Fulgiri Kanaiyagiri Gosai vs State of Gujarat

J.C. Upadhyaya, J.—Challenge in this Appeal filed u/s 374 of the Code of Criminal Procedure, 1973 (''the Code for short'') is to the correctness of the judgment and order dated 8th May, 2008, rendered in Special (NDPS) Case No. 109 of 2006, by the learned Additional Sessions Judge, Fast Track Court No. 4, Palanpur, by which the appellant (original accused) came to be convicted for the offence punishable u/s 15(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (''the NDPS Act'' for short) and sentenced to undergo RI for 10 years and to pay fine of Rs. 1 lac and in default of payment of fine, simple imprisonment for one year.

Since the facts of the case have been detailed in the judgment of the Trial Court, it is not necessary for us to repeat the same all over again in verbatim and in detail in this judgment. However, basic facts which are necessary to be discussed for deciding this Appeal, as disclosed from the FIR and unfolded during trial, are as under:

2.1 Mr. R.N. Patel, PSI, Palanpur, received an information on dated 23rd May, 2006 to the effect that one person was found with poppy straw in ST Bus stand. Upon receipt of such information, panchas as well as a merchant with weighing scale were called. Panchas were apprised with the information received by Mr. R.N. Patel. Raid was conducted at 19.30 hours on 23rd May, 2006 in ST Bus Stand, Palanpur, wherein the appellant-accused was found carrying one bag and upon search of the bag, poppy straw, weighing 8 kgs and 700 grams came to be found. FIR is produced at page No. 89 of the paper book. Mr. R.N. Patel, PSI, lodged the FIR in Palanpur City Police Station regarding the recovery of poppy straw against the appellant - accused and the same was registered.

2.2 During the course of police investigation, statements of material witnesses were recorded, samples of poppy straw collected from the bag recovered from the accused - appellant were sent to Forensic Science Laboratory for analysis. After collecting the required material for the purpose of lodgment of charge sheet and after receipt of the report of FSL, charge sheet came to be filed against the appellant - accused in Special Court, Palanpur, which was registered as Special (NDPS) Case No. 109 of 2006 and the said case was made over to the Court of Additional Sessions Judge, Fast Track Court No. 4, Palanpur (the Trial Court for short) for trial.

The Trial Court framed charge against the accused at Exhibit-7 regarding the offence punishable u/s 15(b) of the NDPS Act, to which the accused did not plead guilty and claimed to be tried. Thereupon, the prosecution examined 15 witnesses and produced required documentary evidence detailed in para-4 in the impugned judgment. After the prosecution concluded its oral evidence, the learned Trial Court recorded the further statement of the accused u/s 313 of the Code and the appellant accused in his further statement denied generally all the incriminating circumstances put to him by the Trial Court and stated that when he was sitting in the ST Bus Stand, some bags were lying near him and he did not know what was there in those bags and that he was falsely implicated in this case.

After appreciating the evidence on record and the submissions made on behalf of both the sides, the Trial Court came to the conclusion that so far as the appellant - accused is concerned, prosecution proved its case beyond any reasonable doubt and recorded the conviction for the offence punishable u/s 15(b) of the NDPS Act and awarded the sentence, as here-in-above referred to in this judgment. However, so far as co-accused No. 2. Omprakash Khuddhramji Mevada, was concerned, the Trial Court observed that, no case was made out against him and that the prosecution failed to establish his complicity in this case and, therefore, recorded acquittal of co-accused No. 2 Omprakash Khuddhramji Mevada. It is submitted that the State did not challenge the acquittal of co-accused Omprakash Khuddhramji Mevada by preferring any acquittal appeal. Since, the appellant - original accused No. 1 came to be convicted and sentenced, the present Appeal came to be preferred by challenging his conviction and sentence.

We have heard the submissions advanced by Mr. R.M. Agrawal, learned Advocate representing the appellant - accused and L.B. Dabhi, learned APP, representing the respondent - State.

