JUDGMENT : G.B. Shah, J. 1. This appeal under section 374 of the Code of Criminal Procedure, 1973 filed by the appellants-original accused Nos. 1 and 2 arises out of judgment and order dated 5.10.2011 passed by the learned Special Judge and Additional Sessions Judge, Jamnagar, in Special NDPS Case No. 2 of 2010 whereby they were convicted and sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs. 1,00,000/-, in default, to suffer further rigorous imprisonment for two years for the offence punishable under section 20(B) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as 'the NDPS Act'). 2. Facts, in nutshell, are that the accused were found selling contraband article 'ganja' weighing about 3 kg and 400 gm and therefore, FIR came to be registered as C.R. No. I-86 of 2010 at Jamnagar 'B' Division Police Station for the offence punishable under sections 20(B) and 20(C) of the NDPS Act. In pursuance of the said complaint, investigation started and as there appeared prima facie case against the accused, charge sheet was filed against the accused persons. As the offence was triable exclusively by the Court of Sessions, the learned Magistrate committed the cases to the Court of Sessions. Thereafter charge was framed against the accused which was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried. Hence, the prosecution was asked to prove the guilt against the accused. To prove the case, the prosecution examined ten witnesses and produced and relied on several documentary evidence numbering 27. After filing of closing pursis by the prosecution, further statements of accused under Sec. 313 of Cr.P.C. were recorded wherein they pleaded that false case has been filed against them. On conclusion of trial and upon hearing the learned advocates appearing for the respective parties, impugned judgment and order, as aforesaid in the earlier part of this judgment, was delivered by the trial court giving rise to the present appeal. 3. Heard learned advocate, Mr. Yash Joshi, for the appellants-original accused Nos. 1 and 2 and learned APP, Mr. K.L. Pandya for the respondent-State. 4. Mr. Yash Joshi, learned counsel for the appellants drew attention of this Court on a decision of the Hon'ble Supreme Court in the case of Ghasita Sahu Vs. 3. Heard learned advocate, Mr. Yash Joshi, for the appellants-original accused Nos. 1 and 2 and learned APP, Mr. K.L. Pandya for the respondent-State. 4. Mr. Yash Joshi, learned counsel for the appellants drew attention of this Court on a decision of the Hon'ble Supreme Court in the case of Ghasita Sahu Vs. State of M.P. reported in AIR 2008 SC 1425 wherein sentence imposed on the accused was reduced from five years' RI to the period already undergone by the accused for possession of 17 kg and 750 gm of contraband article 'ganja'. He further drew attention of this Court on the case of Fakir Imamsha Davalsha Vs. State of Gujarat reported in 2011 JX (Guj) 955 wherein sentence imposed on the accused was reduced from 10 years' RI to five years' RI for possession of contraband article 'ganja' weighing 9 kg and 140 gm. He also drew attention of this Court on the case of Ashokkumar Balchand Umlani Vs. State of Gujarat reported in 2008 JX (Guj) 787 wherein sentence imposed on the accused was reduced from seven years' RI to four years' RI for possession of contraband article 'ganja' weighing 13 kg and 840 gm. Relying on the aforesaid decisions, he submitted that even if the conviction is to be upheld, the trend of the court evident from the above mentioned authorities is to punish the accused in proportion to the quantity of contraband article 'ganja' seized from the accused. He further submitted that even the legislative scheme emphasizes on the sentence proportionate to the quantity seized and in the instant case, 3 kg and 400 gm of contraband article 'ganja' was seized from the appellants as against the commercial quantity of 20 kg for which, minimum sentence is 10 years. He then submitted that for possession of such quantity i.e. 3 kg and 400 gm, a disproportionate sentence of 10 years was imposed by the trial court. He further submitted that both the appellants have already undergone more than four years of imprisonment. He also submitted that the appellants have no antecedents and therefore, the appellants be awarded punishment in proportion to the quantity of contraband article 'ganja' seized from them. 5. Mr. He further submitted that both the appellants have already undergone more than four years of imprisonment. He also submitted that the appellants have no antecedents and therefore, the appellants be awarded punishment in proportion to the quantity of contraband article 'ganja' seized from them. 5. Mr. Pandya, learned APP, however, submitted that the appellants were convicted for the serious offence under the NDPS Act for possessing contraband article 'ganja' which, if sold in the market, would seriously affect the health of the public at large and hence, no leniency be shown towards the appellants. 