JUDGMENT : M.R. SHAH, J. 1. Present is a glaring example to show that in the haste of the disposal of the trial, learned Special Court under the NDPS Act bypassing all the procedure which is required to be followed while conducting the trial has convicted the original accused for the offence under Section 20(A)(i) of the NDPS Act and that too without affording right of fair trial to the accused. 2. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned 3rd Additional Special Judge, Sabarkantha at Modasa dated 21.12.2013 passed in Special NDPS Case No. 2 of 2013, by which, the learned Special Court while convicting the original accused for the offence under Section 20(A)(i) of the NDPS Act has imposed the sentence of one year RI with fine of Rs. 10,000/-, in default to undergo further three month SI, the State has preferred present appeal under Section 377 of the Code of Criminal Procedure for enhancement of the sentence. 3. The facts and chronology events leading to the present appeal in nutshell are as under: 3.1. A complaint was filed against the original accused for the offence under Section 20 (A)(i)(ii)(c) of the NDPS Act alleging inter alia that in the possession of the accused 389.86 KG worth Rs. 1,95,805/- was found from the agriculture field and it was alleged that the accused has committed the aforesaid offence. That the complaint was investigated by Shri S.P. Kahar, Circle Police Inspector, Modasa. It appears from the charge-sheet paper and charge-sheet during the course of investigation, the Investigating Officer collected the relevant material and also prepared the panchnama of the agriculture field from where the aforesaid Ganja was found. He sent the mudamal articles to the FSL also. After conclusion of the investigation he filed the charge-sheet against the accused before the Sessions Court Sabarkantha at Himatnagar on 23.01.2013. From the charge-sheet, it appears that in the charge-sheet the Investigating Officer cited as many as 30 witnesses. He sent the mudamal articles to the FSL also. After conclusion of the investigation he filed the charge-sheet against the accused before the Sessions Court Sabarkantha at Himatnagar on 23.01.2013. From the charge-sheet, it appears that in the charge-sheet the Investigating Officer cited as many as 30 witnesses. From the record, it appears that on the summons is being served, the accused appeared before the learned Special Court through his advocate and submitted application Exh.22 under Sections 227 & 228 of the Code of Criminal Procedure submitting that from the allegation in the complaint and even as the case of the prosecution case would not fall under Section 20(A) (i)(ii)(c) of the NDPS Act, for which, charge-sheet has been filed against him and therefore, he may be discharged for the said offence. It was also submitted that at the most the case would fall under Section 20(A()(i) of the NDPS Act and therefore, the charge may be framed accordingly. That the said application given on 19.07.2013. That the learned Special Judge by order dated 08.08.2013 passed below Exh,.22 allowed the said application and directed to frame charged against the accused under Section 20(A) (i) of the NDPS Act. Consequently, the learned Special Judge framed the charge against the accused below Exh.24 for the offence under Section 20(A)(i) of the NDPS Act on 08.08.2013. It appears that on 08.08.2013 itself the plea of the accused was recorded below Exh.25 wherein the accused pleaded not guilty and stated that he may be tried. That thereafter, the accused came to be tried by the learned Special Judge for the aforesaid offence and trial against him proceeded further. From the record, it appears that the prosecution submitted the list of documents relied upon by the prosecution by submitting the pursis at Exh.27 which was given on 3.9.2013 in which prosecution proposed to rely upon as many as 18 documentary evidence. It appears from the record and even from the Rojkam that thereafter the prosecution examined the Investigating Officer Chaganbhai Khetabhai Babariya at Exh.30 on 20.12.2013. During the course of his deposition, the prosecution brought on record the following documentary evidence only. Sr.No. Particulars Exh.No. 1. Arrest warrant issued by the learned JMFC, Bayad. 31 2. Arrest warrant of the accused 32 3. Seizer memo of the recovery of Mudamal Ganja from the three agriculture field signed by the accused and panchas 33 4. During the course of his deposition, the prosecution brought on record the following documentary evidence only. Sr.No. Particulars Exh.No. 1. Arrest warrant issued by the learned JMFC, Bayad. 