MOHMADTAKI AGA MEHNDI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE instant appeal is preferred by the appellant against the judgment and order rendered by the Special Judge (NDPS) at Nadiad on 10.2.2000 in Special Case (NDPS) No. 5 of 1998 whereby the present appellant being accused No. 1 came to be convicted by the trial Court for the offence punishable under Section 20(b) of the Narcotic Drugs and Psychotropic Substance Act, 1985 and was sentenced to undergo rigorous imprisonment of 10 years and to pay a fine of Rs. 1 lakh, in default, to undergo rigorous imprisonment of two years.

(2.) AS per the brief facts of the prosecution case, PSI Indrasinh Mansinh Kumpavat of Khambhat City Police Station on 19.6.1998 was in patrolling and investigating other offences came to Daliba area and near the house of accused No. 1. On seeing the police, the present appellant and his wife accused No. 2 in the trial Raisabegum both tried to run away. The police party cordoned them both and from the personal search of the present appellant, one plastic bag of pink colour and one plastic bag of white colour were found from the pant pockets of the appellant. From bags, contraband substance was found and, therefore, panchas were called and the substance was weighed. The substance found from the appellant was 381 gms. Prima facie, it appears that substance was charas and it was confirmed by the Forensic Science Laboratory. The FIR came to be lodged against both the accused and in pursuance of the investigation, a chargesheet came to be filed. The case was committed to the Special Judge who framed the charge against both the accused vide Exh.3 to which both the accused pleaded no guilty. The charge was framed under Sections 20(b), 22 and 29 of the NDPS Act, 1985 as amended by 1988 Act. The prosecution examined as many as 9 witnesses and produced on record voluminous documentary evidence. Incriminating circumstances were brought to the notice of both the accused and their defence was of total denial. After hearing the prosecution as well as defence, learned trial Judge was pleased to acquit accused No. 2 Raisabegum - wife of the appellant accused No. 1. Against that, no appeal has been preferred, while the appellant accused No. 1 preferred the present appeal.

(3.) LEARNED advocate Ms. Desai for the appellant does not press the appeal on merit and restricted her argument to the extent of reduction of sentence which is imposed by the trial Court in default of paying fine by the appellant. It is submitted that record of the appellant is clean. He is only bread winner of the family and he has already undergone substantive sentence of 10 years as imposed by the trial Court. It is submitted that, now at present, the appellant is undergoing default punishment on account of nonpayment of fine of Rs. 1 lakh and, therefore, it is requested that this appeal is restricted only to reduce the default imprisonment in lieu of fine as awarded by the trial Court to already undergone by the appellant.