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2016 DIGILAW 822 (GUJ)

Sushant v. State of Gujarat

2016-04-13

BIREN VAISHNAV, K.S.JHAVERI

body2016
JUDGMENT : K.S. Jhaveri, J. 1. By way of this Appeal, the Appellant-original accused has felt aggrieved by the judgment and order of conviction and sentence dated 07.01.2012 passed by the learned Special Judge and 2nd Additional Sessions Judge, Jamnagar in Special NDPS Case No. 6/2009 whereby the appellant herein was convicted for the offences punishable under Section 20(B) the Narcotic and Psychotropic Substances Act, 1985 (hereinafter referred to in short as the NDPS Act) and was sentenced to undergo rigorous imprisonment for 10 years and fine of Rs. 1,00,000/- and in default of payment of fine, rigorous imprisonment for one year. The appellant herein was also convicted under Section 22(B) of the NDPS Act and was sentenced to undergo rigorous imprisonment for 10 years and fine of Rs. 1,00,000/- and in default of payment of fine, rigorous imprisonment for two years. All the sentences were ordered to run separately. Accused was given set off for the period undergone in jail. 2. The case of the prosecution is as under:- 2.1. On 01.04.2009 at about 12.20 on the basis of prior information received, the raiding party searched the person of the accused and on the back of the cycle in the luggage found one bag containing 13.150 kilograms of "ganja" for which there was no valid pass or permit. Therefore, a complaint in this regard was lodged by the complainant as II-C.R. No. 67/2009 with Jamnagar Panch 'B' Division Police Station under Sections 20(B) and 22(B) of the above Act. 2.2. At the end of the investigation, the charge-sheet against the accused were led in the Court of the learned Judicial Magistrate First Class, Jamnagar which was numbered as Criminal Case No. 3255/09. However, as it was a Sessions triable case, it was committed the case to the Sessions Court at Jamnagar. The trial Court framed the charge, to which the accused pleaded not guilty and claimed to be tried. 2.3. However, as it was a Sessions triable case, it was committed the case to the Sessions Court at Jamnagar. The trial Court framed the charge, to which the accused pleaded not guilty and claimed to be tried. 2.3. At the time of the trial, the prosecution examined the following witnesses:- Particulars Exhibit Jagdish Mohanbhai Parmar 9 Panch Aslam Ibrahim Khira 24 Panch Devabhai Valjibhai 28 Panch Mohammed Aminbhai 31 Panch Bharat Karabhai 35 Witness Santoshkumar Joramal 37 Investigating Officer Rameshchandra Bhikhamdas Nimavat 43 ASI Ashwinkumar Chhaganlal 49 Witness Pranjivan Gangaram 52 Police Inspector Ravishankar Karunshankar Taraiva 53 Head Constable Jivubha Bhurubha Jadeja 63 The prosecution also relied upon various documentary evidence, some of them are:- Particulars Exhibit Jagdish Mohanbhai Parmar 9 Panch Aslam Ibrahim Khira 24 Panch Devabhai Valjibhai 28 Panch Mohammed Aminbhai 31 Panch Bharat Karabhai 35 Witness Santoshkumar Joramal 37 Investigating Officer Rameshchandra Bhikhamdas Nimavat 43 ASI Ashwinkumar Chhaganlal 49 Witness Pranjivan Gangaram 52 Police Inspector Ravishankar Karunshankar Taraiya 53 Head Constable Jivubha Bhurubha Jadeja 63 Particulars Exhibit Panchnama of the raid 10 Resolution of Section 42(1) of the NPDS Act 11 Seizure Memo of the seized muddamal 12 Report regarding the intimation of arrest of the accused 13 Resolution of Section 50(1) of the NPDS Act 14 Certificate regarding the weight of the muddamal 15 Panchnama regarding the seizure 29 Panchnama regarding the seizure of muddamal 32 Yadi regarding the information received 44 Copy of the information registered 45 Original complaint 46 Yadi regarding the record of offences 47 Extract of the muddamal Register 50 Extract of the FSL Register 51 Information regarding the progress of investigation 54 Yadi regarding the registration of offences 55 Extract of the Station Diary 56, 63 Yadi regarding the muddamal sent for analysis 57 Receipt regarding the receipt of muddamal 58 2.4. At the end of the trial, further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded in which the accused pleaded not guilty and stated that he has been falsely implicated in the offence. Thus, after recording the further statement of the accused and hearing the arguments of both the sides, the learned Additional Sessions Judge passed the above judgment and order. Being aggrieved by the same, the present appeal has been filed, as aforesaid. 3. Learned Advocate for the accused Mr. Thus, after recording the further statement of the accused and hearing the arguments of both the sides, the learned Additional Sessions Judge passed the above judgment and order. Being aggrieved by the same, the present appeal has been filed, as aforesaid. 