At the outset, Mr. R.M. Agrawal, learned Advocate for the appellant - accused submitted that considering the evidence on record, the appellant does not challenge his conviction recorded u/s 15(b) of the NDPS Act. However, it is urged that so far as the sentence awarded by the Trial Court is concerned, the same may be reduced and it is submitted that the sentence awarded by the Trial Court is disproportionate to the quantity of the contraband article recovered which is 8 kgs and 700 grams in view of the Amendment Act 9 of 2010, which came into effect from 2nd October, 2001. It is submitted that considering Rule No. 110 in the Schedule attached to the NDPS Act, in case of poppy straw, upto 1,000 grams (1 kg) which is small quantity and the commercial quantity is 50 kgs and more. Mr. Agrawal, learned Advocate for the appellant, therefore, submitted that so far as the quantity of contraband article recovered from the appellant being 8 kgs and 700 grams, the quantity recovered is larger than small quantity but lesser than commercial quantity and our attention is drawn to the provisions contained regarding the punishment u/s 15(b) of the NDPS Act, wherein it is prescribed that, when the quantity recovered is lesser than commercial quantity but greater than small quantity, the rigorous imprisonment for a term which may extend to 10 years and with fine which may extend to Rs.1 lacs.

6.1 Mr. R.M. Agrawal, learned Advocate for the appellant, urged that in the instant case, the appellant is aged about 77 years and he is in jail since last more than four years. It is further submitted that considering the impugned judgment and order rendered by the Trial Court, though, the Trial Court observed that the quantity of poppy straw recovered from the appellant was greater than small quantity but lesser than commercial quantity, yet, the maximum sentence prescribed u/s 15(b) of the NDPS Act has been awarded to the appellant. It is further submitted that no reason is assigned by the Trial Court for imposing the maximum sentence prescribed under the Act. In the above premises, Mr. Agrawal, learned Advocate for the appellant, requested that the period undergone by the appellant in jail, if considered as the sentence of imprisonment, it would meet the ends of justice. It is further submitted that the fine of Rs. 1 lac awarded by the Trial Court is the maximum fine prescribed under the statute, and considering the facts and circumstances of the case, the fine may be reasonably reduced.

Per contra, Mr. L.B. Dabhi, learned APP, representing the respondent - State vehemently opposed the request made by Mr. Agrawal, learned Advocate for the appellant, regarding the reduction in sentence. It is submitted that considering the facts and circumstances of the case, the Trial Court was justified in awarding the sentence of rigorous imprisonment for 10 years and fine of Rs. 1 lac. It is, therefore, submitted that the Appeal may be dismissed.

We have examined the record and proceedings of the case in context with the submissions made by the rival parties.

Since on behalf of the appellant, the conviction is not challenged, it would not be necessary for us to go deep into the merits of the case. Suffice it to say that we have examined the evidence of the material witnesses examined by the prosecution before the Trial Court and we are satisfied that the Trial Court did not commit any illegality or any irregularity while recording conviction of the appellant - accused.

As stated above, the present appeal is pressed, qua, the sentence awarded by the Trial Court. The weight of poppy straw recovered from the possession of the appellant was 8 kgs and 700 grams. Considering Rule No. 110 in the Schedule attached to the NDPS Act, in case of Poppy Straw, upto 1 kg, which is small quantity and 50 kgs and more, which is commercial quantity. Under such circumstances, the quantity of poppy straw recovered from the possession of the appellant would be intermittent quantity which is lesser than commercial quantity but greater than small quantity. Moreover, considering Section 15(b) of the NDPS Act, it is provided that, when the contravention involves quantity lesser than commercial quantity but greater than small quantity, the punishment prescribed is rigorous imprisonment for a term which may extend to 10 years, and with fine which may extend to Rs. 1 lac. Under such circumstances, the rigorous imprisonment for 10 years and fine of Rs.1 lac is the maximum sentence prescribed u/s 15(b) of the NDPS Act. In the instant case, the Trial Court thus awarded the maximum sentence prescribed u/s 15(b) of the NDPS Act to the appellant. We have considered the reasons assigned by the Trial Court for fixing the quantum of sentence. The Trial Court was justified in observing that the quantity recovered from the appellant was lesser than commercial quantity but greater than small quantity. However, no cogent and convincing reasons are assigned while awarding maximum sentence prescribed u/s 15(b) of the NDPS Act.

