TMI Blog2016 (7) TMI 581X X X X Extracts X X X X X X X X Extracts X X X X ..... ail record, behaviour 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. The appeal is accordingly partly allowed. - CRIMINAL APPEAL NO. 1437 of 2011 - - - Dated:- 1-7-2016 - MR. G.B.SHAH, J. FOR THE APPELLANT : MR YASH H JOSHI, ADVOCATE FOR THE OPPONENT : MR KL PANDYA, APP CAV JUDGMENT 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 ₹ 1,00,000/-, in default, to suffer further rigorous imprisonment for two years for the offence punishable under section 20(B) of the Na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken 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 ₹ 20,000/- to ₹ 10,000/- and in default of payment of fine the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0(b)(ii)(B) of the NDPS Act. As noted, the learned Judge sentenced the appellant to 7 years of rigourous imprisonment and also imposed fine of ₹ 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 Div ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 ₹ 75,000/- against the maximum permissible fine of ₹ 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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