AI Structured Summary
Not yet generated for this judgment
Judgment
A.L. Dave, J.—This appeal arises out of a judgment and order rendered by the City Sessions Court No. 7, on 2.12.2002, in Sessions Case No. 46/2001, convicting the appellant for the offence punishable u/s 20 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ["N.D.P.S. Act" for short] and sentencing him to undergo R.I for fifteen years and to pay a fine of Rs. 1,50,000/-, in default, to undergo R.I for one-and-a-half year.
The brief facts of the case are that Mr. Bhalla, an officer in Narcotics Control Bureau ["NCB" for short] received an intelligence on 25.12.2000 that one Mohammed Aslam alias Aslam Tunda will be going with a consignment of charas on his LML scooter bearing registration No. GJ-1-AA-302, having an attached sidecar, from Kalupur side to Naroda side around 6.30 A.M, on 26.12.2000, that, he is aged about 52 to 55 years and has short physique, with a crippled hand. The said information was passed over by Mr. Bhalla to Zonal Director, NCB, Ahmedabad on that very day, i.e. 25.12.2000. Thereafter, a watch was arranged at the relevant time in the morning on 26.12.2000 in presence of two panch witnesses. One of the panch witnesses was an employee of the Income Tax Department, who was summoned through his superior officer.
2.1 During the watch, the appellant was found coming on the said scooter to which a sidecar was also attached. He was intercepted and he was found to be carrying three packets of charas in the sidecar. The total weight of the charas was 12.296 Kgs. Thereafter, he was interrogated and from what was disclosed by him during the interrogation, his house was searched and from his house, four packets of charas weighing 11.126 Kgs., were seized. Samples were drawn, muddamal was sealed and the appellant was arrested. The statement of the appellant u/s 67 of the N.D.P.S. Act was recorded. The samples were sent to F.S.L for chemical analysis and the contraband seized was found to be charas. Ultimately, a complaint was lodged by Mr. Bhalla of NCB, Ahmedabad, which was registered as Sessions Case No. 46/2001.
Charge was framed against the appellant-accused at Exh.3 for the offence punishable u/s 29 r.w. Section 20(B) of the N.D.P.S. Act, to which he pleaded not guilty and came to be tried.
3.1 Considering the evidence led by the prosecution, the trial Court came to the conclusion that the complainant was successful in establishing the charges against the appellant-accused and recorded his conviction and sentence, as narrated earlier in this judgment.
The appellant-convict has challenged the judgment and order of conviction on various grounds. The learned advocate Mr. Saiyed for the appellant also raised certain grounds, like, non-examination of Mr. Bhalla, presence of panch witness in his office, as stated by the defence witness examined from that office viz. Income Tax Department, evidenciary value of the statement recorded u/s 67 of the N.D.P.S. Act etc., though feebly. Ultimately, he gave up those contentions and submitted that the appellant cannot seriously challenge the conviction part. He however submitted that the sentence awarded by the trial Court is on the higher side and runs harsh on the appellant. Considering the background of the appellant and the circumstances, which led him to indulge in such activity, the Court ought to have taken a sympathetic view. He submitted that the appellant is a semi-literate person and has studied upto vernacular Std. 4. He also submitted that the appellant was working in a cycle-store, getting a meagre amount by way of remuneration. He had aged and ailing father to look-after and two sons and a daughter, besides his wife, to be taken care of. Mr. Saiyed submitted further that the real culprit is his poverty and social circumstances, which forced the appellant to indulge in such activity. He submitted that the appellant''s involvement is only as a transporter, who would get some remuneration for the work that he would have done. Mr. Saiyed submitted further that post-conviction, the appellant''s family has also suffered, his father has expired, his elder son has left the appellant''s house and is staying separately and his younger son is studying in Std.12. The appellant''s wife is ailing from orthopaedic and cardiac problems. The appellant is suffering from physical disability to the extent of 65% and has no previous conviction. Mr. Saiyed ultimately submitted that the appellant does not press this appeal on merits so far as his conviction is concerned, but, prays for reduction in sentence.
Learned advocate for NCB Mr. Abichandani submitted that he would not agitate much on quantum of sentence. According to him, it is the discretion of the Court and it may be appropriately exercised.
5.1 Learned A.P.P. Mr. Mengdey supports the submissions made by learned advocate Mr. Abichandani.
We have examined the record and proceedings for our satisfaction and we find that learned advocate Mr. Saiyed is justified in not challenging the conviction. The evidence, as led by the prosecution, establishes the involvement of the appellant in the offence beyond reasonable doubt.
Now, when the appellant has not pressed this appeal on merits so far as conviction aspect is concerned, what is required to be examined is the quantum of punishment.
We notice that the appellant was aged 55 years at the time of commission of the offence. He had an ailing father, aged about 75 years, to look-after. He had his own family consisting of his wife, two sons and a married daughter to be taken care of. We also notice that around the time when the incident occurred, the appellant was working as a helper in a cycle-store. We can imagine his earnings therefrom. It is also to be recognised that the appellant was and is suffering from permanent partial disability to the extent of 65% of the upper limb. With these socio-economic backgrounds of the appellant, probably he would have been tempted to indulge in such anti-social and anti-national activity. If he has indulged himself in such activity, he has to be punished and has to suffer therefor. But, while deciding the quantum of punishment, certainly his circumstances will have to be kept in mind. The circumstances, which we have narrated earlier, were, more or less, compelling in nature. It is possible that a man with stronger morale would have withstood such circumstances, but, then every human being may not possess that quality.
Though, according to us, not very relevant, but post-conviction developments have also made him and his family to suffer. The appellant has lost his father in April, 2008, a shelter for his family. The appellant''s elder son has left family after marriage in the year 2004 and is staying separately. The appellant''s wife is ailing from orthopaedic and cardiac problems. The appellant''s wife has in her support only her younger son studying in Std.12, as her daughter is also married and staying in her matrimonial home. It is also to be noted that the appellant himself is suffering from physical disability to the extent of 65% and has no previous conviction by way of antecedents.
Considering the above aspects, we are of the view that ends of justice would be met if the appellant is awarded punishment of R.I for a period of ten years with a fine of Rs. One Lac, in default, to undergo S.I for one year.
We accordingly partly allow this appeal while confirming the conviction and altering the sentence from 15 years'' R.I, and fine of Rs. 1,50,000/-, in default, R.I for one-and-a-half year, to R.I for ten years with a fine of Rs. One Lac, in default, S.I for one year.