6. The main submission canvassed by the learned advocates for the parties pertains to the quantum of punishment awarded to the appellants for the offence under section 20(B) of the NDPS Act. It is to be noted that the appellants were sentenced to undergo ten years' RI and to pay fine of Rs. 1,00,000/-, in default, to undergo further RI for two years. In view of the fact that the learned advocates for the parties restricted their submissions on the quantum of sentence, this Court would not like to reproduce or discuss the entire evidence which are on record as the same remained unchallenged. This Court is also in complete agreement with the reasons adopted by and the conclusions arrived at by the learned trial court in the impugned judgment so far as the conviction of the present appellants is concerned. However, the question to be considered is as to whether the appellants, in the given facts and circumstances of the case, are entitled to reduction of sentence which has been awarded by the trial court or not. 6.1 In this connection, reference will have to be made to the decision rendered by the Hon'ble Supreme Court in an identical situation in the case of Ghasita Sahu (supra) relied on by the learned advocate for the appellants wherein sentence imposed on the accused, for possession of contraband article 'ganja' weighing 17 kg and 750 gm, was reduced from five years to the period of almost four years already undergone by the accused. It has been held by the Hon'ble Supreme Court in paragraphs 7 and 8 as under: "7. In the first place, there is no question in this case, of any such right of the accused. It has been held by the Hon'ble Supreme Court in paragraphs 7 and 8 as under: "7. In the first place, there is no question in this case, of any such right of the accused. Section 51 of the Act specifically provides that the provisions of Criminal Procedure Code shall apply in so far as they are inconsistent to the provisions of the Act to all warrants, arrest, searches and seizures made under this Act. The right of the search being taken only in presence of a Magistrate or a Gazetted Officer is restricted where the search is to be taken of a "person" of the accused. In this case the search was of a house and, therefore, all that the Investigating Officer had to follow was the conditions under Section 42 of the Act read with Section 100, Cr.P.C. Therefore, the argument that the accused had any right in respect of the aforementioned search and that right has been breached is wholly incorrect. The law is now settled that this condition under Section 50 applies only where the search is of a "person" of accused [See State of H.P. v. Pawan Kumar, (2005) 4 SCC 350 ]. In this case the search was not of the person but of his house. 8. However, it is pointed out by the learned counsel that the quantity of Ganja was less than the commercial quantity though more than the small quantity and that the accused has all through been behind the bars after his arrest and he has almost completed four years in Jail. Considering that the accused is a middle-aged man and comes from the poor background as claimed by the counsel, we would chose to modify his punishment of five years to the sentence already undergone. We also reduce the amount of fine from Rs. 20,000/- to Rs. 10,000/- and in default of payment of fine the accused would undergo further period of Rigorous Imprisonment for six months. Barring this modification, the appeal is dismissed." 6.2 Similarly, a Division Bench of this Court in Fakir Imamsha Davalsha (supra) relied on by the learned advocate for the appellants has held in paragraph 7 as under: "7. Since the appeal is not pressed on the question of conviction, we do not deem it necessary to re-examine and re-appreciate the oral and documentary evidence adduced by the prosecution before the trial Court. Since the appeal is not pressed on the question of conviction, we do not deem it necessary to re-examine and re-appreciate the oral and documentary evidence adduced by the prosecution before the trial Court. The appeal is only pressed on the count of sentence. There is no dispute that as per Sr. No. 55 regarding the 'Ganja', contained in table annexed to the NDPS Act, the quantity of 'Ganja' upto 1000 gms. is considered to be small quantity and quantity of 20 kgs. and more is considered to be commercial quantity. In the instant case, as established by the prosecution, the contraband substance 'Ganja', which came to be seized from the accused was weighing 9 kgs. and 140 gms., meaning thereby, the quantity was greater than small quantity and lesser than commercial quantity. Now, as per Section 20(b)(ii)(B), when the quantity involved is lesser than commercial quantity, but greater than small quantity, the punishment prescribed is RI for a term, which may extend to 10 years and with fine that may extend to Rs. 1 Lac. In the impugned judgment, the trial Court while fixing the quantum of sentence, considered the possession of 'Ganja' weighing 9 kgs. and 140 gms. as commercial quantity. As stated above, so far as 'Ganja' is concerned, the commercial quantity is 20 kgs. And more. Thus, it is apparent that the trial Court committed serious error in considering the quantity of 'Ganja' weighing 9 kgs. and 140 gms. as commercial quantity. On such premise, the trial Court, therefore, awarded the sentence of RI for 10 years and fine of Rs. 1 Lac. We are, therefore, of the considered opinion that the trial Court committed serious error while determining the quantum of sentence." 