Somnath Rajendranath Saipanth vs The State of Gujarat

Z.K. Saiyed, J.—The Appellant - original accused has filed this Appeal u/s 374 of Code of Criminal Procedure against the judgment and order of conviction and sentence dated 11.08.2006 passed by the learned Additional Sessions Judge, Court No. 18, City Civil & Sessions Court, Ahmedabad, in Sessions Case No. 262 of 2006, whereby the learned Addl. Sessions Judge has held the Appellant - accused guilty for the offences punishable under Sections 8(c), 20(B), II(B), 22 and 29 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (for short "NDPS Act") and sentenced him to suffer Rigorous Imprisonment for 5 years and to pay fine of Rs. 30,000/- i/d to further undergo SI for six months.

The brief facts of the case of prosecution are that on 28.6.2005 at night combing the Police Inspector Shri R.V. Rabari and his staff received the information that in the morning at about 8.00 A.M., one person, named, Somnath, wearing Kesari colour Jabbha and Dhoti, is reaching near Soni''s Chawl Char Rasta, Odhav, Ahmedabad with large quantity of Ganja. On receipt of such information P.I. Rabari made the entry in Station Diary and also informed his superior officer and thereafter he called the two panchas. The first part of the panchnama was prepared by the P.I. Thereafter the Police Inspector, along with the Staff and the Panchas, reached the place and kept watch. Thereafter, after about half an hour one person came who was stopped by the raiding party and on interrogation the said person was found with contraband articles. The police seized the said article Ganja and the sample was sent for analysis. Thereafter the offence under the provisions of the NPDS Act was registered against the Appellant - accused.

Necessary investigation was carried out by the Police. Offence under Sections 8(c), 20(B), II(B), 22 and 29 of NDPS Act was registered against the accused. The statements of the witnesses were recorded. Thereafter, after completion of investigation the charge-sheet against the accused came to be submitted before the Court. The learned Additional Sessions Judge framed the charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried.

To prove the case against the accused, the prosecution has examined the witnesses and also relied upon documentary evidence and at the end of trial, after recording the statement of the accused u/s 313 Code of Criminal Procedure, and after hearing the arguments on behalf of the prosecution and the defence, the learned Sessions Judge held the Appellant (original accused) guilty of the offence charged against him and awarded the sentence as narrated herein above.

Being aggrieved by and dissatisfied with the aforesaid judgment and order of conviction and sentence the Appellant - accused has preferred this Appeal.

Heard learned advocate Mr. P.K. Shukla, appearing on behalf of the Appellant - accused and learned APP Mr. H.L. Jani, on behalf of the respondent - State. I have gone through the judgment and order passed by the trial Court. I have also considered the documents produced on the record of the case.

Learned Advocate, appearing on behalf of the Appellant - accused, has contended that the Appellant - accused has not committed any offence as alleged in the charge. He has contended that looking to the oral as well as documentary evidence of the witness has not committed the offence alleged against him. He has contended that there are serious contradictions in the oral evidence of the witness. Learned Advocate has also contended that the accused has already undergone the sentence of five years awarded by the learned Additional Sessions Judge. He has contended that the learned Judge has also ordered to pay fine of Rs. 30,000/- and in default of fine the Appellant - accused should suffer SI for six months and at present the Appellant - accused is undergoing the sentence awarded by the learned Additional Sessions Judge in default of fine which also the Appellant has already undergone for more than a period of 3 months. The learned Advocate, therefore, contended that looking to the poor condition of the accused he is not in a position to pay the fine and when he has already undergone the sentence awarded by the learned Judge, therefore, some leniency may be shown towards the Appellant - accused.

Learned APP has supported the judgment and order passed by the learned Sessions Judge and contended that looking to the seriousness of offence no interference of this Court is called for. He has contended that looking to the facts and evidence on records the learned Judge has rightly held the accused guilty for the offence alleged against him and, therefore, no interference is called for.

I have gone through the judgment and order passed by the learned Additional Sessions Judge and also gone through the documents produced before me. I have also considered the submissions made by the learned Advocates for the parties. The learned APP has also produced the jail record of the Appellant - accused which shows that the Appellant - accused has alrready undergone the sentence of 5 years, 2 months and 3 days. The said Report is of 31.8.2010, that means the Appellant has completed the sentence of more than 5 years and three months. From the evidence on record it clearly appears that the learned Judge has not committed any error in holding the Appellant - accused guilty for the offences charged against him. However, looking to the facts and circumstances of the case, in my opinion, the sentence, in default of non-payment of fine, is required to be reduced. The learned Advocate appearing on behalf of the Appellant has also not argued the matter seriously on merit and contended that the Appellant - accused is an illiterate and poor person and he is the bread-winner of the family and, therefore, some leniency may be shown. Looking to the facts of the case if the sentence for non-payment of fine awarded by the learned Addl. Sessions Judge is reduced to 3 months, instead of 6 months, as ordered by the learned Judge, the same would serve the ends of justice.

In view of above, the Appeal is partly allowed. The judgment and order of conviction dated 11.8.2006, awarding substantive sentence passed by the learned Additional Sessions Judge, Court No. 18, Ahmedabad, in Sessions Case No. 262 of 2006 convicting the Appellant - accused for the offence under Sections 8(c), 20(B), II(B), 22 and 29 of the NDPS Act is hereby confirmed. However, the order of sentence to pay fine of Rs. 30,000/- i/d to undergo SI for 6 months is altered and reduced to the effect that in default of payment of fine the Appellant - accused shall undergo SI for three months, instead of SI for six months as ordered by the learned additional Sessions Judge. The Appellant - accused has already undergone the sentence and, therefore, he shall be set at liberty forthwith if he is not required to be detained in any other case. Rest of the judgment and order passed by the learned Additional Sessions Judge is confirmed. R & P to be sent back to the trial Court immediately.