STATE OF GUJARAT Vs. SHAFDARHUSSAIN MUNIRMIYA MALEK

JUDGEMENT

(1.) SHAFDAR Hussain Munirmiya Malek is the appellant in Criminal Appeal No. 409/2012, whereas State of Gujarat is appellant in cross Criminal Appeal No. 1050/2011. Thereby in both the appeals, the impugned judgment and order is common, which is dated 4/6/2011 in Special Case [NDPS] No. 5 of 2008. By such judgment, the Special & Addl. Sessions Judge, Vadodara has convicted Shafdar Hussain Munirmiya Malek under section 21 [b] of the Narcotic Drugs & Psychotropic Substances Act [for short 'NDPS Act'] and sentenced him to undergo rigorous imprisonment [RI] for five years and fine of Rs.10,000/ - and in default of payment of fine, further imprisonment for six months. Ld. Sessions Judge has also given set off period for which appellant was in jail pending trial.

(2.) HEARD Ld. Advocate Mr. RM Agrawal for the convict appellant and Ld. APP Ms. Jirga Jhaveri for the respondent ­ State. Ld. Advocate Mr. Agrawal has without entering into the factual details of the case, straight away submitted that since period of conviction, as awarded by the Sessions Court, has almost come to an end inasmuch as the incident and arrest was in the month of June 2008, considering the total sentence of five years and six months if the fine is not paid, now only couple of months remains in completing the sentence and, therefore, while relying upon the reported cases of Pratapbhai Surjibhai Dodiya v/s. State of Gujarat reported in 2011 Cr. L.R. [Guj] 585 and Chandrasingh @ Bharat Maansingh Waghela reported in 2011 Cr. L.R. [Guj.] 402 rendered by the Division Bench of this Court, he seeks indulgence of this Court to consider the present case as squarely covered by such reported cases and thereby to minimize the sentence of the convict.

(3.) BEFORE entering into the minute details of the case, considering the submission advanced by Ld. Advocate Mr. Agrawal for the appellant convict, it would be appropriate to examine the legal issue first. If we peruse the cases cited by Mr. Agrawal, it becomes clear that the Division Bench in above referred both cases, has categorically held that if purity test of the material seized as a narcotic substance is not carried out and thereby if actual quantity or percentage of narcotic substance is neither disclosed nor proved on record, then the benefit has to go to the accused as laid down by the Hon'ble Apex Court in the case of E. Micheal Raj v. Intelligence Officer, Narcotics Control Bureau reported in [2008] 5 SCC 161. Thereby in such cases, the quantity which was seized from the accused person is to be treated by one step down.