ASARAFKHAN RUSTAMKHAN PATHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Challenge in this appeal filed under Section 374 (2) of the Code of Criminal Procedure ('the Code' for short) is to the correctness of the judgment and order dated 26.4.2002 rendered in Sessions Case No. 299 of 2000 by the learned Additional City Sessions Judge, Court No.9, City Sessions Court, Ahmedabad, by which the appellant ('the accused' for short) has been convicted for commission of the offences punishable under Section 8 (c ) read with Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the NDPS Act' for short) and sentenced to suffer R.I. for eight years and fine of Rs.50,000/- i.d., R.I. for further period of one year.

(2.) The prosecution case as unfolded during trial is as follows:

(3.) Mr. Darshan Kinariwala, learned advocate of the accused, has submitted that he does not challenge the impugned judgment and order so far as the conviction recorded by the learned Judge of the trial court against the accused is concerned. However, he has submitted that the quantum of sentence of RI for 8 years and fine of Rs.50,000/- imposed upon the accused is a little bit harsh looking to the quantity of the contraband article recovered from the accused which was of 154.6 grams. According to him, as per the latest notification issued under the NDPS Act, so far as brown sugar is concerned, quantity of 5 grams is considered to be small quantity whereas 250 grams is considered to be commercial quantity. The chemical name of the contraband article 'brown sugar' recovered from the accused is heroin. In view of the amended provisions of the NDPS Act, for possessing less than commercial quantity punishment prescribed is RI upto ten years and there is no minimum sentence prescribed. Since the minimum sentence prescribed for possessing commercial quantity is RI for ten years, for possessing less than the commercial quantity, sentence of RI for 8 years and fine of Rs.50,000 is a little bit harsh and deserves to be reduced. He, therefore, submitted that the sentence of RI for 8 years and fine of Rs.50,000/- imposed on the accused may be modified by imposing sentence of the period of imprisonment already undergone by the accused as substantive sentence. The accused is in jail since his arrest i.e., 30.5.2000. Therefore, by now he has undergone imprisonment for more than six years and taking a liberal and lenient view, the sentence may be modified by imposing the period of imprisonment undergone by the accused so far may be treated as substantive sentence and thereby the appeal may be allowed accordingly.