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2002 Supreme(Guj) 643
Gujarat High Court
Judgename :D.P.Buch, N.G.Nandi
ABDUL GANI ABDUL KARIM ALIAS BACHUBHAI PATNI - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL 657 of 2002
Decided On : 09/02/2002
Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985 -Section 8,41 appellant-convict and learned APP for the State, this appeal is taken up today itself for final disposal as the only contention pressed by the learned Advocate for the appellant-convict is the quantum of sentence in view of the amendment in section 41 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the NDPS Act ). We, therefore, take up this appeal for final hearing and disposal. facts leading to the prosecution case shortly stated is that during the night intervening. two persons -were searched and from their possession, charas was found/recovered and they confessed that they had purchased the charas from the present appellant-convict. Thereafter, the said were taken to police station; that they were kept there and thereafter telephonic information was sent to police station about the aforesaid information received and subsequent thereto, a raid was arranged in presence of the Panchas by the police staff at the house at about 4. 45 a. m. There the present appellant was found and the house was searched in his presence. During the search from the first room of his house, charas was found weighing 80 grams valuing Rs. 2,800. 00. Thereafter, muddamal charas was divided into two equal parts and put in the plastic bag separately and slip containing signatures of the Panchas was put in the bag as well as on the outer side of the bag and seal of the City Police Station Officer. appellant has not challenged the finding of guilt/conviction recorded by the trial court and the appeal is confined only to the sentence in view of section 41 (new) of the NDPS Act, we do not think it necessary to call for the Record and Proceedings of the case and therefore, the Record and Proceedings of the case have not been called for. learned Advocate appearing for the appellant-convict that the finding of guilt/conviction arrived at and recorded by the trial court is not challenged in the present appeal and the present appeal is confined only to the sentence imposed by the trial court for offence punishable. It is further submitted -Held above being the position of law pursuant to the amendment in Section 41 read with section 20 of the Act, 80 grams charas recovered from the possession of the appellant-convict would be, in view of Item No. 23 of the Table appended to the NDPS Act, a small quantity and the sentence which would be attracted would be maximum of six months rigorous imprisonment or with fine upto Rs. 10,000. 00 or both. It is submitted by learned Advocate for the appellant that the appellant is in jail for more than three years, and remand to the trial court on the point of sentence would delay the matter and hence this Court should decide the appeal on sentence. We, therefore, do not remand the case to the trial court on the point of sentence as the appellant is in jail for more than six months. In view of the above, the conviction recorded by the trial court against the appellant-convict at present serving out sentence in Central Jail is confirmed. The sentence of 10 years rigorous imprisonment and fine of Rupees One lakh, in default, two years Simple Imprisonment is reduced to six months rigorous imprisonment and fine of Rs. 5,000. 00, in default, rigorous imprisonment for two months. The sentence imposed by the trial court is reduced and modified to the above extent. This appeal is disposed of accordingly. If the fine is deposited as aforesaid, the accused be set at liberty forthwith, if not required in any other case. Fine, if paid in excess of whatever ordered hereinabove, shall be refunded to the appellant -Appeal is Disposed.
( 1 ) HEARD. Admit. Mr K C Shah, learned APP waives service and accepts the notice of admission.
( 2 ) ON the request by the learned Advocate for the appellant-convict and learned APP for the State, this appeal is taken up today itself for final disposal as the only contention pressed by the learned Advocate for the appellant-convict is the quantum of sentence in view of the amendment in section 41 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the NDPS Act ). We, therefore, take up this appeal for final hearing and disposal.
( 3 ) THE facts leading to the prosecution case shortly stated is that during the night intervening 19th July and 20/07/1999 between 1. 15 a. m. and 2. 10 a. m. , near village Gadu, in Mangrol Taluka, near Chorwad, District Junagadh, two persons - Noor Ahmed Shaikh and Sabbir Hussein Miya were searched and from their possession, charas was found/recovered and they confessed that they had purchased the charas from the present appellant-convict Abdul Gani Abdul Karim alias Bachu Patni of Veraval. Thereafter, the said Noor Ahmed Shaikh and Sabbir Hussein Miya were taken to Chorwad police station; that they were kept there and thereafter telephonic information was sent to Veraval police station about the aforesaid information received and subsequent thereto, a raid was arranged in presence of the Panchas by the police staff at the house of Abdul Gani Abdul Karim at about 4. 45 a. m. There the present appellant was found and the house was searched in his presence. During the search from the first room of his house, charas was found weighing 80 grams valuing Rs. 2,800. 00. Thereafter, the muddamal charas was divided into two equal parts and put in the plastic bag separately and slip containing signatures of the Panchas was put in the bag as well as on the outer side of the bag and seal of the City Police Station Officer, Veraval was applied. That, a cash amount of Rs. 1095. 00 was also found which was also recovered vide panchnama which was drawn between 4. 45 a. m. and 6. 30 a. m. The appellant Abdul Gani Abdul Karim was arrested and complaint for offence punishable under section 8 and 20 of the NDPS Act was filed. On completion of investigation, charge-sheet was filed against the appellant. Thereafter, the case was committed to the Sessions Court at Veraval. The Sessions Court, vide Exh. 8, framed charge against the appellant on 20th July, 1999. The accused denied the charge and claimed to be tried. The prosecution adduced oral as well as documentary evidence to bring home the guilt to the accused and thereafter statement of the accused under section 313 of the Criminal Procedure Code was recorded. On appreciation of oral as well as documentary evidence, the appellant was found guilty for the offence punishable under section 8 (c) and 20 (b) (ii) of the NDPS Act and was sentenced to undergo Rigorous imprisonment for a period of 10 years and was directed to pay a fine of Rupees one lakh and in default to suffer two years simple imprisonment. It is this finding of guilt/conviction and sentence which have been assailed in the memo of the appeal by the appellant-convict.
( 4 ) SINCE the appellant has not challenged the finding of guilt/conviction recorded by the trial court and the appeal is confined only to the sentence in view of section 41 (new) of the NDPS Act, we do not think it necessary to call for the Record and Proceedings of the case and therefore, the Record and Proceedings of the case have not been called for.
( 5 ) AT the outset, it is submitted by Mr Nigam Shukla, learned Advocate appearing for the appellant-convict that the finding of guilt/conviction arrived at and recorded by the trial court is not challenged in the present appeal and the present appeal is confined only to the sentence imposed by the trial court for offence punishable under Section 8 (c), 20 (b) (ii) of the NDPS Act. It is further submitted by Mr Nigam Shukla that in view of the amendment i