31 2. Arrest warrant of the accused 32 3. Seizer memo of the recovery of Mudamal Ganja from the three agriculture field signed by the accused and panchas 33 4. Yadi sent to the JMFC, Bayad 34 5. Complaint 35 6. Report of F.S.L. 36 3.2. From the record, it appears that thereafter no further evidence has been led by the prosecution. It appears that accused submitted the application Exh.37, by which, it was submitted that as he is aged about 75 years and if he remain in jail for longer period it is likely to adverse affect his health and he is very poor agriculturist, he pleaded guilty. It is required to be noted that the said application Exh. 37 is dated 20.12.2013. It is also required to be noted at this stage that thereafter and even after prosecution examined PW No.1, the prosecution had not led any evidence though in the charge-sheet as observed herein above, as many as 30 Prosecution witnesses were cited as witnesses and even in the list produced at Exh.27 as many as 18 documents were sought to be relied upon. From the record, it appears that even thereafter neither any closing pursis was submitted by the prosecution nor any application was submitted by the Public Prosecutor to drop the witness named in the charge-sheet. It also emerges from the record that further statement of the accused was recorded under Section 313 of the Code of Criminal Procedure on 21.12.2013 wherein accused denied having committed any offence. At this stage, it is required to be noted that even further statement of the accused under Section 313 of the Code of Criminal Procedure having denying that he has committed any offence and a false case has been filed against him was even after pursis given by the accused at Exh.37 pleading guilty. At this stage, it is required to be noted that even further statement of the accused under Section 313 of the Code of Criminal Procedure having denying that he has committed any offence and a false case has been filed against him was even after pursis given by the accused at Exh.37 pleading guilty. That thereafter, by impugned judgment and order and solely relying upon and considering application Exh.37 signed by the accused wherein he pleaded guilty and without even proving any case further by the prosecution by leading cogent evidence, by impugned judgment and order the learned Special Court has convicted the accused for the offence under Section 20(A)(i) of the NDPS Act and has imposed the sentence of one year RI with fine of Rs. 10,000/-, in default to undergo further three month SI. At this stage, it is required to be noted that when the learned Judge passed the impugned order imposing the sentence of one year RI on 20.11.2013, the accused had already undergone the sentence of one year and 14 days. Meaning thereby, the learned Special Judge instead of passing the order of sentence already undergone, imposed the sentence of one year RI i.e. imposing the sentence already undergone. 3.3. Feeling aggrieved and dissatisfied with the impugned judgment and order in so far as imposing the sentence of only one year RI with fine of Rs. 10,000/- for the offence under Section 20(A)(i) of the NDPS Act, the State has preferred the present Criminal Appeal for enhancement of the sentence. 4. Shri L.B. Dabhi, learned Additional Public Prosecutor has appeared on behalf of the State has vehemently submitted that in the facts and circumstance of the case, more particularly, when a commercial quantity of Ganja was recovered from the accused from his agricultural field and when he pleaded guilty and thereby the learned Special Judge convicted the original accused for the offence under Section 20(A)(i) of the NDPS Act, the sentence imposed by the learned Special Judge of one year RI cannot be said to be adequate and/or sufficient and/or commensurate with the gravity of the offence. 4.1. It is further submitted that as such the learned Special Court has not properly appreciated the fact that the offence NDPC is against the society at large and therefore, no lenient ought to have been taken by the learned Special Judge. 4.1. It is further submitted that as such the learned Special Court has not properly appreciated the fact that the offence NDPC is against the society at large and therefore, no lenient ought to have been taken by the learned Special Judge. Therefore, it is requested to allow the present appeal and enhance the sentence imposed by the learned Special Judge and to imposed maximum sentence upon the accused, provided under the Act i.e. 10 years RI. 5. Present appeal is vehemently opposed by Shri Mrudul Barot, learned advocate for the original accused. 5.1. It is further submitted by Shri Barot, learned advocate for the original accused that as such in the facts and circumstance of the case, the learned Special Judge has not committed any error in imposing the sentence of one year RI with fine of Rs.10,000/- and in default to undergo further three months R.I. 5.2. It is submitted that as such and from the pursis given by the accused given below Exh.37 and the fact that when the learned Single Judge passed the impugned order the accused had already undergone the sentence of one year and 14 days and thereafter when the learned Special Judge on the basis pleading guilty pleaded by the accused by submitting the pursis at Exh.37, had imposed sentence of one year RI, it can be said to be a case of plea bargaining and therefore, the same is not required to be interfered with by this Court. It is submitted that the contents of the application Exh.37 are self explanatory for the aforesaid. 