JUDGMENT/ORDER : S.G. Shah, J. Both these appeals are arising out of same impugned judgment and order dated 22.2.2012 in Sessions Case No. (NDPS) 33 of 2010 by Addl. Sessions Judge of City Sessions Court No.12, Ahmedabad City, wherein both the appellants were accused and convicted by such common impugned judgment for the offences punishable under The Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act', for short) . Therefore, both the appeals are consolidated and heard together and decided by this common judgment. 2. Heard learned advocate Mr. E.E. Saiyed for the appellants and learned APP Mr. Chintan Dave for the respondent State in both the Criminal Appeals. Perused the record as well as the R & P of trial Court. 3. Both the appellants were prosecuted pursuant to recovery of Charas from them. As per the prosecution case, appellant of Criminal Appeal No.449 of 2012 Ranjit @ Abdul Shantilal Shankerlal Darji was having 5.466 Kgs. of Charas with him; whereas appellant of Criminal Appeal No.197 of 2012 Mehmoodabibi Valimohammad Abdulla Shaikh was having 35 Gms. of Charas with her. It is the case of the prosecution that upon secret information being received regarding trafficking of narcotic drugs at S.T. Bus Stand of Ahmedabad, when they reached the S.T. Bus Stand, they caught and arrested appellant Ranjit @ Abdul Shantilal Shankerlal Darji with 5.466 Kgs. of Charas on 12.11.2009, and during investigation, it was disclosed by said Ranjit Darji that the appellant Mehmoodabibi Shaikh is also involved in such business and dealing with narcotic drugs, they arrested her on 16.11.2009 because 35 Gms. of Charas was found from her. For such possession of narcotic drug from the appellants, an FIR was registered on 12.11.2009 being 503 of 2009. Appellant Ranjit Darji is in custody since then; whereas Mehmoodabibi Shaikh was released on bail on 4.3.2012, pending her appeal. 4. Based upon the investigation, chargesheet was filed and charges under Section 8(c), 20(b) and 29 of the NDPS Act was framed against the appellants. After trial, the appellants were convicted for the aforesaid offences by the impugned judgment and surprisingly, the Sessions Court has awarded equal punishment to both the accused irrespective of quantity of contraband material recovered from them, so also irrespective of nature of evidence against each of them. After trial, the appellants were convicted for the aforesaid offences by the impugned judgment and surprisingly, the Sessions Court has awarded equal punishment to both the accused irrespective of quantity of contraband material recovered from them, so also irrespective of nature of evidence against each of them. So far as the operative order awarding sentence to the appellants are concerned, same is also surprising, inasmuch as the Sessions Court has not sentenced the appellant Mehmoodabibi Shaikh separately for 35 Gms. Charas found from her, but convicted her for the Charas found with main accused Ranjit Darji, which is huge in quantity, only on the premise that Ranjit Darji was going to deliver such Charas to her. Thereby, the Sessions Court has awarded sentence of 10 years Rigorous Imprisonment (RI) and Rs.1, 00, 000/- fine to both of them with condition that if the fine amount is not paid, then, to undergo further two years simple imprisonment (SI). So far as 35 Gms. Charas recovered from Mehmoodabibi Shaikh is concerned, the Sessions Court has recorded that instead of awarding separate punishment, the period for which she has remained in jail, pending trial, is to be considered as her punishment. However, in that case, the Sessions Court has failed to realise that maximum punishment for such small quantity was six months at the relevant time when the offence was committed and it was one year at the time of awarding punishment and therefore, when she has remained in custody for more than two years, the order of conviction qua Mehmoodabibi Shaikh, is certainly illegal and needs to be interfered with. 5. However, so far as the appellant Ranjit Darji is concerned, considering the huge quantity, being more than the commercial quantity, one has to scrutinize the entire record to verify that whether his conviction is proper or not. I have verified the entire record and all the evidence adduced before the Sessions Court so also judgment of the Sessions Court. Details of witnesses and other minute details of procedural part, right from recording FIR till recording further statement of the accused during trial, is properly described in the impugned judgment and therefore, I do not wish to reproduce same story. Similarly, details of witnesses and documentary evidence with exhibit numbers and its outcome is well described in the impugned judgment and therefore also, its reproduction is avoided. Similarly, details of witnesses and documentary evidence with exhibit numbers and its outcome is well described in the impugned judgment and therefore also, its reproduction is avoided. The overall scrutiny of entire record, documentary evidence as well as oral evidence before the Sessions Court, certainly confirms that the accused Ranjit Darji was having possession of huge quantity of Charas on 12.11.2009 when he was