BHAGWAN UCCHAV PRADHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present appeal is preferred against the judgment and order dated 21st February, 2009, passed by the learned Special Judge ( under Narcotic Drugs and Psychotropic Substances Act, 1985 Act ), Surat, in NDPS case No. 1 of 2003. By the said judgment and order, the appellant herein was convicted for the offences under section 8(c) read with section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act'), and sentenced to rigorous imprisonment for ten years, and to pay fine one lakh rupees, and in default of payment of fine, to undergo rigorous imprisonment for further period of one year. It was directed that the accused-appellant would be entitled to benefit of set-off etc..

(2.) STATED briefly, the prosecution case was that when on 16.10.2002, Shri K. K. Patel, Police Sub Inspector, DCB Police station, Surat was on duty, at that time, the PSI of Kalavad Police station came to the DCB office and requested for help. One Haroon Siddik Odia was accompanying him. It was stated by said PSI that against the said Haroon Siddik Odia, offences under the NDPS Act were registered at Kalavad Police station at Crime Register No. 55 of 2002, and that from him 1700 grams Ganja was found. Said accused had stated that he had purchased the said contraband substance from one Bhagwan Pradhan staying at Room No. 2265 in Ashoknagar slum area, Ashwinikumar area of Surat. On the basis of this report, it was decided to conduct a raid at the place of information. After undergoing necessary procedure of making entry in the station diary, recording panchanama etc. the raiding squad alongwith said Haroon Siddik went to Ashoknagar slum area at around 13:15 hrs. in a vehicle. They reached then to room No. 2265 by walking. Near to the said room, a person was standing who was not properly understanding the Hindi language. An interpreter was called and through him, identity of the said person was inquired. The person stated that he was Bhagwan Uchchav Pradhan-appellant herein. He was then asked whether he wanted to be searched in the presence of a gazetted officer, but he replied in the negative and consented to be searched by the raiding staff. It was the case of the prosecution that thereafter, the raiding party entered the room; near the right side wall of the room, substance looking like Ganja was lying. A green coloured weighing machine and some cash were also located. There were cotton bags filled with substance appearing to be like Ganja with green leaves. A plastic bag containing Ganja was also found lying. The quantity of 40.310 kg. Ganja was seized which was stated to be in the possession of the appellant. The samples were taken and were sealed in accordance with the procedure.

(3.) LEARNED advocate for the appellant Ms. Sadhna Sagar submitted on instructions that in the facts of the case, she did not press the appeal in so far as the recording of conviction against the appellant is concerned. It was submitted that the appeal was required to be considered in the context of the remaining part of the sentence only, which is the requirement of payment of fine of one lakh rupees and the default imprisonment in the event of non- payment of fine for further one year. Learned advocate submitted that the appellant having already suffered the main part of the sentence and he being a poor person, he may be exempted from payment of amount of fine. It was also submitted that the period of default imprisonment may be reduced and the same may be modified to one already undergone. She relied on the decision of the Supreme Court in Shantilal vs. State of MP [(2007) 11 SCC 243]. Learned APP would submit that the amount of fine statutorily imposable sentence and since the challenge to conviction was given by the appellant, as stated by his advocate, there can be no waiving of amount of fine. He invited attention of the Court to section 20(b)(ii)(C) to submit that the minimum term of imprisonment was ten years and the minimum amount of fine of one lakh rupees.