Jashvantbhai Babubhai Parmar Vs the State of Gujarat and anr. - Court Judgment

Excerpt:
[r.v. raveendran; a. k. patnaik] indian penal code section 452 - house-trespass after preparation for hurt, assault or wrongful restraint -- after investigation, the police filed two challans on 02.02.2006 before the judicial magistrate, first class, ludhiana. after further investigation, the superintendent of police, city-ii, ludhiana, submitted his report to the deputy inspector general of police, ludhiana range. the relevant portion of the report of the superintendent of police, city-ii, ludhiana, which contains his conclusions after further investigation, is extracted herein below: "i found during my investigation that mohan singh, son of shri sher singh , dharmatma singh, harpal singh, jagdev singh and bhupinder singh, sons of mohan singh, residents of pullanwal, sold one plot of 1 kanal 13 marlas on 09.03.2004 to bharpur sigh, harnek singh, sons of balbir singh, jagjit singh, son of amarjit singh, gurcharan singh, son of hari dass and jagdev singh, son of harpal singh, resident of phulanawal through registered sale deed vasikha no.23895 and the mutation no.10940 duly entered in the name of purchasing party. for deciding the issue, we must first refer to the provisions of section 173 of the cr.p.c. under which the police submits reports after investigation and after further investigation, section 190 of the cr. p.c. under which the magistrate takes cognizance of an offence upon a police report and section 482 of the cr.p.c. under which the high court exercises its powers to quash the criminal proceedings. report of police officer on completion of investigation. cognizance of offences by magistrate. sub-section (8) of section 173 further provides that where upon further investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall also forward to the magistrate a further report regarding such evidence and the provisions of sub-section (2) of section 173, cr.p.c., shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2). thus, the report under sub-section (2) of section 173 after the initial investigation as well as the further report under sub-section (8) of section 173 after further investigation constitute "police report" and have to be forwarded to the magistrate empowered to take cognizance of the offence. r.p. kapur moved the punjab high court under section 561-a of the code of criminal procedure for quashing the proceedings initiated by the first information report. 1. the appellant is the original accused. by impugned judgement and order dated 21.8.2004 passed by learned additional sessions judge, anand in special ndps case no. 7/2003, appellant was convicted for offence punishable under section 20(b)(ii)(b) of the narcotic drugs and psychotropic substances act, 1985(here-in-after referred to as "the ndps act"). he was sentenced to rigorous imprisonment for five years and fine of rs. 20,000/-. in default of payment of fine, he was ordered to undergo one year of imprisonment.2. from the judgement under consideration, it can be seen that the learned judge believed that the appellant was carrying total of 1kg and 500grams of ganja without license on 24.6.2003. he was thus convicted for offence punishable under section 20(b)(ii)(b) of the ndps act.3. from the provision made under the ndps act, it can be seen that small quantity of ganja is prescribed as 1000 grams and commercial quantity is prescribed as 20 kgs. the appellant was thus found to be in possession of ganja which was in quantity larger than the small quantity but lesser than the commercial quantity.4. learned advocate ms. roopal patel appearing for the appellant submitted at the outset that the sentence imposed by learned judge is harsh and calls for modification. she submitted that rigorous imprisonment of five years and fine of rs. 20,000/- is to be reduced. she submitted that the appellant is a very poor person and is not able to pay fine. it was submitted that the appellant would not press the appeal on merits if the court were to make suitable modification in the sentence.5. on the other hand, learned app shri bhatte opposed the appeal and submitted that the conviction and sentence being just and proper calls for no interference.6. in view of the statement made by learned advocate for the appellant, i have examined the question of sentence and not gone into the details of the conviction recorded by the learned judge against the appellant. as already noted, the appellant was found in possession of ganja weighing 1.5kg. for ganja, small quantity is prescribed upto 1000 grams and commercial quantity is prescribed upto 20 kg. the appellant was thus found in possession of ganja which was marginally higher than the small quantity. it may be noted that under section 20 of the ndps act if the accused is involved in production, manufacture, possession, etc. of small quantity of the substance, punishment prescribed is of rigorous imprisonment for a term which may extent to six months or with a fine which may extend to ten thousand rupees or both. in contrast, if such quantity is lesser than the commercial quantity, but greater than the small quantity, punishment prescribed is of rigorous imprisonment for a term which may extend to 10 years and with fine which may extend to one lakh rupees. thus in case,the offender is found carrying small quantity of the substance, maximum punishment which may be imposed is of six months of imprisonment. prescription for punishment is imprisonment or fine. on the other hand for quantity greater than the small quantity but lesser than commercial quantity, maximum sentence that can be awarded is imprisonment for 10 years and fine which may extent to one lakh rupees.7. when the appellant was found to be in possession of ganja which was marginally higher than the small quantity, i find that awarding sentence of five years and fine of rs. 20,000/- was harsh.8. considering the above aspects of the matter, as also considering that this is the first offence of the appellant and his relatively advanced age, the sentence is required to be reduced.9. in an order dated 4.4.2008 passed in criminal appeal no. 1229 of 2004, following observations were made-5. mr agrawal has drawn my attention to the decision of the apex court in the case of balwinder singh v. 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.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.10. in the result, appeal is disposed of in following terms:conviction of the appellant under section 20(b)(ii)(b) of the ndps act is confirmed. sentence however, is reduced to four years of rigorous imprisonment. fine is reduced to rs. 5000/-. in case of default of payment of fine, he shall undergo simple imprisonment for a period of six months.11. appeal is disposed of in above terms.

