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2016 (7) TMI 581 - GUJARAT HIGH COURT

2016 (7) TMI 581 - GUJARAT HIGH COURT - TMI - Validity of Conviction and sentence to suffer rigorous imprisonment for ten years - offence punishable under section 20(B) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS) - Held that:- It is to be noted that in the present case, the appellants were found in possession of 3 kg and 400 gm of contraband article ‘ganja’. Maximum punishment prescribed for small quantity of 1000 grams of ganja is six months while for possession of comme .....

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lity between the small and commercial quantity should have been considered by the trial court while imposing sentence. - As per the jail 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 .....

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nal 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 Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as 'the NDPS Act'). 2. Facts, in nutshell, are that the accused were found selling contraband ar .....

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the Court of Sessions. Thereafter charge was framed against the accused which was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried. Hence, the prosecution was asked to prove the guilt against the accused. To prove the case, the prosecution examined ten witnesses and produced and relied on several documentary evidence numbering 27. After filing of closing pursis by the prosecution, further statements of accused under Sec.313 of Cr.P.C. .....

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ed counsel for the appellants drew attention of this Court on a decision of the Hon ble Supreme Court in the case of Ghasita Sahu Vs. State of M.P. reported in AIR 2008 SC 1425 wherein sentence imposed on the accused was reduced from five years RI to the period already undergone by the accused for possession of 17 kg and 750 gm of contraband article ganja . He further drew attention of this Court on the case of Fakir Imamsha Davalsha Vs. State of Gujarat reported in 2011 JX(Guj) 955 wherein sent .....

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viction 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 yea .....

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he appellants were convicted for the serious offence under the NDPS Act for possessing contraband article ganja which, if sold in the market, would seriously affect the health of the public at large and hence, no leniency be shown towards the appellants. 6. The main submission canvassed by the learned advocates for the parties pertains to the quantum of punishment awarded to the appellants for the offence under section 20(B) of the NDPS Act. It is to be noted that the appellants were sentenced t .....

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udgment so far as the conviction of the present appellants is concerned. However, the question to be considered is as to whether the appellants, in the given facts and circumstances of the case, are entitled to reduction of sentence which has been awarded by the trial court or not. 6.1 In this connection, reference will have to be made to the decision rendered by the Hon ble Supreme Court in an identical situation in the case of Ghasita Sahu (supra) relied on by the learned advocate for the appe .....

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they are inconsistent to the provisions of the Act to all warrants, arrest, searches and seizures made under this Act. The right of the search being taken only in presence of a Magistrate or a Gazetted Officer is restricted where the search is to be taken 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 argume .....

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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 accused would undergo further per .....

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on the count of sentence. There is no dispute that as per Sr.No.55 regarding the 'Ganja', contained in table annexed to the NDPS Act, the quantity of 'Ganja' upto 1000 gms. is considered to be small quantity and quantity of 20 kgs. and more is considered to be commercial quantity. In the instant case, as established by the prosecution, the contraband substance 'Ganja', which came to be seized from the accused was weighing 9 kgs. and 140 gms., meaning thereby, the quantit .....

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As stated above, so far as 'Ganja' is concerned, the commercial quantity is 20 kgs. And more. Thus, it is apparent that the trial Court committed serious error in considering the quantity of 'Ganja' weighing 9 kgs. and 140 gms. as commercial quantity. On such premise, the trial Court, therefore, awarded the sentence of RI for 10 years and fine of ₹ 1 Lac. We are, therefore,of the considered opinion that the trial Court committed serious error while determining the quantum .....

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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 200 .....

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Charas weighing nearly 9.5 Kgs. The Division Bench reduced the punishment from that of rigorous imprisonment of 15 years to the minimum of 10 years as prescribed under the Act. 5.2 Similarly in a judgement dated 05.02.2008 rendered by the Division Bench of this Court in Criminal Appeal No. 954 of 2003 with Criminal Appeal No. 2277 of 2004, the accused were found to be in possession of Charas of nearly 6 Kgs. The Division Bench reduced the sentence from rigorous imprisonment of 12 years to the mi .....

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d that commercial quantity for Ganja is prescribed as 20 Kgs. 5.4 In the case of Shanti Lal vs. State of M.P. reported in 2007(2) EFR 702, the Apex Court in para 36 observed that the accused appellant is a very poor person and it was his first offence. It is further observed that because of poverty he could not pay the heavy amount of fine of ₹ 1 lakh and that if he is ordered to remain in jail even after the period of substantive sentence is over only because of his inability to pay fine, .....

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I find that imposition of the sentence of 7 years and fine of ₹ 75,000/- in the facts of this case are harsh. 8. As already stated the appellant was found in possession of 462.916 gms of charas. Small quantity of charas is defined as 100 gms and commercial quantity is 1 Kg. The appellant was thus carrying charas more than small quantity but substantially lesser than commercial quantity. In that view of the matter, and also considering the fact that the appellant is a first time offender an .....

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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 h .....

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₹ 50,000/- need to be reduced. 11. In the result, the appeal is disposed of with the following directions: 1. Conviction under section 20(b)(ii)(B) of the NDPS Act is upheld. 2. Sentence imposed on the appellant for the said offence is however reduced to four years of R.I. and fine of ₹ 10,000/- (Rupees ten thousand). In case of default of payment of fine, he shall serve further sentence of six months of R.I. 3. Conviction and sentence under section 23 of the NDPS Act are set aside. .....

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r more, punishment prescribed is minimum of 10 years of rigorous imprisonment and fine. Thus, for possession of small and commercial quantity, punishment prescribed is a sentence extending to ten years and fine. However, in case of ganja, the sentence would alter in proportion to the quantity of ganja seized. Thus, there is huge difference between possession of 3 kg and 400 gm of ganja and 20 kg and therefore, in tune with the legislative intent, principle of proportionality between the small an .....

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