DAVE NILESHKUMAR BHARATBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) CHALLENGE in these two appeals filed under Section 374 of the Code of Criminal Procedure ('the Code' for short) is to the correctness of the judgment and order dated 6.11.2003 rendered in Special (NDPS) Case No. 1 of 2003 by the learned Special Judge, Fast Track Court, Patan, by which the appellants of both the appeals original accused No. 2 and 1 respectively ("the Accused" for short) have been convicted for commission of the offences punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 ('NDPS Act' for short) and are sentenced to suffer RI for 10 years and fine of Rs.1 lac, i.d., R.I. for 2 years.

(2.) BRIEFLY stated, the prosecution case as disclosed from the complaint as well as unfolded during trial, is as under:

(3.) MR . R.M.Agarwal, the learned advocate of the accused in both the appeals, at the outset submitted that he does not challenge the order of conviction on merits. However, he challenges the order of sentence. According to him, the trial Court has held that the quantity of 100 gram Ganja is a small quantity whereas quantity of 1Kg Ganja is a commercial quantity, is not correct. According to him, as per the notification dated 19.10.2001, at Item No. 55, small quantity and commercial quantity of Ganja is mentioned as 1000 grams, i.e. 1Kg of Ganja is a small quantity, whereas 20 Kg of Ganja is a commercial quantity. So far as both the accused are concerned, 2kg 630 grams of Ganja was jointly recovered from them, therefore, the accused ought to have been convicted and sentenced under Clause 20(b)(ii)(B) of the NDPS Act, whereby the benefit of the rationalized sentencing structure has been given to the accused. As per the said notification, the accused ought to have been sentenced for commission of the offence for possessing narcotic drug weighing less than commercial quantity, where the maximum punishment is RI for 10 years. The accused are in jail for more than 4 years and 3 months, therefore, benefit of the rationalized sentencing structure under the NDPS Act should be given to the accused and the period of imprisonment undergone by both the accused may be treated as substantive sentence. Therefore, he urged that while upholding the order of conviction for commission of the offence, recorded against both the accused, under Section 20(b)(ii)(C) under the NDPS Act, may be altered into conviction recorded under Section 20(b)(ii)(B) of the NDPS Act, and sentence may be altered by reducing the sentence undergone by both the accused, and the appeal may be partly allowed accordingly. He, therefore, urged to allow the appeal qua altering the conviction and sentence.