Abdulgani Abdul Ahad Bat vs State of Gujarat

Ravi R. Tripathi, J.—An application filed by the convict - Abdul Gani Abdul Ahad Bat to the Honourable the Chief Justice and other Judges of the High Court of Gujarat, this appeal, which was forwarded through the Superintendent of Jail, Vadodara Central Jail dated 31st March 2003 was treated as a Criminal Appeal No. 398 of 2003. Later on, learned advocate Mr. RM Agrawal filed his appearance for the Appellant.

Present appeal arises out of a judgment and order dated 22nd March 2003 in Special NDPS Case No. 4 of 2001, which was decided by the learned Joint District Judge and Additional Sessions Judge, Fast Track Court No. 1, Bharuch. In all, there were, in all, five accused, of which, accused no. 2 to 5 were given benefit of doubt and acquitted. The accused no. 1 was convicted for offences punishable under Sections 8(c), 20(b)(2), 22 and 29 of the NDPS Act, u/s 235 of the Code of Criminal Procedure and he was imposed punishment of 10 years Rigorous Imprisonment and a Fine of Rs.1 lakh, in default, 06 months'' Rigorous Imprisonment. The learned Additional Public Prosecutor made available for perusal the Jail Remarks. The Jail Remarks show that, initially, the Appellant was arrested on 4th September 2001. He came to be convicted on 22nd March 2003 and as on 1st March 2011, he has completed imprisonment of 09 years, 05 months and 24 days. It also shows that the convict has not paid the fine. The learned advocate for the Appellant invited the attention of the Court to the application made by the convict through jail, which is treated as criminal appeal. It is mentioned therein that, ''I, the applicant, is a member of a very poor family. I am not in a position to engage any private advocate as it is not financially possible for me. Therefore, through legal aid, services of an advocate be made available''.

2.1. The learned advocate for the Appellant argued the matter at length, taking up all contentions. The learned advocate for the Appellant emphatically argued that, taking into consideration the evidence on record, possibility of tampering with muddamal and the sample, which was sent to the FSL, cannot be ruled out and therefore, the matter is required to be considered favourably, the appeal is required to be allowed and the conviction is required to be quashed and set aside.

2.2. Besides, the learned advocate for the Appellant pressed into service various other points.

The Court, prima facie, is not convinced of the contentions raised by the learned advocate for the Appellant.

3.1. The learned advocate for the Appellant then, in the alternative, submitted that, as the convict has already completed imprisonment of almost 09 years and 06 month by now, his case be considered at least for the purpose of reduction of sentence imposed for non-payment of fine. The fine imposed is Rs. 1 lakh and in default, to undergo 06 months'' Rigorous Imprisonment. The learned advocate for the Appellant submitted that, even in the application it is submitted that the applicant - Appellant belongs to a very poor family and he has also mentioned the fact that the Appellant is not able to pay the fine, is suggestive of the fact that he has no mentor to extend help or to see that fine is paid on his behalf, so that he is able to walk out of the jail on expiry of the substantive sentence.

3.2. At this stage, it will be appropriate to refer to the submission made by the accused - Appellant at the time when he was heard on imposition of sentence. The same is recorded in Para 35. The accused had stated even there that, ''he is a member of a very poor family and he is the sole support to his family and therefore, mercy be shown and minimum possible sentence be awarded''.

Taking into consideration the overall facts of the case like, from the record, the convict appears to be convicted for the first time and the prosecution has not pointed out involvement of the accused in any other offence. At the time of hearing the accused for quantum of sentence by the learned Joint District Judge and Additional Sessions Judge, Fast Track Court No. 1, Bharuch, the accused has prayed for the minimum sentence for the reasons set out there; the fact that he has already undergone more than nine years by now; the fact that he could not file appeal by availing services of an advocate and therefore, he made an application to the Honourable the Chief Justice and other Judges of the High Court of Gujarat, which came be treated as an appeal; the fact that there is no other offence against the accused is brought on record; the age of the Appellant - convict, which the learned advocate for the Appellant has stated to be 70 years (at the time of framing the Charge and recording the Plea of Appellant - the accused No. 1 deposed that, his age is 60 years and his profession is driving, he is resident of Ankleshwar, besides, in the Jail Remarks also his age is stated to be 70 years); the decision cited by the learned advocate for the Appellant of the Honourable the Apex Court in the case of Ramji Missar and Anr. v. State of Bihar 1963 (2) CriLJ. 173, the Court deems it proper that the imprisonment in default of payment of fine is reduced from 06 months'' Rigorous Imprisonment to 03 months'' Rigorous Imprisonment.

4.2 The direction qua the ''Muddamal'' issued by the learned Judge is maintained.

4.3 The appeal is allowed to the aforesaid extent only.