IMPORTANT POINT
Sentencing - mitigating circumstances.

JUDGMENT

P. Sathasivam, J. - Delay condoned.

2. Leave granted.

3. These appeals are directed against the final judgment and order dated 08.07.2002 passed by the High Court of Gujarat at Ahmedabad in Criminal Appeal Nos. 11 and 75 of 2002 whereby the Division Bench of the High Court dismissed the appeals filed by the appellants herein and affirmed the judgment dated 10.12.2001 passed by the Additional Sessions Judge, Ahmedabad City in Sessions Case No. 381 of 2000.

4. Brief facts:

(a) On 04.09.2000, on a tip-off, the Narcotic Cell, Police Bhavan, Gandhinagar, Gujarat arrested two persons, viz., Shahejadkhan Mahebubkhan Pathan and Narendrasinh Chandrashekhar Rai (the appellants herein) carrying 500 grams brown sugar (narcotic substance) at Kalupur Railway Station, Ahmedabad while they were traveling in Sarvodaya Express from Delhi to Ahmedabad through Ratlam.

(b) After following the procedure regarding search and seizure and after registering the case under the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘the NDPS Act’), the samples were sent to the Forensic Science Laboratory (FSL) for examination.

(c) On 19.12.2000, after filing of the charge sheet, the case was committed to the Court of Session and numbered as Sessions Case No. 381 of 2000.

(d) The Additional Sessions Judge, Ahmedabad City, after considering the notification of the Government being No. SO.1055 (E) dated 19.10.2001 and the provisions of the NDPS Act held that the quantity of the narcotic substance (brown sugar) falls under the head “Commercial Quantity” and found the appellants guilty for the offence punishable under Sections 8(c), 21 and 29 of the NDPS Act and sentenced them to suffer rigorous imprisonment (RI) for 15 years. The Additional Sessions Judge, after taking note of the fact that the appellants belong to the State of Madhya Pradesh and were carrying such commercial quantity of brown sugar to the State of Gujarat for doing business, also imposed a fine of Rs. 1.5 lakhs each, in default, to further undergo RI for 3 years.

(e) Being aggrieved, the appellants herein filed Criminal Appeal Nos. 11 and 75 of 2002 before the High Court of Gujarat. The Division Bench of the High Court, by impugned order dated 08.07.2002, dismissed the said appeals. Questioning the same, the appellants herein have filed separate appeals by way of special leave before this Court.

5. Heard Dr. Sushil Balwada, learned counsel for the appellants-accused and Ms. K. Enatoli Sema, learned counsel for the respondent-State.

6. Learned counsel appearing for both the appellants before the High Court as well as before this Court, considering the materials placed by the prosecution, has not seriously canvassed the conviction, however, taking note of various aspects including the age and poorness, prayed for reduction of sentence. In addition to the same, learned counsel also prayed for modification of default sentence awarded by the Additional Sessions Judge, Ahmedabad City and confirmed by the High Court.

7. In view of the limited relief prayed for and considering the relevant and acceptable materials placed by the prosecution in support of their case, there is no need to traverse the finding relating to conviction, accordingly, we hereby confirm the same.

Sentence:

8. Coming to the question of sentence, it is not in dispute that the appellants were charged for possession of brown sugar in the quantity of 500 grams which falls under the head “commercial quantity”. As per the notification of the Government being No. SO.1055(E) dated 19.10.2001, it is necessary to consider the same in terms of Section 21(c) of the NDPS Act. The trial Judge, taking note of the fact that the appellants were carrying such commercial quantity of brown sugar to the State of Gujarat from the State of Madhya Pradesh, awarded RI for 15 years and also directed them to pay a fine of Rs.1.5 lakhs each, in default, to further undergo RI for 3 years. For offences punishable under Sections 8(c), 21 and