6.3 Likewise, in Ashokkumar Balchand Umlani (supra) relied on by the learned advocate for the appellants, it has been held by this Court from paragraphs 6 to 11 as under: "6. Central question which both the learned advocates debated before me pertains to the quantum of punishment awarded to the appellant for the offence under section 20(b)(ii)(B) of the NDPS Act. As noted, the learned Judge sentenced the appellant to 7 years of rigorous imprisonment and also imposed fine of Rs. 50,000/- and in default of payment of fine, he was directed to undergo further RI of three years. 7. As noted, the learned Judge sentenced the appellant to 7 years of rigorous imprisonment and also imposed fine of Rs. 50,000/- and in default of payment of fine, he was directed to undergo further RI of three years. 7. In a decision dated 4.4.2008 passed in Criminal Appeal No. 1229 of 2004, this Court had an occasion to notice several decisions on the question of sentence in narcotic cases and made following observations:- "5. Mr. Agrawal has drawn my attention to the decision of the Apex Court in the case of Balwinder Singh vs. Asstt. Commissioner, Customs and Central Excise reported in 2005 (2) EFR 420 : ( AIR 2005 SC 2917 ) wherein the accused was found in possession of 175 kgs of Heroin and 39 kgs of Opium. However, considering that the accused was a first time offender, sentence of 14 years of imprisonment imposed by the Courts below was reduced to minimum prescribed under the Act that of 10 years. 5.1 My attention is also drawn to the decision of the Division Bench of this Court dated 09.01.2008 in the case of rendered in Criminal Appeal No. 904 of 2000 wherein the accused were found in possession of Charas weighing nearly 9.5 Kgs. The Division Bench reduced the punishment from that of rigorous imprisonment of 15 years to the minimum of 10 years as prescribed under the Act. 5.2 Similarly in a judgment dated 05.02.2008 rendered by the Division Bench of this Court in Criminal Appeal No. 954 of 2003 with Criminal Appeal No. 2277 of 2004, the accused were found to be in possession of Charas of nearly 6 Kgs. The Division Bench reduced the sentence from rigorous imprisonment of 12 years to the minimum of 10 years prescribed. 5.3 In the case of Ghasita Sahu vs. State of Madhya Pradesh reported in 2008 AIR AIAR (Criminal) 277, the Apex Court considering the poor background of the accused reduced the punishment from 5 years to one already undergone (about 4 years as noticed by the Apex Court) and also reduced the fine from Rs. 20,000/- to Rs. 10,000/- and imposed the default sentence of six months. It was a case wherein the accused was found carrying 17 Kgs of Ganja. It may be noted that commercial quantity for Ganja is prescribed as 20 Kgs. 20,000/- to Rs. 10,000/- and imposed the default sentence of six months. It was a case wherein the accused was found carrying 17 Kgs of Ganja. It may be noted that commercial quantity for Ganja is prescribed as 20 Kgs. 5.4 In the case of Shanti Lal vs. State of M.P. reported in 2007 (2) EFR 702, the Apex Court in para 36 observed that the accused appellant is a very poor person and it was his first offence. It is further observed that because of poverty he could not pay the heavy amount of fine of Rs. 1 lakh and that if he is ordered to remain in jail even after the period of substantive sentence is over only because of his inability to pay fine, serious prejudice will be caused not only to him but also to his family members who are innocent. With these observations the Apex Court though found itself unable to reduce the fine below the minimum of Rs. 1 lakh prescribed by the legislature directed that in default of payment of the said fine, the accused appellant shall serve sentence of six months." "7. Having thus heard learned advocates appearing for the respective parties and having taken into account relevant aspects of the matter, I find that imposition of the sentence of 7 years and fine of Rs. 75,000/- in the facts of this case are harsh. 