, one handkerchief and two small bags of clothes were recovered. One of those bags was opened and it was found containing brown coloured powder. The said powder was in a plastic bag. The powder was smelling of brown sugar. With the testing kit it was examined and it was found that the same was brown sugar. The powder was weighed and the total weight was about 1000 grams. 2.5 It is the further case of the prosecution that the sample of two bags of 5 grams powder were prepared for the purpose of sending it to FSL. Necessary panchnama was drawn and the samples drawn for the purpose of sending to FSL were sealed in presence of panchas. 2.6 It is the further case of the prosecution that search of A-2 - Kantilal Keshavlal and Gulam Mohammad was also carried out by the members of the raiding party, but nothing incriminating was recovered from their possession. From A-2, only one bag was recovered containing tickets of ST Bus, visiting cards and telephone diary, whereas from the A-1 – Kesarimal, over and above the contraband brown sugar, documents like receipt of payment of tariff at Sheth Manilal Mansion were they had stayed, visiting card, telephone diary and other documents were recovered and a separate panchnama was drawn in this regard. 2.7 On the basis of the aforesaid information received by PI – Rajvanshi the raid was successfully carried out and he lodged the complaint which was registered at Gandhinagar Zone Police Station vide CR No. II 21/2000. PI – Rajvanshi thereafter informed the Police Superintendent, State Narcotic Cell about the complaint lodged by him and the Superintendent, in turn, handed over the investigation to PI – J.N.Parmar. 2.8 On completion of investigation, charge sheet was filed against A-1, A-2 and third person namely Gulam Mohammad, in the Court of City Sessions Judge, Ahmedabad where it is registered as Sessions Case No. 23 of 2001. 2.8 On completion of investigation, charge sheet was filed against A-1, A-2 and third person namely Gulam Mohammad, in the Court of City Sessions Judge, Ahmedabad where it is registered as Sessions Case No. 23 of 2001. 2.9 The learned Special Judge, Fast Track Court No. 2, City Sessions Court, Ahmedabad, to whom the case was made over for trial, framed the charge against all the accused persons for the offence punishable under Section 21 read with Section 29 of the NDPS Act. The charge was read over and explained to them. They pleaded innocence and therefore they were put to trial. 2.10 During the pendency of trial, A-3 – Gulam Mohammad died on 23.12.2001, and therefore, the trial against him stood abated. 2.11 To prove the culpability of A-1 and A-2, the prosecution has examined in all 8 witnesses and relied upon their oral testimony, they are as under: PW Name of the Witness Status Exhibit 1 Sanjay Vitthaldas Macwana Panch witness 12 2 Gyaneshwar Ramdas Girdhar Panch witness 12 3 Bimal Motilal Rajvanshi Complainant 26 4 Natubhai Punjabhai Macwana Officer who carried 56 muddamal to FSL PW Name of the Witness Status Exhibit 5 Baldevji Chhanaji Meena Officer who brought 62 back the mudamal from FSL after analysis 6 Uttamkumar Manilal Jadav PSI 73 7 Jogaji Nanji Parmar I.O. 79 8 Mohindersing Rajeram Daiya FSL Officer 88 2.12 In order to bring home the charge levelled against A-1 and A-2, the prosecution has also produced number of documents like complaint, panchnama and FSL report, etc. and relied upon the contents thereof. 2.13 On appraisal of the evidence on record, the learned Special Judge, Fast Track Court No. 2, City Sessions Court, Ahmedabad, held that A-1 was caught red handed with the contraband brown sugar when he was apprehended by the police officer and from his possession 1000 grams of brown sugar was recovered and at that time A-2 was also with him from whom also certain documents were recovered. Both of them came together and alighted from the same rickshaw, and therefore, on the aforesaid finding, the trial Court held that the complicity of both the accused persons in commission of the offence has been duly established, and therefore, they were convicted and sentenced, to which the reference is made in earlier Paragraph of this judgment. Both of them came together and alighted from the same rickshaw, and therefore, on the aforesaid finding, the trial Court held that the complicity of both the accused persons in commission of the offence has been duly established, and therefore, they were convicted and sentenced, to which the reference is made in earlier Paragraph of this judgment. 2.14 It is this order, which is now the subject matter of challenge in these two Criminal Appeals, i.e. Criminal Appeal No. 555 of 2006 filed by A-1 and Criminal Appeal No. 1040 of 2007 filed by A-2. 3. Mr. Rajesh Agarwal, Learned Advocate for A-1 and Mr. J.B. Pardiwala, Learned Advocate for A-2 submitted that they do not challenge the order of conviction on merits. However, they submitted that looking to the quantity of the contraband article brown sugar recovered from A-1, RI of 12 years imposed upon A-1 and A-2 is disproportionate to their guilt and it is not commensurate with the quantity of contraband article recovered from them. Besides this, they have also submitted that there are mitigating circumstances in favour of the A-1 and A-2 and also this is the first conviction recorded against them under the NDPS Act, for imposing minimum sentence of 10 years. They therefore urges that the order of sentence may be suitably modified by reducing the same to the minimum sentence prescribed under the NDPS Act, which according to them is RI of 10 years. They therefore urges to pass appropriate orders in this regard. 