VIVEKBHAI ASHOKBHAI SHRIVASTVA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THESE appeals have been preferred from the judgment and order dated 07.09.2007 of learned Additional Sessions Judge, Navsari in Special N.D.P.S. Case No.4 of 2005. Learned counsel Mr. R.M. Agarwal appearing for the appellants submitted at the outset that on instructions of the appellants he restricts his argument only to reduction of sentence, and hence merits of conviction of the appellants for the offences punishable under Section 20 read with Sections 8 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the Act') are not required to be discussed. It was submitted and it could not be controverted by learned A.P.P. that after appreciation and elaborate discussion of the evidence on record, the trial court has, in the impugned judgment, come to the conclusion that the appellants were found in possession of contraband (gaanja), which weighed four kilograms or less separately with each of the appellants. However, the trial court considered it to be commercial quantity and applied that criterion for imposition of punishment. That provision required imposition of rigorous imprisonment for ten years as provided under Section 20. Thus, the basis for imposition of punishment was ex-facie illegal and wrong.

(2.) LEARNED counsel relied upon judgment of the Supreme Court in Ghasita Sahu v. State of Madhya Pradesh (AIR 2008 SC 1425) wherein it was held that the quantity of Gaanja was less than the commercial quantity and as the accused were also behind bars and had completed four years in jail and were coming from poor background, the punishment was required to be modified. The Apex Court also reduced the amount of fine from Rs.20,000/- to Rs.10,000/- in that case. In a similar case, this Court has vide judgment dated 24.08.2011 in Criminal Appeal No.2036 of 2009 held that as per item at sr.no. 55 in the table prescribed under Section 2 of the Act, commercial quantity of gaanja is specified to be 20 kilograms, and hence the quantity in the facts of the present case was less than the commercial quantity, but greater than small quantity.

(3.) HAVING regard to the facts and circumstances, the appeals are partly allowed and the order of sentence is modified so as to impose punishment under Section 20(b)(ii)(B) and the substantive sentence of rigorous imprisonment is reduced to the period already undergone by the appellants. The amount of fine shall also stand modified and reduced to Rs.10,000/- in case of each of the appellants with the stipulation that, in case of failure to pay the amount of fine, the appellants shall undergo further simple imprisonment for a period of one month. The appeals accordingly stand partly allowed.