Narcotics Drugs; Mangilal Jagmal Bishnoi Vs. State [Gujarat High Court, 13-10-2016]

Narcotics Drugs and Psychotropic Substances Act, 1985 – Ss.  8 (c) 17 & 29 – Small and Commercial Quantity – Principal of proportionality – Should be followed in deserving cases.

Quantity of contraband article ‘opium’ seized was weighing 1 kg and 430 gm. The punishment prescribed for possession of small quantity of contraband article ‘opium’ weighing 25 gm is one year while for possession of quantity less than the commercial quantity but greater than the smaller quantity, punishment prescribed is minimum of 10 years of rigorous imprisonment and fine. Thus, for possession of small and commercial quantity, punishment prescribed is a sentence extending from one year to ten years and fine. Thus, there is huge difference between possession of quantity of 1 kg and 430 gm and commercial quantity of 2.5 kg and therefore, in tune with the legislative intent, principle of proportionality between the small and commercial quantity should have been considered by the trial court while imposing sentence. It is to be noted that punishment prescribed for possession of commercial quantity of 2.5 kg is a sentence which is extended upto ten years and, therefore, for possession of 1 kg and 430 gm, which is little more than half of the commercial quantity 2.5 kg, the proportionate sentence awardable would be little more than half of the sentence of ten years. Interest of justice will be met if the sentence is reduced from ten years to five and half years i.e. 5 years and 6 months considering the fact that quantity of contraband article seized was 1 kg and 430 gm, which is little more than half of the commercial quantity of 2 kg and 500 gm. The appeal, therefore, requires to be allowed in part by reducing the sentence as aforesaid.

# Quantity of Contraband Article

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CORAM: HONOURABLE MR.JUSTICE G.B.SHAH

Date : 13/10/2016

CRIMINAL APPEAL (AGAINST CONVICTION) NO. 1302 of 2016

MANGILAL JAGMAL BISHNOI….Appellant(s)

Versus

STATE OF GUJARAT….Opponent(s)/Respondent(s)

Appearance: MR MADANSINGH O BAROD, ADVOCATE for the Appellant(s) No. 1; MR KL PANDYA, APP for the Opponent(s)/Respondent(s) No. 1

JUDGMENT

1. This appeal under section 374(2) of the Code of Criminal Procedure, 1973 filed by the appellant- original accused arises out of judgment and order dated 23.8.2016 passed by the learned Special Judge(NDPS), Gandhidham-Kachchh, in Special Case (NDPS) No.4 of 2012 whereby the appellant was convicted and sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/-, in default, to suffer further rigorous imprisonment for two years for the offence under section 8(c), which is punishable under sections 17 and 29 of the

# Narcotics Drugs and Psychotropic Substances Act, 1985

(hereinafter to be referred to as ‘theNDPS Act’ for short).

2. Facts, in nutshell, are that on a secret information having received on 9.5.2012 at 15.20 hours to the effect that one person namely, Mangilal Jagmal Bishnoi was selling contraband article ‘opium’ behind Natraj Hotel in a wooden cabin used by the appellant as a garage, a raid was conducted by the raiding party after following all required procedures, opium weighing 1 kg and 430 gm was seized and, therefore, FIR being Gandhidham ‘A’ Division Police Station N.D.P.S. C.R.No.2 of 2012 came to be lodged under the provisions of section 8(c), which is punishable under sections 17 and 29 of the NDPS Act. In pursuance of the said FIR, investigation started and as there appeared prima facie case against the accused, charge sheet was filed against the accused. As the offence was triable exclusively by the Special Court, the learned Magistrate committed the case to the Special Court. Thereafter charge was framed against the accused which was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried. Hence, the prosecution was asked to prove the guilt against the accused. To prove the case, the prosecution examined ten witnesses and produced and relied on several documentary evidence numbering ten. After filing of closing pursis by the prosecution, further statement of accused under Sec.313 of Cr.P.C. was recorded wherein he pleaded that false case has been filed against him. On conclusion of trial and upon hearing the learned advocates appearing for the respective parties, impugned judgment and order, as aforesaid in the earlier part of this judgement, was delivered by the trial court giving rise to the present appeal.

3. Heard learned advocate, Mr.Madansingh O. Barod, for the appellant-original accused and learned APP, Mr.K.L.Pandya for the respondent-State.

