Vijay Giri Dharamnath Giri vs State of Gujarat

Z.K. Saiyed, J.—The present appellant has preferred this appeal u/s 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 31.1.2006 passed by the learned Addl. Sessions Judge & Presiding Officer, Fast Track Court No. 2, Ahmedabad city in Sessions Case No. 369/2004,whereby, the learned Judge has convicted the appellant u/s 8(C) and 20 of the NDPS Act and sentenced to undergo imprisonment of 7 years R/I and to pay a fine of Rs. 75,000/- in default, to undergo further R/I for three years, which is impugned in this appeal.

The brief facts of the prosecution case is as under:

That on 4.8.2003, PSI, Mr J.M. Bharwad, the complainant, had received a secret information from his informer that one person namely Vijay Giri and other Shashikant @ Babu Sahed, resident of Bharwad Vas, Chhaganbhai Bharvad''s house, were dealing with the business of Charas and Ganja. The Complainant states that after receiving the said secret information, the complainant had informed his superior officer Mr Chaudhary and 2nd PI Mr Parmar for taking permission for raid and also prepared a panchnama for the same. Thereafter, they called the panch witnesses and prepared for the raid as per the information. As per the complainant, after completing all the formalities, they raided the house of the appellant and at the time of raid, the appellant was stand out of the said room. As per the case of the prosecution, that at that time, from the house of the appellant from one galvanized plastic drum (pip) charas weight 522 grams and Ganja weight 11640 grams were found. That after drawing necessary panchnamas and other formalities of investigation, seized the said muddamal contraband Charas and Ganja and other material from the place of the muddamal contraband recovered.

That after complied with all the mandatory provisions of the NDPS Act, a complaint was came to be filed by the complainant vide Prohibition CR No. 5208/2004 with Vatva Police Station for the offence punishable u/s 8(C), 20, 22, 23 and 29 of the NDPS Act. The statements of the witnesses were recorded and on completion of the investigation, charge-sheet was filed in the Court of learned Principal Sessions Judge, City Sessions Court, Bhadra, Ahmedabad, which was given number as Sessions Case No. 369/2004.

Thereafter, the charge was framed at Ex. 2 against the appellant. The appellant - accused has pleaded not guilty and claimed to be tried.

In order to bring the home the charge levelled against the appellant-accused, the prosecution has examined the following witnesses:

PW-1 Mr JM Bharawad Ex. 6

PW-2 Pravinbhai Dahyabhai Patel, Ex. 9

PW-3 Nayankumar Natvarlal Soni, Ex. 16

PW-4 Ilyasbhai Gulammahmad Malek, Ex. 50

PW-5 Vinaybhai Navanbhai Chaudhary Ex. 20

PW-6 Dilipsinh Jogaji Vaghela Ex. 21

PW-7 Nareshkumar Dalabhai Vaghela Ex. 23

PW-8 Pradipsinh Sukhdevsinh Gohil Ex. 29

PW-9 Gauridatt Dayanidhi Sharma Ex. 30

PW-10 Madhusudan Paragbhai Chaudhary Ex. 33

PW-11 Shankarsinh Mangalsinh Parmar Ex. 35

Satiskumar Manilal Chaudhary Ex. 47

The prosecution has also produced documentary evidence before the trial Court, which are as under:

Complaint Ex. 8

Weight certificate Ex. 17

Search memo Ex. 12

Letter Ex. 37

Seizure memo Ex. 38

Arrest memo Ex. 39

Report and letter to FSL Ex. 31

Report of I.O. Ex. 22

FSL report Ex. 34

Note of information Ex. 36

Letter to Superior Officer with regard to raid Ex. 46

Receipt of FSL Ex.48

Forwarding letter Ex. 49

Letter Ex. 50

Letter to superior officer Ex. 51

Letter of Superior Officer Ex. 52

Electric bill of place of offence Ex. 53

Panchnama of scene of offence place Ex. 42

Letter Ex. 42

Ravangi nondh Ex. 40

Copy of station diary Ex. 26

Copy of muddamal register Ex. 27

Thereafter, after examining the witnesses, further statement of the appellant-accused u/s 313 of CrPC was recorded in which the appellant-accused has denied the case of the prosecution.

After considering the oral as well as documentary evidence and after hearing the parties, learned Judge has vide impugned judgment and order dated 31.1.2006 held the appellant - accused guilty to the charge levelled against him u/s 8(C) and 20 of the NDPS Act and convicted and sentenced the appellant accused, as stated above.

Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Addl. Sessions Judge, Ahmedabad City, the present appellant has preferred this appeal.

Heard Ms. Rekha Kapadia learned advocate for the appellant and Mr HH Parikh learned APP for the respondent-State.

Ms. Kapadia learned advocate for the appellant has fairly admitted that she is only arguing the matter on the point of quantum of punishment and not arguing the matter on merits. She has read the evidence of Jagubhai Malabhai Bharwad, complainant Ex. 6 and recovery panchnama Ex. 10 and contended that looking to the mandatory provisions of NDPS Act, the present appellant is entitled to get the benefit of the said provisions. She has also contended that looking to the age of the present appellant, a very harsh conviction has been imposed upon him by the learned Judge, which is required to be reduced. She has also contended that the appellant-accused was arrested on 28.10.2004 and from his possession, Ganja of 11640 grams and Charas of 522 grams were recovered. In that view of the matter, the period of sentence is very harsh and looking to the age of the appellant, he has undergone the sentence of 5 years and 10 months. She has further contended that the appellant is a very poor person and is unable to pay Rs. 75000/-, the amount of fine, and prayed to quash and set aside the order of payment of fine.

On the otherside, learned APP Mr H.H. Parikh has read the impugned judgment and order of conviction and sentence passed by the learned Judge and contended that the impugned judgment and order is required to be confirmed.

I have gone through the oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witness-complainant and also perused the charge framed against the appellant. Looking to the allegations levelled against the present appellant, they are very serious in nature and the offence is under NDPS Act which requires to be handled with heavy hands, but when sufficient period of sentence is already undergone by the present appellant, then, I am of the opinion that looking to the poverty of the appellant and when he is unable to pay the amount of fine, then, this is a fit case to consider the submissions of the learned advocate for the appellants. In that view of the matter, when the learned advocate Ms Kapadia appearing for the appellant is not arguing the matter on merits but arguing the matter on the point of quantum of punishment, I am of the opinion that this is a fit case to reduce the sentence.

In the result, this appeal is partly allowed. The impugned judgment and order of conviction dated 31.1.2006 passed in Sessions Case No. 369/2004 by the learned Addl. Sessions Judge & Presiding Officer, Fast Track Court No. 2, Ahmedabad convicting the appellant-accused u/s 8(c) and 20 of the NDPS Act is hereby confirmed. However, the order of sentence sentencing the appellant-accused to undergo R/I for 7 years for the aforesaid offence, is hereby modified to the extent that instead the appellant-accused is hereby sentenced to undergo the period of sentence already undergone. So far as the order of payment of fine is concerned, the same is hereby quashed and set aside. The fine if paid, be refunded to the appellant-accused. The appellant is ordered to be set at liberty forthwith, if he is not required in any other case.