Mehmuda vs State of Gujarat

J.C. Upadhyaya, JJ.—The challenge in this appeal is to the impugned judgment and order dated 26/3/2007 rendered by Ld. Special Judge [NDPS], Surat, in Special [NDPS] Case No. 9 of 2002, whereby the Appellant original accused came to be convicted for the offence punishable u/s 22 read with Section 8[c] of the Narcotic Drugs and Psychotropic Substances Act, 1985 [herein after referred to as ''the NDPS Act''] and was sentenced to undergo rigorous imprisonment [RI] for 10 years and fine of Rs. 1,00,000/- and in default of payment of fine , RI for 2 years.

The prosecution case in nut-shell, is that Jasvidarsinh Dharamsinh Ramgadhiya was serving as Police Inspector in Salabatpura Police Station, Surat City, received an information at about 14-00 hours on 10/8/2002 that the lady accused had kept Brown Sugar in her home situated in the area called Indarpura at Surat and was doing business of selling the same. Upon receipt of such information, the information was reduced into writing and was forwarded to his higher officer and thereafter, panchas were called. Preliminary panchnama was drawn and Police Inspector Mr. Ramgadhiya along with two panchas and other police personnel including a lady constable left the police station for the raid. After they reached to the place of information, the lady accused was found in her home. She was informed about the information which had been received and she was further informed that it was necessary to search her house including her person and if she desires that some Gazetted Officer or Magistrate should be kept present at the relevant time, then she had the option to request so, to which she did not opt for the same. When the personal search of the lady accused through lady panch Kavitaben and lady constable Ashaben was made, one packet covered under a plastic was found. Through the checking by mobile FSL, the contents in the packet was found to be Brown Sugar [Heroin], weighing 89 Gram and 450 Miligram. Samples were collected out of the contraband article and were sealed and packed. Detailed panchnama was drawn in the house of the accused. P I Mr. Ramgadhiya lodged FIR regarding the offence and his FIR was registered. During the course of police investigation, statements of material witnesses were recorded and samples were forwarded to the FSL, FSL report was collected and after conclusion of the investigation, charge-sheet came to be filed in Special Court [NDPS], Surat.

The trial Court framed charge against the accused at exh. 4, to which she did not plead guilty and claimed to be tried. Thereupon, the prosecution examined 10 witnesses detailed in para. 5 in the impugned judgment as well as produced 20 documents detailed in para. 6 in the impugned judgment. After the prosecution concluded its evidence, the trial Court recorded further statement of the accused u/s 313 of the Code of Criminal Procedure and the accused in her further statement denied generally all the incriminating circumstances put to her by the trial Court emerged from the evidence on record and stated that she was falsely implicated in this case.

After considering the oral and documentary evidence on record and after hearing submissions advanced on behalf of both the sides, the trial Court came to the conclusion that the prosecution successfully proved its case beyond any reasonable doubt and ultimately, recorded conviction of the accused and awarded sentence as hereinabove referred to in this judgment.

Mr. R.M. Agrawal, Ld. Advocate for the Appellant accused, at the outset, submitted that he does not challenge the order of conviction on merits. However, he submitted that looking to the quantity of the contraband article Heroin recovered from the accused, which is 89 gram and 450 miligram, the maximum sentence being RI for 10 years and maximum fine being Rs. 1 lac imposed on her is disproportionate to and is not commensurate with the quantity of contraband article recovered from her. Mr. Agrawal at the first instance, drew our attention to serial No. 56 in the table contained under the notification specifying small quantity and commercial quantity pertaining to heroin, wherein the small quantity is stated to be upto 5 Gram and commercial quantity is stated to be 250 Gram and more. Mr. Agrawal, Ld. Advocate submitted that in the instance case, the quantity seized is more than small quantity, but much lesser than commercial quantity, which is intermittent quantity. Mr. Agrawal then drew our attention to Section 22 sub-clause [b] of the NDPS Act, wherein it is stated that where the contravention involves quantity less than commercial quantity, but greater than small quantity, the punishment prescribed is RI for a term which may extend to 10 years and with fine which may extend to Rs. 1 lac. On the above premises, Mr. Agrawal submitted that in the instant case, the trial Court awarded the maximum punishment prescribed without assigning any reason.