4. The appeal has been admitted by this Court vide order dated 21.9.2016 and on the same day, following order has been passed in the Criminal Misc. Application No.23494 of 2016 for suspension of sentence:

“1. The present application has been preferred by the applicant original accused under Section 389 of Criminal Procedure Code, 1973 for suspension of sentence imposed vide order dated 23.08.2016, passed by learned Special Judge (N.D.P.S.), Gandhidham, Dist: Kutch, in Special Case (N.D.P.S.) No. 04 of 2012, convicting the present applicant for the offences punishable under Sections 8(C), 17 and 29 of the Narcotic Drugs and Psychotropic Substances Act, and sentenced to undergo rigorous imprisonment for 10 years and a fine of Rs. 1,00,000/-in default thereof to undergo rigorous imprisonment of 2 years.

2. Heard learned advocate Mr. Madansingh Barod for the applicant and learned APP Mr. K. L. Pandya for the respondent – State.

3. Mr. Barod, the learned advocate for the applicant, has shown his willingness to proceed with the final hearing of the main appeal by producing the copies of relevant documents on which he relies, in the form paper book, supplying a copy of which in advance to the other side and accordingly, he does not press this application to which, Mr. Pandya, the learned Additional Public Prosecutor for the respondent – State, has no objection, however, he requested to call for the R & P from the learned Court below for better assistance.

4. It is a fact that number of appeals are pending before this Court, however, simultaneously it is also a hard reality that in most of the old matters, the respective learned advocates appear to have no interest and/or they choose not to remain present and if after the conditional orders passed by the Court they remain present, they ask for adjourning the matters, either on the ground that since long the concerned appellant has not contacted in spite of repeated reminders or on the other ground.

5. Accordingly, in the aforesaid view of the matter, Mr. Barod, the learned advocate for the applicant, is permitted to supply the relevant documents in the form of paper book, as aforesaid, furnishing the advance copy of the same to the other side. The registry is directed to call for the R & P from the concerned Court below, so as to reach this Court on or before 28.09.2016. The matter be listed for final hearing on 29.09.2016.

6. With, this, the present application is disposed of.”

5. When the appeal was taken up for final hearing on 29.9.2016, Mr. Madansingh O. Barod, learned counsel for the appellant produced relevant documents in form of paper book and Registry was directed to take the same on record. In light of the order dated 21.9.2016 passed below Criminal Misc. Application No.23494 of 2016, record and proceedings forwarded by the concerned Court were readily available with the Court and the same have been perused by the Court as well as the learned advocates appearing for the respective parties.

6. Mr. Barod submitted that a concocted and fabricated story has been created to falsely implicate the appellant in the case in question. He further submitted that the appellant was serving as a mechanic at the garage earning Rs.3000/- per month and was not having any conscious knowledge of the contraband article seized. He further submitted that the prosecution has failed to prove the aspects of recovery, discovery, panchnama and place of incident. He also submitted that there are contradictions in the evidence of panchas regarding panchnama of recovery and discovery. Drawing attention of this Court on the deposition of P.W.No.1-Kirangar Kishorgar Gusai at Exh.18, who is a panch witness, he submitted that said witness has not at all supported the case and thus, panchnama at Exh.19 has not been duly proved by the prosecution. He further submitted that prosecution has not thought it fit to examine second panch of said panchnama Exh.19 namely, Prakashbhai Nechaldas Chenani for the reasons best known to the prosecution. He further submitted that P.W.No.4-Shantilal Parsottambhai Soni, Exh.33, who was called by the member of the raiding party along with weighing machine to weigh the contraband article alleged to have been seized by the prosecution, has also not supported the case of the prosecution. He further submitted that considering the fact that all independent witnesses have not supported the case of the prosecution and in view of the vital contradictions forthcoming in the evidence of rest of the witnesses examined by the prosecution, who were the members of raiding party and were, as such, interested witnesses, this Court should not give much weightage on the evidence of rest of the witnesses, who were members of raiding party. He further submitted that mandatory provisions of section 42 of the NDPS Act do not appear to have been followed by the members of the raiding party.

6.1 He also submitted that if this Court is not inclined to interfere with the impugned judgment and order of conviction, the sentence awarded on the appellant may be reasonably reduced in proportion to the quantity of contraband article seized from the appellant in view of various decisions of the Hon’ble Supreme Court as well as this Court.

6.2 In this regard, he relied on a decision of the Hon’ble Supreme Court in the case of

# E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau reported in AIR 2008 SC 1720

wherein sentence was reduced from ten years to six years.

6.3 He further relied on the principle laid down by the Hon’ble Supreme Court in the case of

# Ghasita Sahu Vs. State of M.P. reported in AIR 2008 SC 1425

wherein sentence imposed on the accused was reduced from five years’ RI to the period already undergone by the accused for possession of 17 kg and 750 gm of contraband article ‘ganja’.

6.4 He further relied on the principle laid down by the Hon’ble Supreme Court in the case of

# Fakir Imamsha Davalsha v. State of Gujarat reported in 2011 JX(Guj) 955

wherein sentence imposed on the accused was reduced from 10 years’ RI to five years’ RI for possession of contraband article ‘ganja’ weighing 9 kg and 140 gm.