3. Learned Advocate for the accused Mr. Yogendra Thakore has submitted that no evidence surfaces against the appellant herein and the panchas have also turned hostile. It is also submitted that the prosecution has examined all police witnesses and in absence of any independent evidence, the appellant is required to be acquitted. It is further submitted that a serious error has been committed by ordering the sentences to run separately. Further, he has placed reliance on the decision of the Hon'ble Apex Court in the case of Shantilal vs. State of Madhya Pradesh, 2007 (11) SCC 243 and has urged that atleast the default sentence should be reduced in the facts and circumstances of the case. Learned Advocate for the accused has also drawn our attention to the decision of this Court in the case of Subhashbhai Stevan Chirsti vs. State of Gujarat, 2014 JX (Guj) 694. 4. On the other hand, learned Additional Public Prosecutor Ms. C.M. Shah taken this Court to the judgment and order of the learned Sessions Judge and has submitted that cogent and convincing reasons have been given to arrive at the conviction and sentence of the accused. It is further submitted that the prosecution has been able to prove its case beyond reasonable doubt. Considering the above, it is submitted that this is a fit case which requires no interference of this Court and the judgment and order of the learned Judge be upheld by this Court. 5. We have heard learned Advocates appearing for the respective parties and perused the records of the case. At this stage, it is relevant to refer to Sections 20 and 22 of the NDPS Act:- "20. Punishment for contravention in relation to cannabis plant and cannabis - Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder:– (a) Cultivates any cannabis plant. At this stage, it is relevant to refer to Sections 20 and 22 of the NDPS Act:- "20. Punishment for contravention in relation to cannabis plant and cannabis - Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder:– (a) Cultivates any cannabis plant. (b) Produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports interstate or uses cannabis, shall be punishable:– 3(i) Where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and (ii) where such contravention relates to sub-clause (b):- (A) And involves small quantity, with rigorous imprisonment for a term which may extend to one year-six months, or with fine which may extend to ten thousand rupees, or with both. (B) And involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees. (C) And involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. 22. Punishment for contravention in relation to psychotropic substances.-Whoever, in contravention of any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any psychotropic substance shall be punishable:- (a) Where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to 5[one year] or with fine which may extend to ten thousand rupees or with both. (b) Where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees. (b) Where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees. (c) Where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than then years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees." 6. Taking into consideration the evidence that has surfaced on record as well as the evidences led by various witnesses, it is not in dispute that the consignment of "ganja" was recovered from the accused herein and therefore, we are of the view that the learned Sessions Judge has committed no error in awarding the sentence as the quantity of "ganja" recovered was less than the commercial quantity but more than the small quantity as stipulated. However, we are of the view that in the facts and circumstances of the case, we consider the submissions canvassed by learned Advocate for the appellant accused qua that the sentences should run concurrently and also that the default punishment awarded should be reduced taking into consideration the decision of the Hon'ble Apex Court in the case of Shantilal (supra). 7. The Appeal is partly allowed. The judgment and order of conviction and sentence dated 07.01.2012 passed by the learned Special Judge and 2nd Additional Sessions Judge, Jamnagar in Special NDPS Case No. 6/2009 is modified to the extent that the sentences under Sections 20(B)and 22(B) of the Narcotic and Psychotropic Substances Act (the NDPS Act) are ordered to run concurrently and the default rigorous imprisonment of two years each under the above Sections are reduced to a period of six months for each default, granting the benefit of the judgment rendered by the Hon'ble Apex Court in the case of Shantilal vs. State of Madhya Pradesh, 2007 (11) SCC 243 . The rest of the part of the judgment and order of conviction and sentence remains unaltered. The rest of the part of the judgment and order of conviction and sentence remains unaltered. It is reported that the appellant accused is currently lodged at the Presidency Correctional Home, Alipore, Kolkata and hence, the accused is directed to be sent to the appropriate Jail authorities for serving the remaining period of the awarded sentence. Record and proceedings be sent to the concerned Trial Court forthwith.