4. In support of the aforesaid plea, Mr. Rajesh Agarwal, Learned Advocate for A-1 and Mr. J.B. Pardiwala, Learned Advocate for A-2 have tendered affidavits sworn by their kith and kin. Affidavit filed on behalf of A-1 is sworn by his son Vijaykumar K. Shah. Paragraphs 3 to 7 of the said affidavit are reproduced hereinbelow: “3. I state that my father has been in custody as under trial prisoner and convict from 13.11.2000 and thus he has been in custody for around 9 years and 10 months. Moreover, during trial also he was not granted bail and thus, during this period of around 10 years, our family has completely ruined and all our family members, including myself have come to the stage of starvation and there is no capable member having source of income sufficient. Moreover, during trial also he was not granted bail and thus, during this period of around 10 years, our family has completely ruined and all our family members, including myself have come to the stage of starvation and there is no capable member having source of income sufficient. It is extremely difficult to maintain our family which also consists of my old grandmother who is more than 75 years of age and is suffering from different types of diseases. I further say and submit that my grandfather has also expired and now there is no one to look after my old grandmother. I state that my father was simply a carrier and not a kingpin. It appears out of greed and out of poverty he did it. 4. I say and submit that my mother is also a house wife and she is also not earning member and thus, for want of income, the entire family of the appellant have come to the stage of starvation and if my father is not shown mercy, then, the condition will worsen further. 5. I further state and submit that all our family members are very poor persons and we are also not in a position to pay the fine of such huge amount. Moreover, due to poverty we are also not in a position to pay even any such lesser amount and in the circumstances, my father might have to undergo sentence in default of payment of fine also. I, therefore, humbly request this Hon’ble Court to be kind enough to show mercy towards my father – the appellant herein and towards our family in payment of fine and in default sentence thereof. 6. I further state and submit that all our family members are in a very poor condition and now we are badly in need of the presence of my father for the existence of the family members and if mercy is not shown to my father in the sentence and in payment of fine and also in the sentence in default of payment of fine, then there are all possibilities that out whole family will be ruined and therefore also, this Hon’ble Court be pleased to show mercy towards my father who is appellant in the aforesaidmentioned Criminal Appeal. 7. 7. I further state and submit that we are two brothers but we have got no source of sufficient income and I have one sister who is married but by brother-in-law is also very poor person and therefore, no other members are also in a position to make any arrangement for payment of fine and therefore, in all respects, I humbly request this Hon’ble Court to show mercy to my father the appellant herein and towards our family, to do real, substantial and complete justice to him and our family members.” 5. Similarly, affidavit filed on behalf of A-2 has been sworn by his son - Bhupendrakumar Kantilal Jain. Paragraphs 2 to 9 of the said affidavit are reproduced hereinbelow: “2. I state and submit that my father has practically completed almost 10 years of sentence uptil now. 3. I state and submit that my father is a businessman. My father, before the incident, was engaged in the business of supplying grocery to various Schools under the Scheme called “Baal Vikas Pariyojana” floated by the Government of Rajasthan. 4. My father was born on 4.4.1950. My father, as on today, is aged about 60. 5. I state and submit that past couple of months my father is not keeping well and appears to be in a state of depression. As and when myself and other family members visit him in the Jail Premises, he has exhibited some tendency of having mental depression. 6. I state and submit under the instructions of my father – the accused appellant that the accused appellant is not pressing the Appeal on merits and is earnestly requesting the Hon’ble Court to reduce the sentence to the minimum which has been prescribed i.e. R.I. for 10 years. I state and submit with folded hands that the sentence of 12 years which has been imposed upon by the Trial Court may be reduced to that of 10 years which is the minimum which has been prescribed under the Act. I state and submit that the fine of Rs. 1.50 lacs which has been imposed may also be reduced to Rs. 1.00 lac which is the minimum which has been prescribed under the Act. I state and submit that with the help of close relatives and friends we shall be able to raise the amount to be deposited towards fine. 7. 1.50 lacs which has been imposed may also be reduced to Rs. 1.00 lac which is the minimum which has been prescribed under the Act. I state and submit that with the help of close relatives and friends we shall be able to raise the amount to be deposited towards fine. 7. I state and submit that after the incident which occurred in the year 2000 our whole family has been shattered monetarily as well as socially. My mother is also not keeping well. The incident has even tarnished our social image and reputation in the society. My father has suffered a lot of social humiliation uptil now. 8. I state and submit that even as per the case of the prosecution and the finding recorded by the learned Trial Judge, nothing was recovered from the possession of my father. The contraband article is alleged to have been recovered from the possession of original accused No. 1. 