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2018 DIGILAW 125 (GAU)

K. Lalchhankima v. State of Mizoram

2018-01-24

MICHAEL ZOTHANKHUMA

body2018
JUDGMENT : MICHAEL ZOTHANKHUMA, J. 1. Heard Mr. B. Lalramenga, learned counsel for the appellant. Also heard Mr. A.K. Rokhum, learned Public Prosecutor for the State. 2. The appellant has filed this appeal against the Judgment & Order dated 10.07.2017, passed by the learned Addl. Sessions Judge, Siaha in S.R. No. 1/2017, arising out of Siaha P.S Case No. 44/2016, by which the appellant has been convicted under Section 20 (b) (ii) (B) of ND&PS Act, 1985 and sentenced to undergo 4 (four) years rigorous imprisonment with a fine of Rs. 20,000/-, i.d imprisonment for a period of 4 (four) months for possession of 1000 grams of Ganja. 3. The appellant's counsel submits that though he has prayed for setting aside the conviction and sentence of the appellant in the appeal petition, he limits his prayer to reducing the sentence of the appellant as the appellant could have been convicted only under Section 20 (b) (ii) (A) of the ND&PS Act, 1985 and not under Section 20 (b) (ii) (B). 4. Mr. A.K. Rokhum, learned Public Prosecutor admits to the fact that the Trial Court committed an error in convicting and sentencing the appellant under Section 20 (b) (ii) (B) of the ND&PS Act, 1985 as the seized drug was of a small quantity, i.e. 1000 grams of Ganja. He submits that the conviction and sentence should have been under Section 20 (b) (ii) (A) of the ND&PS Act, 1985. 5. I have heard the learned counsels for the parties. 6. A perusal of the records shows that 1000 grams of Ganja leaves has been seized by the police. It is also recorded by the Trial Court that 1000 grams of Ganja has been seized from the appellant. The Notification specifying small quantity and commercial quantity of Narcotic Drugs and Psychotropic Substances, as provided in the table given in the ND&PS Act, 1985 shows that 1000 grams of Ganja comes within small quantity. Section 20 of the ND&PS Act, 1985 states as follows: "20. The Notification specifying small quantity and commercial quantity of Narcotic Drugs and Psychotropic Substances, as provided in the table given in the ND&PS Act, 1985 shows that 1000 grams of Ganja comes within small quantity. Section 20 of the ND&PS Act, 1985 states as follows: "20. Punishment for contravention in relation to cannabis plant and cannabis.-Whoever, in contravention of any provisions of this Act or any rule or order made or condition of licence granted there under,- (a) cultivates any cannabis plant; or (b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable - [(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], 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 be less than ten years but which may extend to twenty years and shall also be liable to fine which shall 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.]" 7. As punishment for contravention of the ND&PS Act, 1985, in relation to small quantity of Ganja is specifically applicable only to Section 20 (b) (ii) (A), the learned Trial Court committed an error in convicting and sentencing the appellant under Section 20 (b) (ii) (B). The Trial Court could have convicted a person under Section 20 (b) (ii) (B) of the ND&PS Act, 1985 only if the seized quantity was above small quantity and below commercial quantity. However, the records of the case and the impugned Judgment & Order dated 10.07.2017 also clearly reflect that the seized narcotic drug did weigh more than 1000 grams of Ganja. 8. However, the records of the case and the impugned Judgment & Order dated 10.07.2017 also clearly reflect that the seized narcotic drug did weigh more than 1000 grams of Ganja. 8. In view of the reasons stated above, the conviction and sentence of the appellant under Section 20 (b) (ii) (B) by the Special Court, ND&PS Act, 1985 is bad in law and is accordingly set aside. 9. The conviction and sentence of the accused has to be made under Section 20 (b) (ii) (A) of the ND&PS Act, 1985. Accordingly, this Court after perusal of the records finds that the appellant is guilty of possessing 1000 grams of Ganja. Accordingly, the appellant is convicted under Section 20 (b) (ii) (A) of the ND&PS Act, 1985 and sentenced to undergo 1 (one) year imprisonment with a fine of Rs. 6,000/-, in default S.I for a period of 2 (two) months. The period of detention already undergone by the appellant as an under-trial and convict shall be accordingly adjusted against the sentence period of 1 (one) year given herein.