GULAM RASUL PIRU MALEK Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellant is the original accused. By impugned judgement and order dated 9. 12. 2004 passed by learned Sessions Judge and Special Judge, Bharuch in Special N. D. P. S. Case No. 5/2003, he was convicted for offence punishable under Section 20 (b) (ii) (B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (here-in-after referred to as "the NDPS Act") and sentenced to rigorous imprisonment of seven years and fine of Rs. 50,000/- was also imposed. In default of payment of fine, he had to undergo simple imprisonment of six months.

(2.) LEARNED advocate Ms. Roopal Patel appearing for the appellant submitted that conviction and sentence are illegal and unlawful and that there are number of procedural and substantial defects in the investigation. She submitted in the alternative that sentence is also harsh and excessive. She submitted that if the Court is inclined to consider the question of adequacy of sentence, it would not be necessary for the appellant to press appeal on merits. 2. 1 With respect to sentence, she submitted that even as per the prosecution case, the accused was found with ganja weighing 1250 grams. She pointed out that small quantity of ganja is prescribed under the NDPS Act as 1000 grams and commercial quantity is prescribed as 20 kgs. She also drew my attention to the provisions contained in Section 20 of the NDPS Act to point out that for carrying small quantity, maximum sentence permissible under the law is six months. For carrying ganja higher than the small quantity and lesser than the commercial quantity, law prescribed maximum punishment of 10 years. She therefore, submitted that sentence of seven years of rigorous imprisonment was highly excessive.

(3.) ON the other hand, learned APP Shri Bhatte produced the jail record of the accused from which it can be seen that he had already undergone sentence of more than five years and one month. He submitted that the conviction and sentence called for no interference.