6.5 He also relied on the principle laid down by the Hon’ble Supreme Court in the case of

# Ashokkumar Balchand Umlani v. State of Gujarat reported in 2008 JX(Guj) 787

wherein sentence imposed on the accused was reduced from seven years’ RI to four years’ RI for possession of contraband article ‘ganja’ weighing 13 kg and 840 gm.

6.6 Relying on the aforesaid decisions, he submitted that even if the conviction is to be upheld, the trend of the court evident from the above mentioned authorities is to punish the accused in proportion to the quantity of contraband article seized from the accused. He further submitted that even the legislative scheme emphasizes on the sentence proportionate to the quantity seized and in the instant case, 1 kg and 430 gm of contraband article ‘opium’ was seized from the appellant as against the commercial quantity of 2.5 kg for which, punishment prescribed is imprisonment for a term which may extend to 10 years. He then submitted that for possession of such quantity i.e. 1 kg and 430 gm, a disproportionate sentence of 10 years was imposed by the trial court. He further submitted that the appellant has already undergone more than four years of imprisonment. He also submitted that the appellant has no antecedent and therefore, the appellant be awarded punishment in proportion to the quantity of contraband article seized from him.

7. Mr. Pandya, learned Additional Public Prosecutor, submitted that the trial court has appreciated oral as well as documentary evidence produced on record in correct perspective and held by elaborate reasons that the prosecution has proved the charge against the accused beyond reasonable doubt. He further submitted that almost all the witnesses have supported the case of the prosecution and their depositions are trustworthy. He further submitted that the appellant has been convicted and sentenced for the serious charge under the provisions of NDPS Act for possessing contraband article ‘opium’ which, if sold in the market, would seriously affect the health of the public at large and as the reasons given by and the findings arrived at by the trial court being just and proper, this Court should not interfere with the same in this appeal.

8. I have considered the above referred rival submissions made by learned advocates appearing for the parties. I have also gone through the impugned judgment and order of conviction and sentence together the principles laid down by the Hon’ble Supreme Court in the cases relied on by the learned advocate for the appellant.

9. The main witness examined by the prosecution is P.W.No.8-the complainant, Hardevsinh Karansinh Vaghela at Exh.43. He has deposed that on 9.5.2012 when he was discharging his duty as P.I. S.B., Gandhidham, Dist. Kachchh, a secret information was received to the effect that Mangilal Jagmal Bishnoi used to sell opium illegally in his cabin, which is located at Transport Nagar, behind Natraj Hotel on National Highway No.8. He recorded said information and sent to the Superintendent of Police, Kachchh(East), in a confidential cover. He, thereafter, told Kamleshbhai to prepare investigation kit and sent Ranjitsinh to bring panchas. Ranjitsinh brought two panchas, namely Kirangar Kishorgar Gosai, panch No.1 and Prakashbhai Nechaldas Chainani, panch No.2, who were informed about the secret information received through intelligence and asked them to act as panchas during the raid. As they showed willingness, they along with panchas searched the investigation kit and the government vehicle. Thereafter, as nothing objectionable was found, a primary panchnama was drawn from 11.15 hours to 11.50 hours and they reached at the said place in a government vehicle where a person was present in a wooden cabin. On asking his name, he stated his name to be Mangilal Jagmal Bishnoi in presence of the panchas. He, police and panchas were introduced and they informed him about the secret information received and offered him to conduct the search in presence of a Gazetted Officer or a Magistrate. As he did not opt for the same, he passed a resolution as per section 42 of N.D.P.S. Act to carry out search, in which, signatures of panchas were obtained. Upon search of his wooden cabin, a plastic bag of Khakhi colour was found from an iron box which contained one more plastic bag of Khakhi colour which was tied. When that was untied, a black thick semi-liquid substance was found which was having the smell of opium. When Mangilal was asked about it, he also stated it to be an opium. As the opinion of the officer of FSL was necessary in this regard, a wireless message was sent through government vehicle to send the officers of FSL to the place of raid. After sometime, Mr. Darji, FSL officer arrived at the place and he opined said muddamal to be opium. Mangilal was not having any licence, pass or permit to keep the same. Mohhamad Shabbir, a Head Constable, brought Shantilal Purshottambhai Soni with weighing machine and opium was found weighing about 1 kg and 430 gm costing Rs.71,500/-. Thereafter, two samples each of 50 gm were seized, which were sealed with the seal of P.I., L.C.B., Gandhidham, Kachchh(East) on which his signature and that of panchas were put. When he was further searched, Rs.640/- in cash and a copy of election card of Mangilal were found together with a mobile, white in colour of Lava company worth about Rs.1000/- having dual sim-card of Airtel Company. Seizure memo was prepared regarding mudammal seized and thereafter, he and the panchas put their signatures thereon and Mangilal was given its copy after obtaining his signature thereon. The certificate in respect of weighing was obtained from Shantilalbhai Soni, weighing person. Thereafter, report given by Mr.Darji, FSL officer, was attached with the case. A Yadi showing the reasons of arrest of Mangilal was prepared and in this regard, a detailed panchnama was drawn. He has further deposed that in the present case, he himself has become the complainant for the Government and handed over the complaint, panchnama, other papers, muddamal along with the accused to Shri Shailendrasinh Jadeja, PSO, ‘A’ Division Police Station with report to register an offence under sections 8(C), 17 & 29 of NDPS Act against the accused-Mangilal Jagmal Bishnoi and the accused Sukhram, residing at Rajasthan, who earlier delivered the opium. Thereafter, offence was registered as NDPS C.R. No. 02/12 at ‘A’ Devision Police Station and further investigation was handed over to PSI B.P.Vaghela. This witness has identified his signature put in the complaint and also the accused before the Court. Except that, the Yadi to register an offence and station diary have been produced at Exhs. 45 and 46 respectively. He has further deposed that panchnama was written in presence of the panchas and he and the panchas put their signatures therein. He has also identified signatures of the accused, panchas and weighing person. Further, this witness has produced certificate issued by Officer of FSL after examining the muddamal-Exh. 49. In addition, on showing muddamal article No.1, he has stated that it is the same opium which was seized from the accused. He has further stated that his signature and signatures of the panchas are there on the chit fixed on the muddamal article. He has also stated that the mobile phone, cash and election card are the same as were seized by him. It is true that this witness has admitted in his cross examination that no statement of either any person from the Nataraj hotel or any of the cabin holders situated nearby the cabin of the raid has been recorded.

