Nemichand S/O Majhlu Soren vs State Of Gujarat

The above mentioned all the three appeals are arising out of the judgment of conviction as well as acquittal recorded

by learned Special Judge & 8th Additional District & Sessions Judge, Vadodara in NDPS Case No.19 of 2010. Therefore, all the three appeals are taken up together for final hearing as the said appeals are arising out of the same impugned judgment.

Criminal Appeal No.766 of 2012 is the appeal preferred by the original accused Mr. Nemichand Soren challenging his conviction as well as sentence of rigorous imprisonment for a period of seven years and fine of Rs.50,000/- imposed upon him by learned Special Judge in NDPS Case No.19 of 2010.

Criminal Appeal No.844 of 2012 is the appeal preferred by the State of Gujarat under Section 377 of the Criminal Procedure Code,1973, seeking enhancement of the sentence imposed with the judgment and order of conviction and sentence dated 20.04.2012 recorded by learned Special Judge

& 8th Additional District & Sessions Judge, Vadodara in NDPS Case No.19 of 2010.

Criminal Appeal No.850 of 2012 is the appeal preferred by the State of Gujarat under Section 378 of the Criminal Procedure Code, 1973, challenging the impugned judgment and order dated 20.04.2012 passed by learned Special Judge & 8th Additional District & Sessions Judge, Vadodara in NDPS Case No.19 of 2010 acquitting the original accused no.2 Mr. Pravin D. Luhar.

Record and proceedings indicates that on 29.08.2010, Mr. B.M. Tank, Police Inspector, In-charge LCB, Vadodara Paschim Railway was discharging his duty of carrying out the checking at platform no.1 of Vadodara Railway Station at about 17:20 hours along with his team and at that time, one person having black colour bag on his shoulder was going in suspicious condition. He was intercepted and on checking him, four different packets containing Ganja were found and therefore, the Police Inspector asked for pass or permit for possessing it. The accused could not produce such license and therefore, he was asked to sit there and necessary procedure with regard to FSL Report was carried out and ultimately it was found that accused no.1 was having 13.150 kilogram of Ganja valued at Rs.32,875/-. The complainant and accused as well as other persons were taken to the police station and a complaint was lodged with the police. Muddamal was handed over to the police. After the offence was registered, investigation was conducted, statements were recorded and also arranged for sending articles for FSL examination. After collecting the evidence against the accused, charge-sheet was presented before the Special Court constituted under the N.D.P.S. Act for trial.

The present appellant came to be charge-sheeted and during the course of interrogation, he was asked to give the names of the persons to whom he was to deliver such contraband articles and for which he gave name of accused no.2 - Mr. Pravin D. Luhar and therefore, both of them came to be charge-sheeted as well as he also gave the name of one Mr. Bablu Rajput from whom the original accused no.1 alleged to have purchased the said Ganja however, no details regarding Mr. Bablu was furnished. Therefore, he could not be charge-sheeted and he was shown as absconding accused as such.

In view of aforesaid factual position, upon completion of investigation, a detailed trial was undertaken against both the accused and the learned trial court while recording conviction against the accused Mr. Nemichand Soren sentenced him to undergo rigorous imprisonment for a period of seven years and ordered to pay Rs.50,000/- fine and in default of payment of fine, rigorous imprisonment for a period of one year was imposed and the accused Mr. Pravinbhai D. Luhar came to be acquitted as prosecution had miserably failed to connect him with the crime in question. Therefore, the aforesaid all the three appeals are arising out of the same impugned judgment as narrated above.

Heard Mr. G.P. Baghel, learned advocate for the appellant in Criminal Appeal No.766 of 2012 and Ms. C.M. Shah, learned APP for the respondent-State.

At the time of arguments, learned APP Ms. Chetna Shah pointed out that the appellant Mr. Nemichand Soren had already undergone substantive sentence of seven years as well as default sentence of one year and he came to be released from jail after serving out the sentence on 31.08.2018 and therefore, the appeal against his conviction has now remain merely academic and has become infructuous and she also places on record the jail remarks of accused Nemichand which is ordered to be taken on record.

As regards to the adequacy of sentence, provision of Section-20 of The Narcotic Drugs and Psychotropic Substances Act, 1985 is reproduced below:

"20. Punishment for contravention in relation to cannabis plant and cannabis. - Whoever, in contravention of any provisions of this Act or any rule or order made or condition of licence granted thereunder,-

(a) cultivates any cannabis plant; or

(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable-[(i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees; and

(ii) where such contravention relates to sub-clause

(b),-

(A) and involves small quantity, with rigorous imprisonment for a term which may extend to [one year], or with fine, which may extend to ten thousand rupees, or with both;

(B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;

(C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.]"

Indisputably, the contraband Ganja weighing about 13.150 kilogram came to be seized from the possession of accused no.1 Nemichand Soren which is lesser than the commercial quantity and greater than the smaller quantity and therefore, the offence falls punishable under Section 20(B) of The N.D.P.S. Act, 1985. The said section provides maximum sentence to the extent of ten years and fine of rupees one lakh. No minimum sentence is provided under the said provision of law and therefore, the learned trial court while delivering the judgment after considering the factual scenario as well as family background stationed in life of the accused imposed sentence of seven years as well as fine of Rs.50,000/-which in the opinion of this Court commensurate with the provisions of law which calls for no interference.

In view of the aforesaid position since the accused has already undergone the sentence and there appears no scope of enhancement of sentence and therefore, the Criminal Appeal No.766 of 2012 filed by the accused-appellant and Criminal Appeal No.844 of 2012 filed by the State for enhancement of sentence stands dismissed.

So far as acquittal appeal of State of Gujarat against original accused no.2 Pravin D. Luhar is concerned, indisputably the record and proceedings clearly indicates that his name came to be disclosed from the mouth of accused no.1 Nemichand and upon strength of such information, he came to be impleaded as accused no.2 to whom the aforesaid seized contraband article Ganja was to be delivered. In that view of the matter, since no independent evidence is available from the record so as to connect the accused no.2 Pravin D. Luhar as the purchaser of aforesaid Ganja and therefore, the learned trial court has rightly acquitted the accused no.2 Pravin D. Luhar which calls for no interference as there appears no scope of converting his acquittal into conviction and therefore, the appeal preferred by the State against him also stands dismissed. Though the learned APP Ms. Chetna Shah argued that since his name came to be disclosed as well as certain communication through cellphone is brought on record, he could be linked with the crime in question and he is required to be convicted. Her argument is not at all acceptable since his name came to be disclosed by the accused and upon the strength of this information accused no.2 came to be impleaded and no independent evidence conclusively revealing this complicity is brought on record so as to link him with the crime in question and therefore, this Court is not inclined to reverse the judgment of learned trial court, so far as acquittal of accused no.2 - Pravin D. Luhar is concerned.

For the reasons recorded above, all the aforesaid appeals stand dismissed. R & P be sent back to the learned trial court forthwith.