( 1 ) THIS appeal arises out of the judgment and order rendered by the Sessions Judge, Sabarkantha at Himatnagar on 2 8/04/1995 in Narcotic Case No : 1 of 1994 convicting the appellant under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the `ndps Act for short) and sentencing him to undergo rigorous imprisonment for 5 years and to pay fine of Rs. 50,000. 00 or to undergo a further simple imprisonment of 1 year in event of default in payment of fine.

( 2 ) THE facts in nutshell are that on 12/01/1994, at about 15. 00 Hrs. , while the police officers were on patrolling, noticed the accused boarding from a tanker and on seeing the police, he again tried to re-board the tanker which raised suspicion in the mind of the officer concerned and therefore they accosted him. The panch witnesses were summoned. His name was asked which was disclosed as Martaram Thavarji Asari. The accused was carrying one black shoulder bag which was searched in presence of panch witnesses and Ganja leaves were found out therefrom. The person was called for weighing the contraband seized and upon weighing it was found to be 3. 820 kgs along with the bag. Sample of 250 grms was drawn. The sample as well as the remaining quantity of Mudamal were seized after sealing. The sample was sent to FSL. FSL certified that it was Ganja. The accused came to be chargesheeted and then came to be prosecuted and after considering the evidence on record, the learned Sessions Judge came to the conclusion that the charge against the accused were established. The accused was therefore convicted and sentenced as stated above.

( 3 ) THE appeal was argued by Mr. Buddhabhatti who is an appointed advocate. He mainly raised contention that requirements of Section 50 of NDPS Act have not been complied with. Compliance of that Section is mandatory, otherwise, the trial would stand vitiated and the accused may be acquitted. Mr. Buddhabhati has drawn attention of this Court to the fact that the accused has already undergone sentence of 5 years R. I. and at present he is undergoing the sentence of 1 year S. I. which is ordered to be undergone in case of default in payment of fine. The accused is in jail since 12/01/1994. It is almost 5 years and 6 months have been passed. Mr. Buddhabhatti therefore urged that alternatively the case of the accused may be considered on quantum of punishment. The accused is inflicted with highest punishment both in terms of sentence as well as the fine. Mr. Buddhabhatti has stressed on the submission that the accused is the poor man, has family to support and therefore sympathy may be shown towards him. Mr. Buddhabhatti has also drawn attention of this Court towards certain contradictory version emerging from the depositions of different witnesses and therefore urged that the conviction may be set aside or in alternative, the sentence may be reduced. Mr. Buddhabhatti has placed reliance on the following decisions; (1) T. P. RAZAAK V. STATE OF KERALA 1996 SUPREME COURT CASES (CRI.) 57 (2) BALWINDER SINGH V. STATE OF PUNJAB 1996 SUPREME COURT CASES (CRI.) 59 (3) STATE OF PUNJAB V. LABH SINGH 1996 SUPREME COURT CASES (CRI.) 1936 (4) RAGHBIR SINGH VS. STATE OF HARYANA 1996 SUPREME COURT CASES (CRI.) 266 (5) UNREPORTED JUDGMENT OF GUJARAT HIGH COURT IN CASE OF. . MOHANLAL RAICHANDJI BISNOI rendered in Criminal Appeal No : 540 / 89 on 30th January, 1997 (Coram : N. J. Pandya and H. L. Gokhaje, JJ.)

( 4 ) MR. DAVE, learned APP appearing for the State has opposed this appeal. He submitted that the accused has already undergone the sentence. So far the fine is concerned, the accused - appellant is not able to show any mitigating circumstances. When the trial Court has imposed sentence after considering the merits of the case, using judicial discretion, this Court may not interfere with that order. So far as non compliance of Section 50 is concerned, Mr. Dave has drawn attention to this Court to deposition of the investi