10. P.W.No.2-Mohammad Shabbir Abdul Kumar, a police official and member of raiding party, who has been examined at Exh.29, has deposed that upon receipt of secret information, two panchas namely, Kirangar Kishorgar and Prakash Nechaldas were called and after informing them about the secret information and after completing requisite formalities, they proceeded towards the place of information upon drawing preliminary panchnama. He has further deposed that after reaching the place of information, they asked name and address of a person who wore black- stained clothes and he stated his name as Mangilal Jagmal Bishnoi residing at Transport Nagar, behind Natraj Hotel in this wooden cabin in Gandhidham and native of Bishnoi Kidhani, District Badmer, Rajasthan. He has further deposed that PI, Mr. Vaghela explained to him before the panchas that they have received a tip-off that intoxicating substance opium is sold illegally in this cabin and, therefore, his search has to be carried out in this cabin. Upon his consent, his search was carried out in the wooden cabin and black thick liquid substance (opium) was found from there. He has further deposed that said substance was found to be weighing 1 kg 430 gm and FSL Officer, Mr. Darji opined that the intoxicating substance was opium. Thereafter, two samples of 50 gm each were kept in two separate plastic bags which were properly sealed and signatures of the panchas and the police officials put thereon and they were sent for FSL analysis. Thereafter, after drawing detailed panchnama, a complaint was registered against the adccused.

11. P.W.No.3-Kamleshbhai Keshavlal Oza, another police official, who has been examined at Exh.32, has deposed that investigation kit was prepared by him. He has further deposed that in order to have the search of the person upon receiving the secret information, they reached the place of information along with two panchas and upon consent of the person wearing black-stained clothes, his search was made and contraband substance was found from an iron box used to keep tools. Therefore, FSL officer was called by PI Mr. Vaghela and Scientific Officer, Mr. Darji, arrived there and on examination, the officer informed that the substance found from the accused was opium for which, he had no pass or permit. Thereafter, when ‘opium’ in the plastic bag was weighed, it was found to be weighing 1 kilo 430 gram. He has also deposed that two samples of 50 gm each were taken which were sent for FSL analysis. He has further deposed that upon interrogation of the said person, he stated that a person named Sukhram from Rajasthan had delivered this ‘opium’ and thereafter, he was arrested, panchnama was drawn and offence was registered against him under NDPS Act.

12. P.W.No.7-Rajkumar Guganram Aahir, another police witness of raiding team examined at Exhibit-42, has also deposed on the same line.

13. P.W.No.1-Kirangar Kishorgar, examined at Exh.18, a panch of raiding party, has admitted his signatures on the panchnama at Exh.19. He has been declared as hostile.

