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2012 (3) GCD 2015 (Guj) (DB)
Hon’ble Mr. Justice Jayant Patel &
Hon’ble Mr. Justice Paresh Upadhyay
Kamleshkumar Shriraghu Mahanto
Versus
State of Gujarat
Criminal Appeal No. 1380 of 2007—Decided on 20/03/2012
Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985) — Sections 20(b), 20(b)(ii) and 20(b)(ii)(13) — Recovery of ganja from possession of appellant — Quantity of 5 kgs and 700 gms were recovered — Sentence imposed of 10 year R.I. and fine of Rs. 1 lac — Claim for reduction of sentence — Scope of — In the present case recovery is greater than small quantity but less than commercial quantity for which punishment provided is R.I. for a term which may extend to 10 years and with fine which may extend to Rs. 1 lac — The principle of sentencing and proportionality of punishment is well settled — The personal circumstances of the person upon whom sentence is to be imposed and also the deferrent effect to be created in society also need to be considered — Court considering this aspect reduced the period of sentence to 5 years R.I. with fine of Rs. 50,000 instead of 10 years with find of Rs. 1 lac.
Held :
The principles of sentencing and proportionality of punishment are by now well settled. The gravity of offence does matter and is one of the relevant aspects to be taken into consideration by the Court while sentencing the guilty person, keeping in view the personal circumstances too of the person upon whom the sentence is to be imposed and also the deterrent effect to be created in the society. Considering the facts and circumstances that for smaller quantity the maximum sentence provided is of 6 months, and for the quantity lesser than commercial quantity, but greater than smaller quantity, the maximum sentence has been provided of 10 years, Court find that the aspect of quantity of about less than 6 kg. found from the possession, including the personal circumstances of the accused that he is too poor are required to be taken into consideration coupled with the evidence of I.O. in the cross examination that there is no criminal background found of the accused prior to the present incident. Hence, we find that considering the aforesaid aspects, an appropriate sentence could be 5 years R.I. with the fine of Rs. 50,000/- and 5 months R.I. for default in payment of fine as against 10 years R.I. with the fine of Rs. 1 lac and 2 years R.I. for default in payment of fine as imposed by the learned Special Judge. [Para 8]
Law Laid Down :
In matter of sentencing and proportionality of punishment—Gravity of offence does not matter — Relevant aspect to be taken into consideration is personal circumstances of the victim and deferrent effect to be created in the society.
Jayant Patel, J.—The present appeal is directed against the judgment and order passed by learned Special Judge in NDPS Case No. 11 of 2005; whereby, the learned Special Judge has convicted the appellant-accused for the offence under Section 20(b) of Narcotic Drugs and Psychotropic Substances Act, 1985 (herein after referred to as ‘the Act’) and has imposed the sentence of 10 years R.I. with the fine of Rs. 1 Lac and further 2 years R.I. for default in payment of fine.
2. As per the prosecution case, on 21.8.2005, Shri G.N. Zala, Police Inspector who was in-charge of the DCB Police Station, Vadodara received information that two persons, one aged about 20 years wearing white shirt and checks pent having blue colour bag and another person aged about 14 years wearing sky white checks design shirt and brown pent and having white plastic bag with him are at S.T. bus stop and the bags were carried by them containing ganja and therefore, the said information was recorded. The intimation was given to the immediate Superior Officer and the arrangement for raid was made. The panchas were called for search and seizure. They proceeded at the spot. Since it was after sunset and if the raid was not immediately carried out, the chances of escaping were there and therefore, the same was accordingly recorded in the station diary and thereafter, the raiding officer had proceeded for raid. It was found that at the S.T. Depot Intercity Platform two persons for which the information was received with the same description were present and they identified themselves as Kamleshkumar Shriraghu Mahanto accused herein (A-1) and another Devkumar Shriraghu Mahanto (Juvenile). Since they were not knowing Gujarati, they were made to understand in Hindi for their search. They were informed that they have an option for search in presence of any other Gazetted Officer or the Magistrate but such option was not exercised and thereafter, the search was carried out. The intimation was given to the FSL officer for preliminary testing of the substance and for weighing the same. From the possession of the bag of A-1, 5 Kg. and 700 grams ganja was found, whereas, from the bag in possession of Juvenile, 2 Kg. and 600 gms ganja was found. The preliminary testing was made and the result was positive. Thereafter, the samples were taken and the remaining substance and material was sealed and seized and thereafter, the complaint was filed with DCB Police Station at Exh.66.
3. The case was further investigated and thereafter, the charge-sheet was filed. The case was committed to the competent Court of the learned Special Judge being NDPS Case No. 11 of 2005. The prosecution in order to prove the guilt of the accused examined the 13 witnesses, the details of whom are mentioned by the learned Special Judge at Paragraph No. 10 of the judgment. The prosecution also produced the documentary evidences of 29 documents, the details of which are mentioned by the learned Special Judge at Paragraph No. 11 of the judgment. The learned Special Judge, thereafter, recorded the statement of the accused under Section 313 of Criminal Procedure Code; wherein, the accused denied the evidence against them but in the further statement, it was stated by the accused that he has been wrongly implicated in the case and the charge-sheet was filed based on the false evidence. The learned Special Judge, thereafter, heard the prosecution and the defence and ultimately found accused guilty for the offence. The learned Special Judge heard the prosecution and the defence on the aspect of sentence and ultimately, imposed the sentence as referred to herein above. Under these circumstances, the present appeal before this Court.
4. We have considered the evidence on record. We have also considered the judgment and the reasons recorded by the learned Special Judge. We have also heard Mr. Baghel, learned Counsel for the appellant and Mr. Pandya, learned APP for the State.
5. Learned Counsel appearing for the
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