intercepted at S.T. Bus Stand of Ahmedabad i.e. a public place from where person can easily travel to different places and therefore, it becomes clear that appellant Ranjit Darji was transporting huge quantity of Charas, which being more than 5 Kgs., falls within the category of Commercial Category. The F.S.L. report confirms the quality of such contraband material as narcotic drug and in absence of any evidence in rebuttal, which is not otherwise possible by the appellant when he was caught with such contraband material from public place so as to plead that he was not concerned with such material and therefore, there is no scope for his acquittal for any reason, including legal technicalities. Therefore, when there is sufficient material on record to prove that material possessed by the appellant and recovered from him was contraband material, discussion of different evidence is not material and to that extent, there is no substance in the appeal by the appellant - Criminal Appeal No.449 of 2012 Ranjit @ Abdul Shantilal Shankerlal Darji so as to quash and set-aside the impugned judgment qua his conviction and thereby, to acquit him from the charges, which are otherwise proved against him. 6. It is undisputed fact that evidence on record, clearly proves the possession of contraband material from the appellant Ranjit Darji and during trial, the investigating agency has successfully adduced sufficient and relevant evidence to confirm such possession and appellant could not rebut the same. The discussion and appreciation of evidence by the trial Court is perfect and proper so as to arrive at the conclusion to convict Ranjit Darji. Therefore, when I endorse such reasoning for conviction, I do not want to re-discuss the same. 7. Whereas, so far as Criminal Appeal No.197 of 2012 by Mehmoodabibi Valimohammad Abdulla Shaikh is concerned, as already recorded herein above, the order against her in impugned judgment needs to be modified even if it is not quashed and setaside. Therefore, it would be appropriate to record the grounds for the same. 7. Whereas, so far as Criminal Appeal No.197 of 2012 by Mehmoodabibi Valimohammad Abdulla Shaikh is concerned, as already recorded herein above, the order against her in impugned judgment needs to be modified even if it is not quashed and setaside. Therefore, it would be appropriate to record the grounds for the same. 8. Learned advocate Mr. Saiyed for the appellants submits as under:- (a) Only Ranjit @ Abdul Shantilal Shankerlal Darji was arrested with huge quantity of Charas; whereas Mehmoodabibi Valimohammad Abdulla Shaikh was not present and was not arrested at that place. (b) She was joined as accused only upon the statement of Ranjit Darji that contraband material is to be delivered to her. (c) There is no clarity that when Ranjit Darji has disclosed the name of Mehmoodabibi Shaikh, but it is admitted position that Mr. Vaghela of investigating team had came to know about the movement of Mehmoodabibi Shaikh and therefore, he arrested her on 16.11.2009 only on the allegation that she was possessing 35 Gms. of Charas. (d) Search of Mehmoodabibi Shaikh was not carried out in presence of Magistrate or Gazetted Officer, but it was carried out only in presence of woman Constable Puniben and one Panch witness, which is in clear violation of Section 50 of the NDPS Act. (e) Whereas, Panch witness Afsana, who had witnessed the search of Mehmoodabibi Shaikh has turned hostile, stating that she does not know anything about such search and recovery and nothing was recovered in her presence, but police has taken her signatures on 10 papers and nobody was present at that time in the police station (PW-3 at Exh.47) . (f) Information gathered during investigation about Mehmoodabibi Shaikh was never reduced in writing nor sent to superior officer, which is mandatory as per statute and no order of investigation was passed by competent authority or assigned the investigation against appellant to some investigating officer and similarly, there is no order to transfer the investigation from one investigating officer to another investigating officer. (g) So far as identification of Mehmoodabibi Shaikh is concerned, it was done only by co-accused Ranjit Darji, that too when he was in lock-up. However, there was no such endorsement in lock-up register that whether he was ever taken away from lock-up and if taken away for such inquiry, then, neither his arrival or departure time is maintained in lock-up register. However, there was no such endorsement in lock-up register that whether he was ever taken away from lock-up and if taken away for such inquiry, then, neither his arrival or departure time is maintained in lock-up register. (h) The witness who has searched the appellant Mehmoodabibi Shaikh was not aware about the precaution and prevention to be taken care of before search and that such search cannot be after sunset and before sunrise. (i) Surprisingly, by Exh.52, which is handwritten by the investigating officer and which does not have signature of the accused, the investigating officer has disclosed that personal search of Mehmoodabibi is continued after sunset and such information is by such document, alleged