14. On going through the evidence of aforesaid witnesses, it appears that the complainant-Hardevsinh Karansinh Vaghela and police officers of raid have supported the case of the prosecution. It is to be noted that before drawing panchnama of place of occurrence, preliminary panchnama has been drawn and thereafter, panchnama of place of occurrence has been drawn in presence of the panchas. It appears that all the required procedures as per provisions of section 42 of N.D.P.S Act have been complied with by the prosecution. In view of the above, it has been held by the trial court that it is proved by the prosecution beyond reasonable doubt that provisions of the NDPS Act have been complied with by the prosecution in this case. A dispute has been raised that the appellant was not owner of the cabin. However, it is to be noted that no evidence has been produced on record to corroborate aforesaid fact. A dispute has also been raised that the muddamal was not found from the direct possession of the accused. However, there is no reason to believe that muddamal was not found from the direct possession of the accused. Further, there is also no reason to discard the trustworthy evidence of important witnesses including the complainant and other members of raiding party, who are police officers. Moreover, it could not be proved by the defense that the complainant or the members of the raiding party has any animosity with the appellant accused and therefore, it cannot be believed that the appellant- accused has been falsely implicated in the case.

15.In the entirety of the facts and circumstances narrated hereinabove, it has been rightly held by the trial court that the prosecution has been able to successfully prove the charge against the accused beyond reasonable doubt through oral as well as documentary evidence and therefore, the appellant was rightly convicted. This Court is in complete agreement with the reasons adopted by and the conclusions arrived at by the learned trial court in the impugned judgment so far as the conviction of the present appellant is concerned. However, the question to be considered is as to whether the appellant, in the given facts and circumstances of the case, is entitled to reduction of sentence which has been awarded by the trial court or not.

16. It appears that quantity seized from the appellant was weighing 1 kg and 430 gm which is above the minimum quantity of 25 gm and far below the commercial quantity but little more than half of the commercial quantity of 2.5 kg. For possessing such quantity of contraband article, the appellant was sentenced to undergo ten years’ RI and to pay fine of Rs.1,00,000/-, in default, to undergo further RI for two years. This aspect requires to be considered in light of the principles laid down by the Hon’ble Supreme Court in the decisions relied on by the learned advocate for the appellant.

16.1 In this connection, reference will have to be made to a decision rendered by the Hon’ble Supreme Court in E. Michael Raj (supra) relied on by the learned advocate for the appellant wherein it has been held in paragraphs 15, 16, 17 and 18 as under:

“15. The learned counsel for the respondent placed reliance on the decision of this Court in

# Amarsingh Ramjibhai Barot v. State of Gujarat, (2005) 7 SCC 550

in support of his contention that the entire material found in possession irrespective of the content of the offending material has to be taken into consideration while imposing the punishment. In Amarsingh case (supra), two persons, namely, Amarsingh and Danabhai were apprehended. Amarsingh was found carrying a plastic bag which contained a black- coloured liquid substance weighing 920 gms. Similarly, 4.250 kg. of grey-coloured substance was recovered from Danabhai. Samples were sent to the Forensic Science Laboratory (FSL). The FSL report indicated that the sample from Amarsingh was opium as described in the NDPS Act containing 2.8% anhydride morphine apart from pieces of poppy flowers and the sample relating to Danabhai was reported to be opium as described in the NDPS Act having 1.2% anhydride morphine and also containing pieces of poppy flowers. Both the accused were charged and tried under Sections 15, 17 and 18 read with Section 29 of the NDPS Act. The High Court found that the conviction under Sections 17 and 18 read withSection 29 of the NDPS Act was not correct, but convicted Amarsingh under Section 21(c) and also under Section 21(c) read with Section 29 of the NDPS Act, for individually being in possession of opium and for being jointly, in conspiracy with the other accused. The High Court found the accused possessed of commercial quantity and convicted and sentenced him for 10 years rigorous imprisonment plus fine of Rs. 1 lakh. Being aggrieved, Amarsingh approached this Court. This Court has held in para 14 of the judgment as under :

“There does not appear to be any acceptable evidence that the black substance found with the appellant was “coagulated juice of the opium poppy” and “any mixture, with or without any neutral material, of the coagulated juice of the opium poppy”. FSL has given its opinion that it is “opium as described in the NDPS Act.” That is not binding on the court.” The Court further held that the evidence also does not indicate that the substance recovered from the appellant would fall within the meaning of sub-clauses (a), (b), (c) or (d) of Section 2(xvi), but residuary clause (e) would apply and consequently it would amount to opium derivative as all opium derivatives fall within the expression ‘manufactured drugs.’ Thus, the Court arrived at the conclusion that what was recovered from the appellant was manufactured drug and the offence proved against the appellant fell clearly within Section 21 of the NDPS Act for illicit possession of manufactured drug. The Court concluded and held in para 17 as under :

“In respect of opium derivatives (at SI. No. 93) in the said notification, 5 grams is specified as “small quantity” and 250 grams as “commercial quantity”, The High Court was, therefore, right in finding that the appellant was guilty of unlawful possession of “commercial quantify” of a manufactured drug. Consequently, his case would be covered by clause (c) and not clause (a) or (b) of Section 21 of the NDPS Act.”