9. I state and submit that having regard to the fact that almost 10 years have elapsed and also having regard to the fact that my father is now aged about 60, I humbly pray that the sentence may be reduced to the minimum which has been prescribed under the Act i.e. 10 years and the amount of fine may be reduced to Rs. 1.00 lac i.e. the minimum which has been prescribed under the Act.” 6. Referring to the aforesaid sworn versions tendered on behalf of A-1 and A-2, it is submitted by Mr. Rajesh Agarwal and Mr. J.B. Pardiwala, learned advocates for the Appellants that minimum sentence of 10 years and fine of Rs. 1 lac and in default of payment of fine, RI for 6 months may be imposed. They therefore urge to pass appropriate order in this regard. 7. Mr. L.B. Dabhi, learned APP for Respondent – State of Gujarat has submitted that no leniency may be shown to A-1 and A-2 since offenders of drug trafficking are menace to the society and they spoil the career of the youth of the society and because of their selling narcotic substance to youth, health of the youth is getting deteriorated and they are rendered of no assistance to the society in future. Therefore no leniency should be shown to A-1 and A-2 so far as awarding the minimum sentence is concerned. He therefore urges to dismiss both the Criminal Appeals. Therefore no leniency should be shown to A-1 and A-2 so far as awarding the minimum sentence is concerned. He therefore urges to dismiss both the Criminal Appeals. 8. We have given our anxious considered thought to the rival submissions made by the learned advocates appearing for the parties with regard to awarding of minimum sentence to A-1 and A-2. 9. In the case of Balwinder Singh vs. Asstt. Commissioner, Customs and Central Excise, (2005) 4 SCC 146, the Supreme Court has narrated the relevant factors to be considered for reduction of sentence for the offence under NDPS Act. In the said case, the accused by convicted under the NDPS Act for the first time and, therefore, the sentence was reduced from RI for 14 years to RI for 10 years. 10. In the case of Shantilal vs. State of M.P., (2008) 1 SCC (Cri), Supreme Court, in Para 31 of the reported decision has held as under: “31. The next submission of the Learned Counsel for the appellant, however, has substance. The term of imprisonment in default of payment of fine is not a sentence. It is a penalty which a person incurs on account of non-payment of fine. The sentence is something which an offender must undergo unless it is set aside or remitted in part or in whole either in appeal or in revision or in other appropriate judicial proceedings or “otherwise”. A term of imprisonment ordered in default of payment of fine stands on a different footing. A person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. He, therefore, can always avoid to undergo imprisonment in default of payment of fine by paying such amount. It, is, therefore, not only the power, but the duty of the Court to keep in view the nature of offence, circumstances under which it was committed, the position of the offender and other relevant considerations before ordering the offender to suffer imprisonment in default of payment of fine.” 11. The principle enunciated by the Supreme Court in above referred to two judgments is squarely applicable to the facts of the instant case. In the instant case, as per the sworn versions tendered on behalf of A-1 and A-2, they have never been convicted under the NDPS Act in the past and this is their first conviction. The principle enunciated by the Supreme Court in above referred to two judgments is squarely applicable to the facts of the instant case. In the instant case, as per the sworn versions tendered on behalf of A-1 and A-2, they have never been convicted under the NDPS Act in the past and this is their first conviction. It is true that for commission of offence under Section 21 of the NDPS Act, minimum sentence is 10 years which may extend to 20 years and shall also be liable to fine which shall not be less than one lac rupees but which may extend to 2 lac rupees. However, normally, in such type of cases, according to Supreme Court, minimum sentence of RI for 10 years and fine of Rs. 1 lac and i.d. RI of 6 months, would meet the ends of justice. 12. In aforesaid view of the matter, we are of the considered opinion that if A-1 and A-2 are sentenced to suffer RI of 10 years and fine of Rs. 1 lac and i.d. RI of 6 months for the offence punishable under Section 21 read with Section 29 of the NDPS Act, the same would serve the ends of justice. 13. Seen in the above context, the sentence imposed on A-1 and A-2 deserves to be modified by allowing this appeal qua sentence only by reducing it to minimum sentence of 10 years. 14. For the foregoing reasons, both the Appeals succeed in part and accordingly, they are partly allowed qua sentence only. 14.1 The impugned judgment and order of conviction dated 23.12.2005 recorded in Sessions Case No. 23 of 2001 by the learned Special Judge, Fast Track Court No. 2, City Sessions Court, Ahmedabad, against both the accused, convicting them for the offence under Section 21 read with Section 29 of the NDPS Act is hereby confirmed and maintained. 14.2 However, while upholding the conviction of both the accused for the offence punishable under Section 21 read with Section 29 of the NDPS Act, the sentence of RI for 12 years and fine of Rs. 1,50,000/-, in default of payment of fine further RI for 1 year is modified and instead both the accused are sentenced to undergo RI for 10 years and fine of Rs. 1,00,000/-, in default of payment of fine, further RI for 6 months. 15. 1,50,000/-, in default of payment of fine further RI for 1 year is modified and instead both the accused are sentenced to undergo RI for 10 years and fine of Rs. 1,00,000/-, in default of payment of fine, further RI for 6 months. 15. Mudamal to be disposed of in terms of the directions contained in the impugned judgment and order. 16. Both the Appeals are disposed of accordingly. P P P P P