Judgment:
1. The appellant is the original accused. By impugned judgement and order dated 21.8.2004 passed by learned Additional Sessions Judge, Anand in Special NDPS Case No. 7/2003, appellant was convicted for offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985(here-in-after referred to as "the NDPS Act"). He was sentenced to rigorous imprisonment for five years and fine of Rs. 20,000/-. In default of payment of fine, he was ordered to undergo one year of imprisonment.

2. From the judgement under consideration, it can be seen that the learned Judge believed that the appellant was carrying total of 1kg and 500grams of ganja without license on 24.6.2003. He was thus convicted for offence punishable under Section 20(b)(ii)(B) of the NDPS Act.

3. From the provision made under the NDPS Act, it can be seen that small quantity of ganja is prescribed as 1000 grams and commercial quantity is prescribed as 20 kgs. The appellant was thus found to be in possession of ganja which was in quantity larger than the small quantity but lesser than the commercial quantity.

4. Learned advocate Ms. Roopal Patel appearing for the appellant submitted at the outset that the sentence imposed by learned Judge is harsh and calls for modification. She submitted that rigorous imprisonment of five years and fine of Rs. 20,000/- is to be reduced. She submitted that the appellant is a very poor person and is not able to pay fine. It was submitted that the appellant would not press the appeal on merits if the Court were to make suitable modification in the sentence.

5. On the other hand, learned APP Shri Bhatte opposed the appeal and submitted that the conviction and sentence being just and proper calls for no interference.

6. In view of the statement made by learned advocate for the appellant, I have examined the question of sentence and not gone into the details of the conviction recorded by the learned Judge against the appellant. As already noted, the appellant was found in possession of ganja weighing 1.5kg. For ganja, small quantity is prescribed upto 1000 grams and commercial quantity is prescribed upto 20 kg. The appellant was thus found in possession of ganja which was marginally higher than the small quantity. It may be noted that under Section 20 of the NDPS Act if the accused is involved in production, manufacture, possession, etc. of small quantity of the substance, punishment prescribed is of rigorous imprisonment for a term which may extent to six months or with a fine which may extend to ten thousand rupees or both. In contrast, if such quantity is lesser than the commercial quantity, but greater than the small quantity, punishment prescribed is of rigorous imprisonment for a term which may extend to 10 years and with fine which may extend to one lakh rupees. Thus in case,the offender is found carrying small quantity of the substance, maximum punishment which may be imposed is of six months of imprisonment. Prescription for punishment is imprisonment or fine. On the other hand for quantity greater than the small quantity but lesser than commercial quantity, maximum sentence that can be awarded is imprisonment for 10 years and fine which may extent to one lakh rupees.

7. When the appellant was found to be in possession of ganja which was marginally higher than the small quantity, I find that awarding sentence of five years and fine of Rs. 20,000/- was harsh.

8. Considering the above aspects of the matter, as also considering that this is the first offence of the appellant and his relatively advanced age, the sentence is required to be reduced.

9. In an order dated 4.4.2008 passed in Criminal Appeal No. 1229 of 2004, following observations were made-

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

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.

10. In the result, appeal is disposed of in following terms:

Conviction of the appellant under Section 20(b)(ii)(B) of the NDPS Act is confirmed. Sentence however, is reduced to four years of rigorous imprisonment. Fine is reduced to Rs. 5000/-. In case of default of payment of fine, he shall undergo simple imprisonment for a period of six months.

11. Appeal is disposed of in above terms.