This Court has, therefore, upheld the imposition of minimum punishment under Section 21(c) of 10 years rigorous imprisonment with fine of Rs. 1 lakh.

16. On going through Amarsingh case (supra), we do not find that the Court was considering the question of mixture of a narcotic drug or psychotropic substance with one or more neutral substance/s. In fact that was not the issue before the Court. The black-coloured liquid substance was taken as an opium derivative and the FSL report to the effect that it contained 2.8% anhydride morphine was considered only for the purposes of bringing the substance within the sweep of Section 2(xvi)(e) as ‘opium derivative’ which requires a minimum 0.2% morphine. The content found of 2.8% anhydride morphine was not at all considered for the purposes of deciding whether the substance recovered was a small or commercial quantity and the Court took into consideration the entire substance as an opium derivative which was not mixed with one or more neutral substance/s. Thus, Amarsingh case (supra) cannot be taken to be an authority for advancing the proposition made by the learned counsel for the respondent that the entire substance recovered and seized irrespective of the content of the narcotic drug or psychotropic substance in it would be considered for application of Section 21 of the NDPS Act for the purpose of imposition of punishment. We are of the view that when any narcotic drug or psychotropic substance is found mixed with one or more neutral substance/s, for the purpose of imposition of punishment it is the content of the narcotic drug or psychotropic substance which shall be taken into consideration.

17. In the present case, the narcotic drug which was found in possession of the appellant as per the Analyst’s report is 60 gms. which is more than 5 gms., i.e. small quantity, taut less than 250 gms., i.e. commercial quantity. The quantity of 60 gms. is lesser than the commercial quantity, but greater than the small quantity and, thus, the appellant would be punishable under Section 21(b) of the NDPS Act. Further, it is evident that the appellant is merely a carrier and is not a kingpin.

18. In these circumstances, the ends of justice would be subserved if we reduce the sentence of the accused-appellant to 8 years rigorous imprisonment with fine of Rs. 20,000/- and in default of payment of fine rigorous imprisonment for six months. We order accordingly. “

16.2 In Ghasita Sahu (supra) relied on by the learned advocate for the appellant, sentence imposed on the accused for possession of not ‘opium’ but contraband article ‘ganja’ weighing 17 kg and 750 gm was reduced from five years to the period of almost four years already undergone by the accused. It has been held by the Hon’ble Supreme Court in paragraphs 7 and 8 as under:

“7. In the first place, there is no question in this case, of any such right of the accused.Section 51 of the Act specifically provides that the provisions of Criminal Procedure Code shall apply in so far as they are inconsistent to the provisions of the Act to all warrants, arrest, searches and seizures made under this Act. The right of the search being taken only in presence of a Magistrate or a Gazetted Officer is restricted where the search is to be taken of a “person” of the accused. In this case the search was of a house and, therefore, all that the Investigating Officer had to follow was the conditions under Section 42 of the Act read with Section 100, Cr.P.C. Therefore, the argument that the accused had any right in respect of the aforementioned search and that right has been breached is wholly incorrect. The law is now settled that this condition under Section 50 applies only where the search is of a “person” of accused [See

# State of H.P. v. Pawan Kumar, (2005) 4 SCC 350

In this case the search was not of the person but of his house.

8. However, it is pointed out by the learned counsel that the quantity of Ganja was less than the commercial quantity though more than the small quantity and that the accused has all through been behind the bars after his arrest and he has almost completed four years in Jail. Considering that the accused is a middle-aged man and comes from the poor background as claimed by the counsel, we would chose to modify his punishment of five years to the sentence already undergone. We also reduce the amount of fine from Rs. 20,000/- to Rs.10,000/- and in default of payment of fine the accused would undergo further period of Rigorous Imprisonment for six months. Barring this modification, the appeal is dismissed.”

