IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
VIMAL K. VYAS, J.
State Of Gujarat - Appellant
Versus
Rughnathram Laduji Jivaji Vishnoi (GILA) – Respondent
R/Criminal Appeal (For Enhancement) No. 2601 Of 2024
Decided On : 11-12-2024
(A) Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 418 - Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 8(c) and 17(b) - Conviction for possession of opium - Respondent-accused found with 409 grams of opium, sentenced to three years' rigorous imprisonment and a fine of Rs.10,000 - Trial court's reasoning for lenient sentence considered age and family background of accused, but High Court found no grounds for enhancement - No infirmity in trial court's discretion. (Paras 10, 12, 14)
(B) Sentencing Principles - The appellate court should not interfere with the trial court's discretion unless the sentence is manifestly inadequate or perverse. (Paras 12, 13)
JUDGMENT :
VIMAL K. VYAS, J.
1. This enhancement appeal is being filed by the State under Section 418 of the Bharatiya Nagarik Suraksha Sanhita, 2023, against the judgment and order of conviction and sentence dated 09.07.2024 passed by the learned Special (NDPS) Judge and 2nd Additional Sessions Judge, Banaskantha at Deesa, in Special (NDPS) Case No.12 of 2021, whereby the learned Special Judge convicted the respondent-appellant (i.e. the original accused no.1) for the offences punishable under Sections 8(c) and 17(b) of the Narcotic Drugs and Psychotropic Substances Act, 354D(1)(i) of the Indian Penal Code, 1985, and sentenced him as under :
| Section under NDPS Act | Imprisonment | Fine Amount | In default of payment of fine |
| 8(c), 17(b) | Rigorous Imprisonment for three years | 10,000 | Simple Imprisonment for six months |
2. The case of the prosecution, in a nutshell, is as under :
(ii) That a complaint came to be lodged against the present respondent-accused at the Dhanera Police Station, District Banaskantha, for the offences punishable under Sections 8(c), 17(b) and 29 of the NDPS Act, which was registered as I-CR No.11195018210713 of 2021.
(iii) That pursuant to the FIR, the investigation was carried out, and during the investigation, the necessary panchnamas were drawn and the statements of the witnesses conversant with the incident were recorded. After the completion of the investigation, charge-sheet came to be filed against the present respondent-accused for the offences punishable under the provisions of the NDPS Act before the learned 2nd Additional Sessions Judge, Banaskantha at Deesa, which was registered as Special (NDPS) Case No.12 of 2021.
(iv) The learned Additional Sessions Judge framed the Charge vide Exh.18 against the present respondent-accused, whereupon the respondent-accused pleaded innocent and claimed to be tried.
3. To bring home the charge against the respondent-accused, the prosecution examined, in all, 16 witnesses and adduced 44 documentary evidence in support of the case, which are as follow:
| WITNESSES | ||
| NO. | NAME | EXHIBIT |
| 1. | Visaji Sagnathji Rathod, P.S.O. | 23 |
| 2. | Dhirendra Naranbhai Panchal, Circle Officer | 28 |
| 3. | Parasmal Mafaram Parmar, Eco Driver | 35 |
| 4. | Jitendrakumar Devabhai Dabhi, Panch | 41 |
| 5. | Gulabsinh Kalusinh Waghela, Weighing Machine Panch Witness | 54 |
| 6. | Deep Manharkumar Patel, Scientific Officer | 58 |
| 7. | Rasengbhai Khanabhai Chaudhari, Complainant | 63 |
| 8. | Naranbhai Ghudabhai, Writer Head | 66 |
| 9. | Sureshbhai Haribhai Fof, Police Witness | 69 |
| 10. | Kantibhai Ganeshbhai, Driver of the Government Vehicle | 73 |
| 11. | Jitendrakumar Bhathibhai Chaudhari, Raiding Party Officer | 78 |
| 12. | Karankumar Dardhabhai Chaudhari, Panch | 87 |
| 13. | Jorsinh Bhupatsinh Kalma, Check Post Witness | 90 |
| 14. | Govindbhai Narnaji Patel, Police Witness | 93 |
| 15. | Rituben Manojkumar Sharma, F.S.L. Officer | 98 |
| 16. | Bharbhai Chhelabhai Chhatraliya, I.O. | 103 |
| 17 | Aabadkhan Dadmiya Ghasura, I.O. | 104 |
| DOCUMENTARY EVIDENCE | ||
| SR. NO. |
| |
The appellate court should respect the trial court's discretion in sentencing unless the sentence is manifestly inadequate or illegal.
The enhancement of sentence requires clear evidence of the offence's gravity, which was not demonstrated in this case, leading to the dismissal of the appeal.
Accused of an offence under Act shall not be released on bail during trial unless mandatory conditions provided in Section 37 are satisfied.
(1) Once accused is found to be in illegal possession of narcotic substance/drugs, if in circumstances so warranted, can be awarded sentence higher than minimum prescribed/provided under NDPS Act.(2)....
The court considered the imposition of imprisonment in default of payment of fine and referred to relevant case laws to justify the modification of the sentence.
The court affirmed the conviction under the NDPS Act, ruling that the entire weight of narcotic mixtures must be considered for determining commercial quantity, and modified the sentence from 12 to 1....
Illicit contraband – Conviction modified - Merely regulatory and more or less its compliance has also been made that does not create any dent in prosecution case, trial court was justified in convict....
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