to have been conveyed to the mother of the appellant Mehmoodabibi, which is not permissible in law. It is evident from record that Mehmoodabibi Shaikh is illiterate and has put her thumb impression, which is evident from Exh.51. However, at Exh.52 instead of taking her signature or thumb impression, signatures of some unknown persons were taken. (j) It is also evident that there is no entry of such information either in police diary or station diary or there is no endorsement of superior officer. (k) It is certain from record that though name of Mehmoodabibi was disclosed by appellant Ranjit Darji stating that Charas is to be delivered to Mehmoodabibi, there is no disclosure about residence of Mehmoodabibi or where such Charas was to be delivered and therefore, when appellant Ranjit Darji was silent from 12.11.2009 till 15.11.2009 and only on 15.11.2009 when it is recorded in the statement of accused Ranjit Darji that Charas was to be delivered to Mehmoodabibi, there is reason to believe that it is an afterthought. (l) So far as the allegation regarding recovery of 35 Gms. Charas from Mehmoodabibi is concerned, PW-7 i.e. Amir Mehboobbhai has deposed before the court that nothing was found from anyone in his presence and he had endorsed the certificate as per the direction of police and that certificate was written by police only. 9. Learned advocate Mr. E.E. Saiyed is relying upon the recent judgment dated 11.12.2017 of Hon'ble Supreme Court of India in Criminal Appeal No. 2151 of 2017 between Pradeep Bachhar Vs. The State of Chhattisgarh wherein relying upon a reported case of Shahejedkhan Mahebubkhan Pathan Vs. 9. Learned advocate Mr. E.E. Saiyed is relying upon the recent judgment dated 11.12.2017 of Hon'ble Supreme Court of India in Criminal Appeal No. 2151 of 2017 between Pradeep Bachhar Vs. The State of Chhattisgarh wherein relying upon a reported case of Shahejedkhan Mahebubkhan Pathan Vs. State of Gujarat, (2013) 1 SCC 570 it is held that sentence of 10 years for nonpayment of fine his harsh and therefore, Hon'ble Supreme Court of India has reduced it to six months. 10. In view of above facts and circumstances, it becomes clear that conviction of the appellant Mehmoodabibi Shaikh is unwarranted. However, it is to be considered that she has been convicted for abetment of main accused Ranjit Darji based upon the statement of Ranjit Darji only, but when 35 Gms. Charas was found from her, when there is no cogent and reliable evidence against her, though she may be acquitted from all the charges, the reading of overall evidence on record confirms that barring few irregularities, if there is evidence to confirm that appellant is involved herself in dealing of the contraband material, then also, she could be punished for having possession of 35 Gms. Charas i.e. small quantity of contraband material. 11. Considering the above aspect and the fact that permissible sentence for small quantity was six months with fine of Rs.10, 000/- on the date of commission of offence, which was modified in the year 2014 and extended to one year. In any case, sentence to Mehmoodabibi cannot be beyond six months because the impugned judgment is of the year 2012. It is also evident that appellant remained in jail from 16.11.2009 till 4.3.2012 i.e. for more than 2 years. 12. Therefore, when there is violation of Section 50 of the Act, Panch witness has turned hostile, absence of independent witness, absence of relationship between both the appellants, the order of sentencing Mehmoodabibi needs to be quashed and set-aside by modifying the conviction for small quantity of 35 Gms. Charas only and modifying the sentence from 10 years R.I. to six months and fine of Rs.10, 000/- and on non-payment of such fine amount, to undergo six months S.I. 13. Charas only and modifying the sentence from 10 years R.I. to six months and fine of Rs.10, 000/- and on non-payment of such fine amount, to undergo six months S.I. 13. Thereby, the fact remains that in all appellant Mehmoodabibi has to undergo sentence of eight months only; whereas, she has already undergone imprisonment for more than 24 months and thereby, now, she does not have to undergo any imprisonment. 14. In view of above facts, circumstances and discussion, Criminal Appeal No.197 of 2012 preferred by Mehmoodabibi Valimohammad Abdulla Shaikh is partly allowed, whereby conviction for abetting - Ranjit @ Abdul Shantilal Shankerlal Darji is quashed and set-aside; whereby conviction and sentence for huge quantity is also quashed and set-aside. Whereas, when the trial Court has not sentenced her for the possession of 35 Gms. of Charas and she is convicted for 35 Gms. Charas, she has to undergo sentence for six months S.I. with fine of Rs.10, 000/- and two months S.I. for non-payment of fine. Therefore, now, she does not have to undergo further imprisonment. 15. Whereas, Criminal Appeal No.449 of 2012 by Ranjit @ Abdul Shantilal Shankerlal Darji is partly allowed only to the extent of reducing the period of simple imprisonment for non-payment of fine from two years to six months by confirming his conviction and sentence except above modification. 16. R & P be returned back to the concerned Sessions Court.