16.3 Similarly, a Division Bench of this Court in Fakir Imamsha Davalsha (supra) relied on by the learned advocate for the appellant has held in paragraph 7 as under:

“7. Since the appeal is not pressed on the question of conviction, we do not deem it necessary to re-examine and re-appreciate the oral and documentary evidence adduced by the prosecution before the trial Court. The appeal is only pressed on the count of sentence. There is no dispute that as per Sr.No.55 regarding the ‘Ganja’, contained in table annexed to the NDPS Act, the quantity of ‘Ganja’ upto 1000 gms. is considered to be small quantity and quantity of 20 kgs. and more is considered to be commercial quantity. In the instant case, as established by the prosecution, the contraband substance ‘Ganja’, which came to be seized from the accused was weighing 9 kgs. and 140 gms., meaning thereby, the quantity was greater than small quantity and lesser than commercial quantity. Now, as per Section 20(b) (ii)(B), when the quantity involved is lesser than commercial quantity, but greater than small quantity, the punishment prescribed is RI for a term, which may extend to 10 years and with fine that may extend to Rs.1 Lac. In the impugned judgment, the trial Court while fixing the quantum of sentence, considered the possession of ‘Ganja’ weighing 9 kgs. and 140 gms. as commercial quantity. As stated above, so far as ‘Ganja’ is concerned, the commercial quantity is 20 kgs. And more. Thus, it is apparent that the trial Court committed serious error in considering the quantity of ‘Ganja’ weighing 9 kgs. and 140 gms. as commercial quantity. On such premise, the trial Court, therefore, awarded the sentence of RI for 10 years and fine of Rs.1 Lac. We are, therefore,of the considered opinion that the trial Court committed serious error while determining the quantum of sentence.”

16.4 Likewise, in Ashokkumar Balchand Umlani (supra) relied on by the learned advocate for the appellant, it has been held by this Court from paragraphs 6 to 11 as under:

“6. Central question which both the learned advocates debated before me pertains to the quantum of punishment awarded to the appellant for the offence under section 20(b)(ii)(B) of the NDPS Act. As noted, the learned Judge sentenced the appellant to 7 years of rigourous imprisonment and also imposed fine of Rs.50,000/- and in default of payment of fine, he was directed to undergo further RI of three years.

7. In a decision dated 4.4.2008 passed in Criminal Appeal No.1229 of 2004, this Court had an occasion to notice several decisions on the question of sentence in narcotic cases and made following observations:-

“5. Mr Agrawal has drawn my attention to the decision of the Apex Court in the case of

# Balwinder Singh vs. Asstt. Commissioner, Customs and Central Excise reported in 2005 (2) EFR 420 :  AIR 2005 SC 2917

wherein the accused was found in possession of 175 kgs of Heroin and 39 kgs of Opium. However, considering that the accused was a first time offender, sentence of 14 years of imprisonment imposed by the Courts below was reduced to minimum prescribed under the Act that of 10 years.

5.1 My attention is also drawn to the decision of the Division Bench of this Court dated 09.01.2008 in the case of rendered in Criminal Appeal No. 904 of 2000 wherein the accused were found in possession of Charas weighing nearly 9.5 Kgs. The Division Bench reduced the punishment from that of rigorous imprisonment of 15 years to the minimum of 10 years as prescribed under the Act.

5.2 Similarly in a judgement dated 05.02.2008 rendered by the Division Bench of this Court in Criminal Appeal No. 954 of 2003 with Criminal Appeal No. 2277 of 2004, the accused were found to be in possession of Charas of nearly 6 Kgs. The Division Bench reduced the sentence from rigorous imprisonment of 12 years to the minimum of 10 years prescribed.

5.3 In the case of

# Ghasita Sahu v. State of Madhya Pradesh reported in 2008 AIR AIAR (Criminal) 277

the Apex Court considering the poor background of the accused reduced the punishment from 5 years to one already undergone (about 4 years as noticed by the Apex Court) and also reduced the fine from Rs. 20,000/- to Rs. 10,000/- and imposed the default sentence of six months. It was a case wherein the accused was found carrying 17 Kgs of Ganja. It may be noted that commercial quantity for Ganja is prescribed as 20 Kgs.

5.4 In the case of

# Shanti Lal v. State of M.P. reported in 2007(2) EFR 702

the Apex Court in para 36 observed that the accused appellant is a very poor person and it was his first offence. It is further observed that because of poverty he could not pay the heavy amount of fine of Rs.1 lakh and that if he is ordered to remain in jail even after the period of substantive sentence is over only because of his inability to pay fine, serious prejudice will be caused not only to him but also to his family members who are innocent. With these observations the Apex Court though found itself unable to reduce the fine below the minimum of Rs. 1 lakh prescribed by the legislature directed that in default of payment of the said fine, the accused appellant shall serve sentence of six months.”

“7. Having thus heard learned advocates appearing for the respective parties and having taken into account relevant aspects of the matter, I find that imposition of the sentence of 7 years and fine of Rs. 75,000/- in the facts of this case are harsh.