10.1 In this respect, considering the record of the Trial Court as well as the jail remarks sheet, it becomes clear that, at present, the appellant is aged about 77 years, nothing is alleged by the prosecution that there was any previous conviction of the appellant in connection with similar offence.

In the case of Balwinder Singh v. Assistant Commissioner, Customs and Central Excise as reported in (2005) 4 SCC 146, the Supreme Court has narrated the relevant factors to be considered for reduction of sentence for the offence under NDPS Act. In the said case, the accused was convicted under the NDPS Act for the first time and, therefore, the sentence was reduced from RI for 14 years to RI for 10 years.

In the case of Shantilal v. State of M.P. as reported in (2008) 1 SCC (Cri), Supreme Court, in para 31 of the reported decision, has held as under:

The next submission of the learned Counsel for the appellant, however, has substance. The term of imprisonment in default of payment of fine is not a sentence. It is a penalty which a person incurs on account of non-payment of fine. The sentence is something which an offender must undergo unless it is set aside or remitted in part or in whole either in appeal or in revision or in other appropriate judicial proceedings or ''otherwise''. A term of imprisonment ordered in default of payment of fine stands on a different footing. A person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. He, therefore, can always avoid to undergo imprisonment in default of payment of fine by paying such amount. It is, therefore, not only the power but the duty of the court to keep in view the nature of offence, circumstances under which it was committed, the position of the offender and other relevant considerations before ordering the offender to suffer imprisonment in default of payment of fine.

The ratio laid down by the Hon ble Apex Court in above referred two judgments is squarely applicable to the facts of the instant case. In the instant case, as per the case of the prosecution, 8 kgs and 700 grams contraband article-poppy straw was recovered from the possession of the appellant. As stated above, considering the Rule No. 110 in the Schedule attached to the NDPS Act, in case of poppy straw, the recovery of 8 kgs and 700 grams, would be lesser than commercial quantity but greater than small quantity, and as discussed above, considering Section 15(b) of the NDPS Act, no minimum sentence is prescribed but the maximum sentence prescribed is rigorous imprisonment for 10 years and fine of Rs. 1 lac.

Seen in the above context, the sentence awarded by the Trial Court to the appellant seems to be disproportionate to the contraband article-poppy straw recovered from the appellant, which deserves to be modified. In the instant case, as stated above, the accused is in jail in connection with this case since last more than four years. He is aged about 77 years. Under such circumstances, it would be in the fitness of the things, if the rigorous imprisonment for four years and fine of Rs. 25,000/- and in default of payment of fine, rigorous imprisonment for six months, is awarded to the appellant - accused, it would meet the ends of justice.

For the foregoing reasons, the Appeal is allowed in part and accordingly it is partly allowed, qua, the sentence only. The impugned judgment and order of conviction passed in Special (NDPS) Case No. 109 of 2006, by the learned Additional Sessions Judge, Fast Track Court No. 4, Palanpur, against the appellant-accused is confirmed and maintained. However, while upholding the conviction of accused u/s 15(b) of the N.D.P.S. Act, the sentence imposed on him to undergo RI for 10 years and fine of Rs. 1 lac and in default of payment of fine, simple imprisonment for one year is modified and instead appellant - accused - FULGIRI KANAIYAGIRI GOSAI,is sentenced to undergo RI for four years and fine of Rs. 25,000/- and in default of payment of fine, RI for six months. As per the jail remarks sheet, the appellant - accused is in jail for more than four years and, therefore, he shall be set at liberty forthwith if no longer required in connection with any other offence in jail, on payment of fine of Rs. 25,000/- which shall be deposited before the Trial Court, or else, in default of payment of fine, he shall have to undergo RI for six months.