5.3. In the alternative, Shri Barot, learned advocate for the original accused has requested to remand the matter to the learned Special Judge for afresh trial. It is submitted that except examining the Investigating Officer PW No. 1 and producing on record few documentary evidences, no other oral and/or documentary evidence have been brought on record by the prosecution. It is submitted that as such on the basis of the deposition of PW No.1 and documents which are produced on record through his deposition, it cannot be said that the prosecution has been successful in proving the case against the accused by leading the cogent evidence. It is submitted that as such on the basis of the deposition of PW No.1 and documents which are produced on record through his deposition, it cannot be said that the prosecution has been successful in proving the case against the accused by leading the cogent evidence. It is submitted that in the present case as such learned Special Judge has not followed any procedure, which was required to be followed by him while conducting the trial from the stage of Section 209 onwards. 5.4. It is further submitted that even prosecution has not followed the procedure which was required to be followed at the time of trial and while proving the case against the accused. It is submitted that though there were 30 persons cited as witnesses in the charge-sheet and in the pursis producing the documents at Exh. 27 number of documents were sought to be produced, except PW No.1 and few documents which are referred to herein above (which cannot be said to be sufficient to prove the case against the accused), the prosecution has not led any other evidence either oral or documentary. It is submitted that even nothing is on record that any dropping pursis was given by the public prosecutor to drop the witnesses mentioned in the charge-sheet nor any closing pursis was submitted by the prosecution declaring that the prosecution has closed the evidence. 5.5. It is further submitted that therefore, the accused has been denied a fair trial which has resulted into miscarriage of justice. It is further submitted by Shri Barot, learned advocate for the original accused that in the present case even at the time of framing charge, the accused pleaded not guilty on 8.8.2013. It is submitted that the PW No.1 was examined on 20.12.2013 and for the reasons stated in the application Exh.37 the accused submitted the pursis pleading guilty and to pass appropriate order of punishment on 20.12.2013. However, in further statement which was recorded under Section 313 which was recorded on 21.12.2013, which was in fact after the pursis Exh.37, in fact the accused denied having committed any offence. However, in further statement which was recorded under Section 313 which was recorded on 21.12.2013, which was in fact after the pursis Exh.37, in fact the accused denied having committed any offence. Despite the above, by impugned judgment and order the learned Special Judge has solely on the basis of pursis at Exh.37 and without even discussing any evidence on record has held the accused guilty for the offence under Section 20(A)(i) of the NDPS Act, which has resulted into miscarriage of justice. It is submitted that therefore, this is a fit case to remand the matter and for retrial of the case. Making above submissions, it is requested to pass appropriate order. 6.0. Heard the learned advocates for the respective parties at length. We have perused the impugned judgment and order passed by the learned Special Judge convicting the original accused for the offence under Section 20(A)(i) of the NDPS Act and sentenced the original accused to undergo one year RI with fine of Rs.10,000/- and in default to undergo further three month SI for the offence under Section 20(A)(i) of the NDPS Act. It cannot be disputed that if the offence against the accused for the offence under Section 20(A)(i) of the NDPS is proved the punishment is upto 10 years RI. In the present case, as narrated herein above, the accused had already undergone the sentence of one year and 14 days when the learned Judge passed the impugned judgment and order and thereafter on the basis of pursis given by the accused at Exh.37 pleading guilty for the reasons stated in the said application, the learned Special Judge has imposed the sentence of only one year RI meaning thereby virtually the learned Judge has imposed the sentence already undergone, though not specifically so stated. Therefore, from the aforesaid, it appears that it seem to be a case of plea bargaining. 6.1. Be that as it may, even the manner in which, the learned Special Judge has conducted the trial and has passed the impugned judgment and order, is highly deprecated and cannot be sustained. From the chronology of events narrated herein above, it can be said that the accused has been denied the fair trial. 6.2. From the impugned judgment and order, it appears that the conviction is passed solely on the pursis given by the accused at Exh.37. From the chronology of events narrated herein above, it can be said that the accused has been denied the fair trial. 