8. As already stated the appellant was found in possession of 462.916 gms of charas. Small quantity of charas is defined as 100 gms and commercial quantity is 1 Kg. The appellant was thus carrying charas more than small quantity but substantially lesser than commercial quantity. In that view of the matter, and also considering the fact that the appellant is a first time offender and has no other criminal antecedents, the sentence of 7 years of rigorous imprisonment needs to be reduced. So also imposition of fine of Rs. 75,000/- against the maximum permissible fine of Rs. 1 lakh in facts of the case is high.

9. Taking into account the various decisions noted hereinabove and also taking into account special facts of the case including the facts that the appellant is stated to be a very poor person, this is his first involvement in a criminal case and the quantity of the drug found in his possession I find that the ends of justice will be met if the sentence is reduced to rigorous imprisonment for 4 years and imposition of fine of Rs. 15,000/-. In default of payment of fine he shall serve sentence of six months of simple imprisonment.”

8. In the present case also, I find that against a small quantity of 1 k.g prescribed for ganja and 20 k.g. for commercial quantity, the appellant was found in possession of 13.840 kgs of ganja. It is not in dispute that he has no criminal antecedents. No other criminal case has been lodged against him. His jail record further suggests that he has already been in jail for a period of more than 4 years and 8 months.

9. Learned advocate Shri Agrawal further submitted that the appellant is an extremely poor person and he is unable to pay the hefty fine of Rs.50,000/- imposed by the learned Judge.

10. Considering all these aspects of the matter, I find that the imposition of sentence of 7 years of RI and fine of Rs.50,000/- need to be reduced.

11. In the result, the appeal is disposed of with the following directions:

1. Conviction under section 20(b)(ii)(B) of the NDPS Act is upheld.

2. Sentence imposed on the appellant for the said offence is however reduced to four years of R.I. and fine of Rs.10,000/- (Rupees ten thousand). In case of default of payment of fine, he shall serve further sentence of six months of R.I.

3. Conviction and sentence under section 23 of the NDPS Act are set aside.

4. If the appellant has already served out the sentence including the default sentence or paid fine, he shall be set free if not required in any other criminal case.

5. With the above directions, the appeal is disposed of.”

17. In the present case, it is to be noted that the quantity of contraband article ‘opium’ seized was weighing 1 kg and 430 gm. The punishment prescribed for possession of small quantity of contraband article ‘opium’ weighing 25 gm is one year while for possession of quantity less than the commercial quantity but greater than the smaller quantity, punishment prescribed is minimum of 10 years of rigorous imprisonment and fine. Thus, for possession of small and commercial quantity, punishment prescribed is a sentence extending from one year to ten years and fine. Thus, there is huge difference between possession of quantity of 1 kg and 430 gm and commercial quantity of 2.5 kg and therefore, in tune with the legislative intent, principle of proportionality between the small and commercial quantity should have been considered by the trial court while imposing sentence. It is to be noted that punishment prescribed for possession of commercial quantity of 2.5 kg is a sentence which is extended upto ten years and, therefore, for possession of 1 kg and 430 gm, which is little more than half of the commercial quantity 2.5 kg, the proportionate sentence awardable would be little more than half of the sentence of ten years. I would be failing in my duty if principal of proportionality is not followed in deserving case. In the case on hand, the appellant has undergone more than four years of sentence and has no antecedent. As per the jail record, behaviour of the accused is good. He is also having responsibilities to maintain his family. As he is in jail, entire family is in a helpless condition and passing through a difficult period to survive a living. In view of the above, considering the fact that punishment prescribed for possession of commercial quantity of 2 kg and 500 gm is extended upto ten years, this Court is of the opinion that interest of justice will be met if the sentence is reduced from ten years to five and half years i.e. 5 years and 6 months considering the fact that quantity of contraband article seized was 1 kg and 430 gm, which is little more than half of the commercial quantity of 2 kg and 500 gm. The appeal, therefore, requires to be allowed in part by reducing the sentence as aforesaid.

18. The appeal is accordingly partly allowed. While confirming the conviction, the sentence of ten years’ RI imposed on the appellant-accused is ordered to be reduced to five and half years and fine of Rs.1,00,000/- (Rupees One Lac only) imposed on him is reduced to Rs.25,000/- (Rupees Twentyfive Thousand only) and in default of payment of fine, he shall undergo further RI for six months. The appellant, who is reported to be in jail, is ordered to undergo the remaining period of sentence. The impugned judgment and order dated 23.8.2016 passed by the learned Special Judge(NDPS), Gandhidham-Kachchh, in Special Case (NDPS) No.4 of 2012 is accordingly modified to the aforesaid extent. Remaining part of the impugned judgment is unaltered. Record and proceedings are ordered to be sent back to the court below forthwith.

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