8. As already stated the appellant was found in possession of 462.916 gms of charas. Small quantity of charas is defined as 100 gms and commercial quantity is 1 Kg. The appellant was thus carrying charas more than small quantity but substantially lesser than commercial quantity. In that view of the matter, and also considering the fact that the appellant is a first time offender and has no other criminal antecedents, the sentence of 7 years of rigorous imprisonment needs to be reduced. So also imposition of fine of Rs. 75,000/- against the maximum permissible fine of Rs. 1 lakh in facts of the case is high. 9. So also imposition of fine of Rs. 75,000/- against the maximum permissible fine of Rs. 1 lakh in facts of the case is high. 9. Taking into account the various decisions noted hereinabove and also taking into account special facts of the case including the facts that the appellant is stated to be a very poor person, this is his first involvement in a criminal case and the quantity of the drug found in his possession I find that the ends of justice will be met if the sentence is reduced to rigorous imprisonment for 4 years and imposition of fine of Rs. 15,000/-. In default of payment of fine he shall serve sentence of six months of simple imprisonment." 8. In the present case also, I find that against a small quantity of 1 k.g. prescribed for ganja and 20 k.g. for commercial quantity, the appellant was found in possession of 13.840 kgs of ganja. It is not in dispute that he has no criminal antecedents. No other criminal case has been lodged against him. His jail record further suggests that he has already been in jail for a period of more than 4 years and 8 months. 9. Learned advocate Shri Agrawal further submitted that the appellant is an extremely poor person and he is unable to pay the hefty fine of Rs. 50,000/- imposed by the learned Judge. 10. Considering all these aspects of the matter, I find that the imposition of sentence of 7 years of RI and fine of Rs. 50,000/- need to be reduced. 11. In the result, the appeal is disposed of with the following directions: 1. Conviction under section 20(b)(ii)(B) of the NDPS Act is upheld. 2. Sentence imposed on the appellant for the said offence is however reduced to four years of R.I. and fine of Rs. 10,000/- (Rupees ten thousand). In case of default of payment of fine, he shall serve further sentence of six months of R.I. 3. Conviction and sentence under section 23 of the NDPS Act are set aside. 4. If the appellant has already served out the sentence including the default sentence or paid fine, he shall be set free if not required in any other criminal case. 5. With the above directions, the appeal is disposed of." 7. Conviction and sentence under section 23 of the NDPS Act are set aside. 4. If the appellant has already served out the sentence including the default sentence or paid fine, he shall be set free if not required in any other criminal case. 5. With the above directions, the appeal is disposed of." 7. It is to be noted that in the present case, the appellants were found in possession of 3 kg and 400 gm of contraband article 'ganja'. Maximum punishment prescribed for small quantity of 1000 grams of ganja is six months while for possession of commercial quantity of 20 kg or more, punishment prescribed is minimum of 10 years of rigorous imprisonment and fine. Thus, for possession of small and commercial quantity, punishment prescribed is a sentence extending to ten years and fine. However, in case of ganja, the sentence would alter in proportion to the quantity of ganja seized. Thus, there is huge difference between possession of 3 kg and 400 gm of ganja and 20 kg and therefore, in tune with the legislative intent, principle of proportionality between the small and commercial quantity should have been considered by the trial court while imposing sentence. I would be failing in my duty if principal of proportionality is not followed in deserving case. In the case on hand, the appellants have undergone more than four years of sentence and they have no antecedents. As per the jail record, behavior of the accused is good. They are also having responsibilities to maintain their family. As they are in jail, entire family is in a helpless condition and passing through a difficult period to survive a living. In view of the above, this Court is of the opinion that interest of justice will be met if the sentence imposed on the applicant is reduced to the period already undergone by the appellants. 8. The appeal is accordingly partly allowed. While confirming the conviction, the sentence of ten years' RI imposed on the appellants-accused Nos. 1 and 2 is ordered to be reduced to the period already undergone by them and fine of Rs. 1,00,000/- (Rupees One Lac only) imposed on them is reduced to Rs. 10,000/- (Rupees Ten Thousand only) each and in default of payment of fine, they shall undergo further RI for six months. 1 and 2 is ordered to be reduced to the period already undergone by them and fine of Rs. 1,00,000/- (Rupees One Lac only) imposed on them is reduced to Rs. 10,000/- (Rupees Ten Thousand only) each and in default of payment of fine, they shall undergo further RI for six months. The appellants are reported to be on bail and hence, their bail bond shall stand cancelled. The impugned judgment and order dated 5.10.2011 passed by the learned Special Judge and Additional Sessions Judge, Jamnagar, in Special NDPS Case No. 2 of 2010 is accordingly modified to the aforesaid extent. Remaining part of the impugned judgment is unaltered. Record and proceedings are ordered to be sent back to the court below forthwith.