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2015 DIGILAW 657 (GUJ)

State of Gujarat v. Siddikbhai Iqbalbhai Lakhani

2015-06-30

S.G.SHAH

body2015
JUDGMENT : S.G. Shah, J. Heard Ld. APP Ms. Chandarana for the appellant - State and Mr. Haresh N Joshi, Ld. Advocate for the respondent. 2. The State has filed this appeal for enhancement of the sentence, since by impugned judgment and order dated 1/3/2006 in Criminal Case No. 4913/2005 the Chief Judicial Magistrate, Bhavnagar, has while accepting the plea bargaining of the respondent - accused, who pleaded guilty, sentenced him to pay Rs.9,000/- as fine with imprisonment till rising of the Court under section 27 of the Drugs and Cosmetics Act, 1940 [hereinafter referred to as the Act] and fine of Rs.1,000/- under section 28[A] of the Act for committing breach of sections 18[c], 18[A][1], 18[A][6] and 18[A] of the Act. 3. It is submitted by Ld. APP that plea bargaining is not permissible in our jurisprudence and that there is direct decision on such issue rendered by the Hon'ble Supreme Court in the case of State of U.P. v. Chandrika reported in AIR 2000 SC 164 . Whereas the respondent has filed an affidavit-in-reply submitting that he was not aware about the consequences of plea bargaining and relied upon the observation in the same judgment of the Hon'ble Supreme Court, submitting that all matters are required to be decided on its merits and even if accused confesses his guilt, the approach of the Court should be to find out whether the accused is guilty or not. However, it is clear and obvious that in such judgment, the Hon'ble Supreme Court has specifically stated that mere acceptance or admission of the guilt should not be ground for reduction of sentence nor can the accused bargain with Court that since he is pleading guilty, sentence be reduced. 4. In the background of such settled legal position, if we peruse the provisions of the Act, the sentence provided under section 27 is imprisonment for a term which shall not be less than one year but it may extend to two years and with fine, at the relevant time in the year 2005. Whereas under section 28-A of the Act, prescribed punishment is imprisonment for a term which may extend to one year or with fine which may extend to Rs.1,000/- or with both, at the relevant time. Whereas under section 28-A of the Act, prescribed punishment is imprisonment for a term which may extend to one year or with fine which may extend to Rs.1,000/- or with both, at the relevant time. Such punishment has been modified with effect from 10/8/2009 whereby the amount of fine has been increased in both the sections and thereby now fine to be imposed shall not be less than Rs.20,000/- under both the sections. However, we are not concerned at present with such amendment as the offence and charge-sheet is of the year 2005. 5. However, at present we are concerned with proviso to section 27 which makes it clear that the Court may for any adequate and special reasons to be recorded in the judgment, impose sentence of imprisonment for a term of less than one year. The impugned judgment shows that the trial Court has accepted the plea bargaining and it seems that because of admission of guilt by the respondent - accused, imposed lesser punishment than prescribed under the Act i.e., only till rising of the Court and not one years imprisonment under section 27 of the Act. So far as fine is concerned, it is within the purview of the Court and, therefore, there is no issue. However, so far as imprisonment is concerned, the trial Court has erred on two counts, that the trial Court has not heard the respondent - accused before confirming punishment and it has failed to assign reasons for reducing the imprisonment from one year to one day. 6. Therefore, Ld. APP is right in submitting that in view of such fact, though the respondent is seeking to dismiss the appeal by filing an affidavit, explaining the reason that why it should not be increased, it would be appropriate to remand the matter back to the trial Court to extend an opportunity of hearing to the respondent and to pass appropriate order in accordance with law. 7. There is substance in such submission. Hence, the appeal is partly allowed. The impugned judgment and order is hereby quashed and set aside. However, the matter is remanded to the trial Court for deciding it afresh on the point of conviction in light of the discussion and observation made herein-above. R & P be sent back to the concerned trial Court forthwith.