6.2. From the impugned judgment and order, it appears that the conviction is passed solely on the pursis given by the accused at Exh.37. The learned Judge has not discussed any evidence on record already led. At this stage, it is required to be noted that even except examining PW No.1 – Investigating Officer and producing the few documents which are referred to herein above, no further evidence has been led by the prosecution, oral or documentary to prove the case against the accused. Therefore, as such without leading any other cogent evidence and proving the case against the accused, the accused could not have been guilty solely on the basis of the his pursis at Exh.37, which was as such given after the accused pleaded not guilty at the time of framing of charge. At this stage, it is required to be noted that once the plea of the accused is recorded at the time of framing of the charge and the accused pleaded not guilty, in that case the trial is required to be proceeded against the accused and the prosecution is required to lead the evidence to prove the case against the accused. After the evidence is led by the prosecution, the accused is required to be given opportunity as provided under Section 313 of the Code of Criminal Procedure to explain incriminating material brought on record by the prosecution against the accused. At that stage, even the accused is also required to be given an opportunity to bring on record his defence witness and/or any other material upon which he relying upon it he so wishes. In the present case, all the procedure which was required to be followed by the learned Special Judge and the prosecution has been given go bye. It appears that the learned Special Judge seem to be in haste in disposing of the trial on the basis of the pursis given at Exh.37. The manner and method adopted by the learned Judge while concluding the trial in the present case is highly deprecated and cannot be sustained. 7. It appears that the learned Special Judge seem to be in haste in disposing of the trial on the basis of the pursis given at Exh.37. The manner and method adopted by the learned Judge while concluding the trial in the present case is highly deprecated and cannot be sustained. 7. One another glaring thing which is required to be considered is that though the impugned judgment and order passed by the learned Special Judge is on the pursis submitted by the accused at Exh.37 pleading guilty, it is required to be noted that the said application was given on 20.12.2013. However, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded on the next day i.e. on 21.12.2013 wherein the accused as such denied having committed any offence and thereafter on the very day i.e. 21.12.2013 the learned Judge has convicted the original accused for the offence under Section 20(A)(i) of the NDPS solely on the basis of his confession/pleading guilty by submitting the pursis at Exh.37. Once in further statement under Section 313 of the Code of Criminal Procedure when the accused stated that he has not committed any offence in that cases, the learned Judge ought not to have convicted the original accused pleading guilty while submitting pursis at Exh.37, which was on a previous day. Under the circumstance also, impugned judgment and order passed by the learned Special Judge cannot be sustained and the matter is required to be remanded for retrial. 7.1. Even otherwise, as noted herein above, except examining PW No.1 and producing on record the aforesaid documentary evidence as per pursis Exh. 27 the prosecution has not led any other evidence. The prosecution has not examined any other witnesses except PW No.1Investigating Officer. By leading the cogent evidence, the prosecution was required to prove the case against the accused beyond doubt. Once the accused pleads not guilty at the time of framing of the charge and thereafter the charge is framed against the accused, the prosecution is required to lead the cogent evidence to prove the case against the accused, which in the present case, the prosecution has failed to produce and lead the evidence. Once the accused pleads not guilty at the time of framing of the charge and thereafter the charge is framed against the accused, the prosecution is required to lead the cogent evidence to prove the case against the accused, which in the present case, the prosecution has failed to produce and lead the evidence. On considering the deposition of PW No.1 and the documentary evidence which are produced on record, it cannot be said that the said evidence was sufficient to establish and prove the guilt of the accused for the offence under Section 20(A) (i) of the NDPS. At this stage, it is required to be noted and as observed herein above, even the learned Public Prosecutor had not submitted any closing pursis to declare that the prosecution has closed the evidence nor any dropping pursis to drop the witness was given by the prosecution. Despite the above, the learned Special Judge bypassing the whole procedure which was required to be followed by him while conducting the trial, solely on the basis of the pursis submitted at Exh.37 has convicted the accused which cannot be sustained. At this stage, the decision of the learned Single Judge of this Court in the case of State of Gujarat vs. Bhiya Husein Koreja reported in 1980(2) GLR 34 is required to be referred to. In the case before the learned Single Judge the accused was given assurance that he will be given lighter punishment if the pleads guilty and consequently learned Magistrate imposed lighter punishment against which, the State preferred appeal for enhancement and to that learned Single