DINESHWARSINH KESHUSINH BHOGTA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) CHALLENGE in this appeal is to the judgment and order dated 26/4/2005 rendered by the Ld. Special Judge, F.T.C. No. 2, Bhavnagar, in Special [NDPS] Case No. 5 of 2005, whereby the appellant, who was original accused no. 1 in the said Special Case, came to be convicted for the offences punishable under sections 20 [b][ii][B], 29 read with section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 [hereinafter referred to as 'NDPS Act'] and was sentenced to undergo rigorous imprisonment [RI] for 10 years and fine of Rs.1 lac and in default of payment of fine, simple imprisonment [SI] for 12 months.

(2.) THREE accused persons, namely appellant accused no. 1 Dineshwarsing Keshusing, original accused no. 2 Pankaj Yadav and original accused no. 3 Tinku alias Pintu Sharma came to be tried in the aforementioned special case for the offences under the NDPS Act.

(3.) MS. Sadhna Sagar, Ld. Advocate for the appellant accused, at the outset, submitted that considering the over-all evidence on record, the appellant accused no. 1 does not challenge his involvement in the offence and, therefore, his conviction is not assailed. However, MS. Sagar submitted that the appellant original accused no. 1 only requests for reduction of sentence and the appeal is, therefore, confined only to the count of sentence. She submitted that as per the case of the prosecution, from the possession of the appellant, Ganja weighing 1 Kg and 950 Grams came to be seized. She drew our attention to serial no. 55 in the Schedule attached to the NDPS Act pertaining to Ganja, wherein it is stated that the possession of Ganja upto 1 Kg is considered to be small quantity and the possession of Ganja weighing 20 Kgs and more is considered to be commercial quantity. Since in the instant case, the Ganja weighing 1 Kg and 950 Grams came to be seized, MS. Sagar submitted that thus the quantity of Ganja seized in the instant case is lesser than commercial quantity, but greater than small quantity and she drew our attention to the punishment prescribed under section 20 [b][ii][B] of the NDPS Act, wherein it is provided that if the contravention relates to quantity lesser than commercial quantity but greater than small quantity, then the punishment prescribed is RI for a term which may extend to 10 years and fine which may extend to Rs.1 lac. Thus, it is submitted that for intermittent custody of Ganja which is lesser than commercial quantity but greater than small quantity, the maximum sentence of imprisonment prescribed is RI for 10 years and the maximum fine is prescribed to be Rs.1 lac and no minimum sentence or any minimum fine is prescribed. MS. Sagar in this connection drew our attention to the impugned judgment and order rendered by the trial Court and submitted that the trial Court awarded the maximum sentence of imprisonment of RI for 10 years and fine of Rs.1 lac to the appellant accused by coming to the conclusion that the same sentence was the minimum sentence prescribed under the Act. She, therefore, submitted that the trial Court has committed serious error of law which has resulted into injustice and great prejudice to the appellant accused. She submitted that as per the jail remark sheet, the appellant accused has undergone, by now, about 6 years and 10 months in jail and in jail his conduct is reported to be good. MS. Sagar submitted that the appellant accused hails from socially and economically backward strata of society and financially he is a poor person and he is not in a position to pay fine of Rs.1 lac. Ultimately, MS. Sagar, Ld. Advocate for the appellant accused submitted that considering the facts and circumstances of the case, the period of about 6 years and 10 months which has been undergone by the appellant accused in jail may be considered to be his adequate sentence of imprisonment and further requested that the amount of fine may be adequately reduced.