G.B. Shah, J.

1. This appeal under section 374 of the Code of Criminal Procedure, 1973 filed by the appellants-original accused Nos. 1 and 2 arises out of judgment and order dated 5.10.2011 passed by the learned Special Judge and Additional Sessions Judge, Jamnagar, in Special NDPS Case No. 2 of 2010 whereby they were convicted and sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs. 1,00,000/-, in default, to suffer further rigorous imprisonment for two years for the offence punishable under section 20(B) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as 'the NDPS Act').

2. Facts, in nutshell, are that the accused were found selling contraband article 'ganja' weighing about 3 kg and 400 gm and therefore, FIR came to be registered as C.R. No. I-86 of 2010 at Jamnagar 'B' Division Police Station for the offence punishable under sections 20(B) and 20(C) of the NDPS Act. In pursuance of the said complaint, investigation started and as there appeared prima facie case against the accused, charge sheet was filed against the accused persons. As the offence was triable exclusively by the Court of Sessions, the learned Magistrate committed the cases to the Court of Sessions. Thereafter charge was framed against the accused which was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried. Hence, the prosecution was asked to prove the guilt against the accused. To prove the case, the prosecution examined ten witnesses and produced and relied on several documentary evidence numbering 27. After filing of closing pursis by the prosecution, further statements of accused under Sec. 313 of Cr.P.C. were recorded wherein they pleaded that false case has been filed against them. On conclusion of trial and upon hearing the learned advocates appearing for the respective parties, impugned judgment and order, as aforesaid in the earlier part of this judgment, was delivered by the trial court giving rise to the present appeal.

3. Heard learned advocate, Mr. Yash Joshi, for the appellants-original accused Nos. 1 and 2 and learned APP, Mr. K.L. Pandya for the respondent-State.

4. Mr. Yash Joshi, learned counsel for the appellants drew attention of this Court on a decision of the Hon'ble Supreme Court in the case of Ghasita Sahu Vs. State of M.P. reported in AIR 2008 SC 1425 wherein sentence imposed on the accused was reduced from five years' RI to the period already undergone by the accused for possession of 17 kg and 750 gm of contraband article 'ganja'. He further drew attention of this Court on the case of Fakir Imamsha Davalsha Vs. State of Gujarat reported in 2011 JX (Guj) 955 wherein sentence imposed on the accused was reduced from 10 years' RI to five years' RI for possession of contraband article 'ganja' weighing 9 kg and 140 gm. He also drew attention of this Court on the case of Ashokkumar Balchand Umlani Vs. State of Gujarat reported in 2008 JX (Guj) 787 wherein sentence imposed on the accused was reduced from seven years' RI to four years' RI for possession of contraband article 'ganja' weighing 13 kg and 840 gm. Relying on the aforesaid decisions, he submitted that even if the conviction is to be upheld, the trend of the court evident from the above mentioned authorities is to punish the accused in proportion to the quantity of contraband article 'ganja' seized from the accused. He further submitted that even the legislative scheme emphasizes on the sentence proportionate to the quantity seized and in the instant case, 3 kg and 400 gm of contraband article 'ganja' was seized from the appellants as against the commercial quantity of 20 kg for which, minimum sentence is 10 years. He then submitted that for possession of such quantity i.e. 3 kg and 400 gm, a disproportionate sentence of 10 years was imposed by the trial court. He further submitted that both the appellants have already undergone more than four years