Rajesh vs State of Gujarat

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R.M. Chhaya, J.—This appeal is directed against the judgment and order of conviction and sentence dated 22.06.2006 passed by learned Presiding Officer and Additional Sessions Judge, 6th Fast Track Court, Gondal camp at Jetpur, in Sessions Case No. 46 of 2005, whereby the appellant came to be convicted for the offences punishable under Sections 8 read with Sections 21(b) and 22(B) of the Narcotic Drugs Psychotropics Substance Act ("the NDPS Act" for short) and was sentenced for 10 years rigorous imprisonment and fine of Rs. 1,00,000 (Rupees One Lac) and in default, to undergo further 1 year simple imprisonment. The learned Judge has also passed an order that period that the appellant-accused spent in judicial custody, shall be given set off.

The brief fact of the prosecution case is that one Mr. S.O. Vadher, Police Sub-Inspector, Jetpur Taluka Police Station, filed a complaint, inter alia, stating that on 05.05.2005 at 3:00 hours, he received an information that one Rajesh @ Ganga Thakor working as labourer in the Sarighat situated at the field of Jagabhai Bhambhar at Jetpur village was carrying intoxicating substances in his possession for sale. On receiving the said information, after calling the Police Inspector, Executive Magistrate and other police personnel and two panchas after following necessary procedures and preparing preliminary panchnama and making sure that none of the members of raiding party have any intoxicating substance in their possession, along with the members of raiding party, raided the aforesaid field. On seeing the police, the accused started running away and therefore, they caught the present appellant and after explaining and making him understand about the provisions of law, on searching the accused, below the pillow where he was sleeping a black color bag was found, wherein two packets of narcotic substance was found. Thereafter, in the presence of panchas weighing the same and it was found there was 980 grams narcotics substance. It further appears that the officer of the FSL authority was called and on examination of the said substance, the said officer declared it as Charas.

It further appears that two samples of 10 grams each were prepared out of those packets and were sent for its analysis to the FSL and on this basis, the appellant came to be arrested. It further appears from the record that the FSL report opined that the substance was found to be Charas. Thereafter, the case was committed to the Sessions Court as Sessions Case No. 46 of 2005 and charge came to be framed at Exh. 5 and as the appellant did not plead guilty, trial was conducted.

The learned Judge after considering the evidence on record by both the sides, convicted the appellant for the offences punishable under Sections 8 and 22 of the NDPS Act, was sentenced as aforesaid.

Learned counsel for the appellant has taken this Court through the evidence on record as well as the judgment impugned in this present appeal. Seizure Panchnama at Exhs. 14 and 16 as well as deposition of PW. 1 Exh. 8 Subhashbhai Odhanbhai Vadher, Police Sub-Inspector clearly proves the fact that the appellant was found in possession of 980 grams of the narcotic substance. FSL report at Exh. 30 also indicates that the substance recovered from the appellant was Charas.

Though the learned counsel for the appellant initially raised contention to the effect that the sample was not properly taken as there was no weighing stone for measuring except measuring stone of 500 gms., and 1 Kg., no other measuring stones available with the person, who was called to weigh the substance, and learned counsel for the appellant has also relied upon deposition of Rajabhai Muljibhai Ribadiya at Exh. 22.

Have perused the record and proceedings and paper-book containing evidence adduced before the learned Trial Court.

Learned counsel for the appellant at the outset submitted that he does not press the appeal on merits so far as the conviction is concerned. It was further submitted that the appellant is a very poor person and comes from U.P. He was working in agricultural field as a labourer and he is in jail since more than 9 years. Learned counsel for the appellant submits that it is the first offence of the appellant and therefore, this Court may kindly be pleased to reduce the sentence considering the facts and circumstances of the case. Learned counsel for the appellant has also relied upon the judgment of this Court rendered in Pavankumar @ Pavan Jinduram Thakur Vs. State of Gujarat, 2008 Lawsuit (Guj.) 1848, wherein under similar circumstances, the sentence came to be reduced.

Per contra, learned Additional Public Prosecutor has supported the judgment under challenge. It was submitted that the appellant was found in possession of sizable quantity of 980 grams charas and the Trial Court has rightly imposed the sentence, which is within the permissible as provided under Section 22 of the NDPS Act. Learned Additional Public Prosecutor therefore, submitted that this is not a fit case where this Hon''ble Court may interfere in its appellate jurisdiction. On instructions, it was further candidly submitted that the present offence is first offence of the present appellant.

Taking into consideration the judgment of this Court rendered in the case of Pavankumar (supra), wherein in para-7, this Court has relied upon the judgment of the Apex Court reported in Balwinder Singh and Another Vs. Asstt. Commissioner, Customs and Central Excise, as well as the judgment of this Court passed in Criminal Appeal No. 1229 of 2004 dated 04.04.2008. This Court (Coram: Akil Kureshi, J.) has taken into consideration the fact that the accused was very poor person and was pleased to reduce the sentence from 6 years to 4 years. While confirming the conclusion as well as the finding, was pleased to further reduce the sentence of default from 6 months to 3 months simple imprisonment. In facts of this case, similar view is required to be taken.

Upon consideration of the evidence on record, the appellant was found with the narcotic substance weighing 980 grams. The said substance is less than commercial quantity and more than small quantity. In the facts and circumstances of this case and taking into consideration the fact that the appellant is a poor person and it is his first offence as well as considering the judgments cited, interest of justice would be met if the sentence is required to be suitably reduced. Learned Additional Public Prosecutor on verification of the jail remarks has stated that out of 10 years of sentence, the appellant has already undergone 9 years and three months.

In the result, the appeal is partly allowed. The judgment and order of conviction and sentence dated 22.06.2006 passed in Sessions Case No. 46 of 2005 by learned Presiding Officer and Additional Sessions Judge, 6th Fast Track Court, Gondal camp at Jetpur against the appellant is confirmed, however, the sentence stands modified to the extent that the sentence imposed upon the appellant to suffer rigorous imprisonment of 10 years and fine of Rs. 1 lac and in default to undergo simple imprisonment of one year, is hereby altered as already undergone. The rest of the judgment and order of conviction remains unaltered. Accordingly, the appellant be released if not required in any other case. Record and Proceedings be sent back to the Trial Court forthwith.