5.1. Mr. Agrawal, Ld. Advocate for the Appellant accused submitted that the Appellant -accused is undergoing sentence since last 8 years and 11 months. Mr. Agrawal, therefore, urged that in the instant case, the period undergone by the Appellant accused in the jail may be her sufficient and adequate sentence and considering the poor financial position of the lady accused, fine may be suitably reduced. In support of the above submission, Mr. Agrawal relied upon a case of Prakash Mangilal Dalaji Dalsaniya v. The State of Guajrat decided by this Court on 30/6/2010 in Criminal Appeal No. 485 of 2007.

Mr. Kartik Pandya, Ld. APP for the Respondent - State vehemently opposed this appeal as well as the submissions made by Ld. Advocate Mr. RM Agrawal for the Appellant - accused about reduction of sentence. However, it was submitted that there cannot be any dispute that the quantity of contraband article seized from the accused was greater than small quantity, but lesser than commercial quantity and, therefore, Section 22[b] of the NDPS Act would apply for awarding appropriate punishment and there is also no dispute that in the instant case, the trial Court awarded the maximum sentence of imprisonment and the maximum fine prescribed.Mr. Pandya, Ld. APP submitted that considering the nature of offence so also the seriousness of the crime, there is no reason to reduce the punishment awarded to the Appellant - accused.It is, therefore, submitted that the appeal may be dismissed.

We have given our anxious considered thought to the rival submissions made by the learned advocates appearing for the parties with regard to awarding of sentence when the quantity of contraband article seized is less than commercial quantity.

In the case of Balwinder Singh v. Asstt. Commissioner, Customs and Central Excise (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. (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 Hon''ble the Apex Court in the above referred decision is squarely applicable to the facts of the instant case. In the instant case, as per the case of the prosecution, contraband article weighing 89 Gram and 450 Miligram Brown Sugar [Heroin] came to be recovered. Now as per serial No. 56 in the table, small quantity is defined upto 5 gram and the commercial quantity is defined 250 Gram or more of heroin. In the instant case, the quantity seized is intermittent quantity, namely greater than small quantity and lesser than commercial quantity. In that case, considering Section 22[b] of the NDPS Act, the maximum sentence prescribed is RI for a term which may extent to 10 years and the maximum fine prescribed is upto Rs. 1 lac. No minimum sentence of imprisonment or fine is prescribed as the same is prescribed for the commercial quantity.In the instant case, perusing the impugned judgment and order rendered by the trial Court and more particularly para. 40, it clearly transpires that the trial Court observed that the quantity seized from the possession of the accused was greater than small quantity, but lesser than commercial quantity. The trial Court then observed that considering the punishment prescribed for such contravention, adequate sentence was required to be imposed and ultimately, as stated above, awarded the maximum term of imprisonment and the maximum fine. The trial Court while exercising the discretion in awarding maximum sentence of imprisonment and the maximum fine, no sufficient reasons are assigned.

Seen in the above context, the sentence imposed on the Appellant - accused deserves to be adequately modified by partly allowing this appeal. We are of the considered opinion that when the Appellant - accused is already undergoing sentence since last 8 years and 11 months, the period undergone by her in the jail can definitely be said to be adequate sentence.Considering the submissions advanced regarding the poor financial condition of the Appellant - accused, so also considering the period of imprisonment already undergone by her in the jail, we are of the opinion that the fine of Rs. 25,000/- and in default of payment of fine, simple imprisonment [SI] for two months would serve 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. 9/2002 by the Ld.Special Judge [NDPS], Surat, against the Appellant - accused is confirmed and maintained. However, while upholding the conviction of the Appellant - accused u/s 22 read with Section 8[c] of the NDPS Act, the sentence already undergone by the Appellant - accused in the jail shall be her sentence of imprisonment and the Appellant - accused shall pay fine of Rs. 25,000/- [Rupees twenty five thousand only] and in default of payment of fine, SI for two months. In light of this, the sentence awarded by the trial Court shall stand set aside.