FAKIR IMAMSHA DAVALSHA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) CHALLENGE in this appeal is to the judgment and order dated 12.08.2009 rendered by learned Special Judge (NDPS) and 3rd Fast Track Court, Mehsana camp at Visnagar in Special NDPS Case No.1 of 2008 whereby the appellant herein, who was original accused in the aforementioned sessions case came to be convicted for the offence punishable under Section 20(b)(ii)(B) r/w.Section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act', for short) and was sentenced to undergo RI for 10 years and fine of Rs.1 Lac, in default of payment of fine, RI for 2-1/2 years.

(2.) ACCORDING to the prosecution case, Mr.K.T. Manjaria, PI CID Crime, Gandhinagar, on 23.1.2008, received the secret information that the appellant ? accused was storing and selling 'Ganja' in his house. Upon receipt of said information, the information was reduced into writing and was forwarded to his immediate superior. Thereafter, panchas were called and they were apprised about the secret information and about the proposed raid. Mr.Manjaria, PI, along with two panchas and other police personnel raided the house of the accused and in presence of accused, recovered 'Ganja' weighing 9 kgs. and 140 gms. Panchnama regarding seizure of 'Ganja', preparation of samples, sealing etc. came to be prepared. Mr.Manjaria lodged FIR against the accused regarding this offence in CID Crime police station, Gandhinagar. During the course of investigation, statements of material witnesses were recorded. Samples of 'Ganja' were sent to FSL for analysis. Statement of accused came to be recorded u/s.67 of the NDPS Act. After the completion of the investigation, chargesheet came to be filed in the Special Court (NDPS), Mehsana, which was registered as Special NDPS Case No.1 of 2008.

(3.) MR.A.J.Desai, learned APP for the respondent ? State vehemently opposed this appeal. However, it is submitted that as per the table attached to the NDPS Act, the quantity of 'Ganja', weighing 9 kgs. and 140 gms is intermittent quantity, which is greater than small quantity, but lesser than commercial quantity and the maximum sentence prescribed for possessing intermittent quantity of 'Ganja' is RI for 10 years and maximum fine prescribed is Rs.1 Lac. It is submitted that as per Sr.No.55 pertaining to 'Ganja', in the table annexed to the NDPS Act, upto 1 kg., it is considered to be small quantity and in the instant case, the quantity seized from the accused is almost 9 times more than the small quantity i.e. 'Ganja' seized from the accused was weighing 9 kgs. and 140 gms. It is, therefore, submitted that in the instant case, the request made on behalf of the appellant ? accused that the period undergone by now by the accused in jail would be the sufficient sentence, should not be accepted. It is, therefore, submitted that the appeal may be dismissed.