Harunbhai Mehboobali vs State of Gujarat

Rajesh H. Shukla, J.—The present criminal appeal is directed against the judgment and order dated 31.3.2004 in (New) N.D.P.S. Case No. 4/2002 [(old) N.D.P.S. Case No. 13/2000] passed by the learned Addl. Sessions Judge, Fast Track Court, Valsad, recording the conviction of the accused for the offence u/s 8(C) r/w Section 20(B)(ii)(C) and also for offence u/s 22 of the Narcotic Drug and Psychotropic Substances Act, 1985 (for short, ''NDPS Act'') and imposing sentence of R.I. for 12 years and also fine of Rs. 1,00,000/-, in default further R.I. for 2 years.

The facts of the case, briefly stated, are that on 30.11.1999 a luxury bus coming from Bombay was checked at Bhilad check post and during the checking the accused, who was sitting on Seat No. 36, was found in possession of two packets containing some material of red colour. Therefore, he was asked to get down and when it was found that it was charas, the Superintendent of Customs, Valsad, was informed and muddamal charas weighing 4 kg. 400 g. was seized from the accused for which pannchnama, exh. 18, was made. Thereafter, sample was taken and sent to the FSL. It is the case of the prosecution that when the accused who was in the said luxury bus was asked to get down and was found prima facie in possession of the contraband article, which on smelling was found to be such contraband material, search and seizure was made as per the provisions of the NDPS Act and the panchnama with regard to the search and seizure was also made and the accused was also arrested for the alleged offences under the NDPS Act. On the basis of the complaint, the offence came to be registered as (old) NDPS Case No. 13/2000 which was thereafter registered as (new) NDPS Case No. 4/2002 for the alleged offence u/s 8(C) r/w Section 20(B)(ii)(C) of the NDPS Act. The learned Addl. Sessions Judge, Fast Track Court, Valsad framed the charge for the aforesaid offence against the accused and proceeded with the trial.

In order to bring home the charges levelled against the accused, the prosecution examined the witnesses and also produced the documents. After recording of the evidence of the prosecution witnesses was over, the learned Addl. Sessions Judge recorded further statement of the accused u/s 313 of the Code of Criminal Procedure, 1973.

After hearing the learned APP as well as the learned advocate for the defence, the learned Addl. Sessions Judge, Fast Track Court, Valsad convicted the accused for the alleged offences u/s 8(C) r/w Section 20(B)(ii)(C) of th NDPS Act and sentenced him to rigorous imprisonment for 12 years and also fine of Rs. 1 lakh and in default further R.I. for 2 years.

It is this judgment which has been assailed on various grounds, inter alia, that the mandatory provisions have not been followed and the learned Judge has materially erred in appreciating the evidence.

However, at the time of hearing of this appeal, learned advocate Ms. Chetna Joshi did not press any of the contentions or the grounds and after some arguments she only submitted that the accused, who has not paid the fine up till now, is ready to pay the fine and as he is only a small carrier and the facts and circumstances in which he was trapped, she submitted that while recording the conviction the learned Addl. Sessions Judge has imposed R.I. for 12 years instead of the statutory minimum sentence of 10 years which may be considered and the sentence may be altered only to that extent and only minimum sentence of R.I. for 10 years for the aforesaid offence may be modified instead of R.I. for 12 years. She further submitted that the accused has already undergone and served sentence for more than 9 years and therefore she has only pressed for modification of the sentence and that too instead of R.I. for 12 years sentence may be altered to R.I. for 10 years or any appropriate sentence on payment of fine.

Learned APP Mr. Raval submitted that it is a crime against the society and therefore as the conviction has been recorded, the sentence may not be modified. However, it was submitted that imposition of appropriate sentence would be a discretion of the court and the court can modify the sentence looking to the facts and circumstances in each case.

Therefore, on re-appreciation and scrutiny of the evidence and also in view of the fact that learned advocate Ms. Joshi has not pressed on merits any of the grounds or contentions raised in this appeal and has only submitted for modification of the sentence and also considering that he is a poor person and he has been made a scapegoat and therefore though the conviction is required to be maintained, while imposing sentence these aspects are required to be considered.

Even the Legislature, by NDPS (Amendment) Act, 2001, has introduced the definition of ''small quantity'' and ''commercial quantity'' and has thereby classified the offences providing proportionate punishment depending upon the quantity of contraband involved in the offence. For offence involving contraband lesser than commercial quantity but greater than small quantity, punishment may extend to R.I. for 10 years and with fine which may extend to one lakh rupees. For the offence involving commercial quantity severe punishment of not less than 10 years but which may extend to 20 years and with fine which may be one lakh rupees which may extent to two lakh rupees have been provided.

Thus, there is no quarrel that the NDPS Act provides for deterrent punishment policy and in fact the amendment which has been brought about has been made to make the provisions more effective for such offences in line with the international conventions.

Therefore, considering the gravity of the punishment, the paramount consideration is the proportion of punishment which the legislature has, as stated above, classified. In the facts of the present case, while maintaining the conviction, keeping in mind that the minimum sentence provided is R.I. not less than 10 years, the sentence could be altered from R.I. for 12 years to R.I. for 10 years inasmuch as the minimum sentence provided is R.I. for 10 years.

It is in these circumstances we are of the opinion that, considering the NDPS (amendment) Act, 2001 and also the proportionate punishment depending upon the quantity of the contraband article provided by the legislature and considering the fact that the conviction and minimum sentence is thus maintained, discretion could be exercised to modify only the sentence to a limited extent from R.I. for 12 years to R.I. for 10 years.

Accordingly, the present appeal stands allowed partly only qua the modification of sentence. The impugned judgment and order dated 31.3.2004 recording conviction of the accused for the offences u/s 8(C) r/w Section 20(B)(ii)(C) of NDPS Act passed by the learned Addl. Sessions Judge, Fast Track Court, Valsad in (New) NPDS Case No. 4/2002 [(Old) NPDS Case No. 13/2000)] is confirmed. However, the sentence shall stand modified or altered to R.I. for 10 years instead of R.I. for 12 years with payment of fine of Rs. 1,00,000/-.