Shahejadkhan Mahebubkhan Pathan vs State of Gujarat

Y.B. Bhatt, J.—These are two appeals at the instance of the appellants-original accused who have been tried and convicted by the Additional Sessions Judge, Ahmedabad Sessions Court, in Sessions Case No. 381/2000, convicting the two accused u/s 8(c), 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced each of the two appellants to rigorous imprisonment for 15 years and fine of Rs. 1,50,000/- in default rigorous imprisonment for three years. In this context we have heard the learned counsel for the appellant, carefully perused the impugned judgment and we have also referred to such evidentiary material on record to which our attention has been drawn.

At the outset we may note that the accused were apprehended on the basis of advance intimation, and this advance intimation was reduced by the police officer in writing and forwarded to his superior officer. There is no controversy on this point.

Furthermore, both the accused were, prior to the search, informed of their right to be searched in the presence of a Magistrate or a superior officer, which right both the accused refused to exercise. This has also been reduced in writing. The two accused were apprehended and on a search revealed in all 500 grams of brown sugar. There is no controversy that this is a narcotic substance not being a drug or medical preparation.

As a result of the hearing and discussion, learned counsel for the appellant could not advance any legitimate criticism as regards the procedure pertaining to search, seizure and other aspects of the investigation, nor any aspects of the test reports of the Forensic Science Laboratory.

Learned counsel for the appellant ultimately resorted to the plea that on the facts and circumstances of the case the sentence imposed is excessive. In this context there is no controversy that the quantity found was of commercial quantity. Under the circumstances the relevant provision as regards the sentence would be section 22(c) of the NDPS Act, as amended by Act No. 9 of 2001 (which came into effect on 9th May 2001 and would apply to all pending cases on that day). In this context section 22(c) provides for imprisonment for a term not less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extent to two lakh rupees. In the instant case we find that the punishment imposed both in terms of imprisonment as also as regards fine is exactly between the minimum and the maximum prescribed by law. This cannot in any manner be said to be excessive, particularly where the narcotic substance found was of commercial quantity. In the premises aforesaid, we find that there is no substance in these appeals and the same are therefore dismissed.