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