ABDUL KADER JUSAB SANDHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Original accused Nos.1 and 2 have preferred this appeal against the order of conviction recorded by the learned Additional Sessions Judge, Jamnagar, on 05.08.1996, in Sessions Case No.9 of 1995. By the said order, accused No.1 was held guilty for an offence punishable under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("NDPS Act" for short) and for an offence punishable under Section 22 of the NDPS Act. Accused No.2 was held guilty for an offence punishable under Section 20(b)(ii) of the NDPS Act. The Trial Court sentenced accused No.1 to undergo R.I. for a period of 10 years and to pay a fine of Rs.1 lakh (in default of payment of fine, to undergo simple imprisonment for five years) for the offence punishable under Section 20(b)(ii) of the NDPS Act and rigorous imprisonment for 10 years and a fine of Rs.1 lakh (in default of payment of fine, to undergo simple imprisonment for five years) for the offence punishable under Section 22 of the NDPS Act. The Trial Court directed that both the sentences shall run concurrently. So far as accused No.2 is concerned, the Trial Court sentenced him to undergo 10 years rigorous imprisonment and to pay a fine of Rs.1 lakh (in default of payment of fine, to undergo simple imprisonment for five years) for the offence punishable under Section 20(b)(ii) of the NDPS Act.

(2.) The facts of the case, in a nutshell, are as follows :-

(3.) At the outset Mr. Budhbhatti submitted that, so far as accused No.2 is concerned, he was tried for contravention which relates to Ganja. He submitted that reading clause (i) of sub-section (b) of Section 20, it is clear that, if the contravention relates to Ganja, then in that case, the accused can be sentenced to rigorous imprisonment for a term which may extend to 5 years and can also be held liable to pay a fine which may extend to fifty thousand rupees. He submitted that, so far as accused No.2 is concerned, even if it is not argued on merits, then also he is required to be released forthwith as he has already undergone the aforesaid period. Mr. Budhbhatti submitted that the learned Additional Sessions Judge, while recording the conviction, has misread the provision. It is not the case of the prosecution that both were acting in criminal conspiracy. He submitted that there is negative finding under Section 29 of the NDPS Act.