Judge has observed and held that such procedure amounts to denial of fair trial and after quashing and set aside the judgment and order passed by the learned Magistrate, the learned Single Judge remanded the matter to the learned trial Court for retrial in accordance with law. 7.2. At this stage, one another decision of the Hon'ble Supreme Court in the case of Ganeshmal Jashraj vs. Government of Gujarat reported in 1980(1) SCC 363 is also required to be referred to. 7.2. At this stage, one another decision of the Hon'ble Supreme Court in the case of Ganeshmal Jashraj vs. Government of Gujarat reported in 1980(1) SCC 363 is also required to be referred to. In the case before the Hon'ble Supreme Court though the accused admitted all guilt made by him and/or pleaded guilty after the prosecution evidence was closed and the accused was examined under Section 313 of the Code of Criminal Procedure and though the learned Magistrate convicted the accused considering the evidence on record and not on the admission of the guilty, the Hon'ble Supreme Court has observed that same is not permissible by observing that approach of the Court to the assessment of the evidence would be likely to be different when there is an admission of guilt by the accused. In the said decision the Hon'ble Supreme Court has also observed as under: “Now, it is true that when the appellant was called upon to make his plea before the commencement of the prosecution evidence, he pleaded not guilty in respect of the offence charged against him and it was only after the prosecution evidence was closed and his 1117 examination under section 313 of the Code of Criminal Procedure was completed that he admitted guilt presumably as a result of plea bargaining. The learned Judicial Magistrate was in the circumstances not entitled to take into account the admission of guilt made by the appellant in reaching his decision in regard to the conviction of the appellant. The learned Judicial Magistrate, it is true, did not base his order of conviction solely on the admission of guilt made by the appellant, but it is clear from his judgment that his conclusion was not unaffected by the admission of guilt on the part of the appellant. There can be no doubt that when there is an admission of guilt made by the accused as a result of plea bargaining or otherwise, the evaluation of the evidence by the Court is likely to become a little superficial and perfunctory and the Court may be disposed to refer to the evidence not critically with a view to assessing its credibility but mechanically as a matter of formality in support of the admission of guilt. The entire approach of the Court to the assessment of the evidence would be likely to be different when there is an admission of guilt by the accused. Here it is obvious that the approach of the learned Judicial Magistrate was affected by the admission of guilt made by the appellant and in the circumstances, it would not be right to sustain the conviction of the appellant.” 7.3. In the case of State of Gujarat vs. Krushnmorari Ramkrushna Gupta & Ors reported in 1988(2) GLR 965 , the learned Single Judge has observed and held as under: “It seems that some Magistrates are ignoring the mandate of the Legislature and the decisions of this Court as well as of the Supreme Court of imposing minimum sentence for the offences punishable under the Prevention of Food Adulteration Act for the reasons best known to them, may be because of their ignorance or uncalled for haste in disposing of the case or for some other reasons. These observations are made because not only in the aforesaid two cases the learned Magistrates Mr. F.A. Gadhvi and Mr. S.M. Desai have passed the aforesaid orders but Mr. K.I. Kachhia, Judicial Magistrate, First Class, Vyara has passed similar order which is under challenge in Criminal Appeal No. 142 of 1987 and also Mr. A.N. Naik, Judicial Magistrate, First Class, Petlad and Mr. H.R. Thakor, Chief Judicial Magistrate, Nadiad, have passed similar orders which are under challenge in Criminal Appeal Nos. 473 and 474 of 1987 respectively.” 7.4. Considering the aforesaid facts and circumstance of the case, the impugned judgment and order passed by the learned Special Judge cannot be sustained and same deserves to be quashed and set aside and the matter is to be remanded to the learned Special Judge for retrial in accordance with law. 8. In view of the above and for the reasons stated above, the order passed by the learned 3rd Additional Special Judge, Sabarkantha at Modasa dated 21.12.2013 passed in Special NDPS Case No. 2 of 2013 is hereby quashed and set aside and the matter is remanded to the learned Special Judge for retrial in accordance with law. The learned Special Judge to decide and dispose of the trial in accordance with law at the earliest and preferably within a period of 9 months from the date of receipt of present order. The learned Special Judge to decide and dispose of the trial in accordance with law at the earliest and preferably within a period of 9 months from the date of receipt of present order. Registry is directed to send the Record and Proceedings of the case to the learned trial Court forthwith along with writ of the present order. Matter remanded.