RASULBHAI AMARSING VASAVA vs STATE OF GUJARAT

Present appeal has been preferred by the appellant - original accused being aggrieved and dissatisfied with the judgment and order dated

07/07/2009 passed by the learned Special Judge, Narmada @ Rajpipla in NDPS Case No. 02 of 2008, whereby, the present appellant - original accused held to be guilty for the offence under Sections 8(b) (c), 20(a)(b) and 29(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, ''the Act'') and sentenced to undergo rigorous imprisonment (RI) for ten years and a fine of Rs.1,50,000/- and in default of payment of fine, to undergo further RI for two years.

Facts in nutshell of the case on hand are such that on 23/08/2008 at about 14:25 hours, on the road bound to Pat village from Sagbara town, opp. primary school, behind State Bank of India, in the nearby croft (vado) to the hut of the appellant - accused situated on survey No. 119 P, the appellant - accused was found to be cultivating ganja with a view to get financial gain, without any pass or permit and 3679 plants of fresh ganja weighing 33 kg. and 400 gm. and 250 gm. dry ganja as well as dry posh doda weighing 03 kg., all worth Rs.1,71,000/-, were seized from the spot. Thus, the appellant - accused arrested for committing offence under Sections 8(b)(c), 20(a) (b) and 29(1) of the Act for which, a complaint came to lodged against him.

2.1 Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed. The trial Court framed the charge against the accused, which was read over to him. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. In order to bring home the charge against the accused, the prosecution has examined as many as 13 witnesses and also produced several documentary evidence. At the end of the trial, Further Statement of the accused under Section 313 of Criminal Procedure Code, 1973 (for brevity, ''the Code'') was recorded, in which, the accused denied the evidence forthcoming on the record and stated that a false case has been registered against the accused. Thus, after recording above- referred Further Statement and hearing the arguments on behalf of prosecution and the defence, the learned Special Judge has come to the aforesaid conclusion by the impugned judgment and order.

Heard Mr. Rajendra Patel, the learned advocate for the appellant - accused and Mr. K. L. Pandya, the learned Additional Public Prosecutor, for the respondent - State.

3.1 The learned advocate for the appellant - accused has restricted his arguments qua sentence part and has submitted that the learned trial Court has committed a grave error while appreciating the evidence on record and has failed to consider the fact that the quantity seized was less than the commercial quantity and more than small quantity and the said crucial aspect, the learned trial Judge has failed to consider in its true and proper perspective and thereby, has committed a grave error in coming to such a conclusion. He submitted that so far as ganja is concerned, as per the Notification issued by the Central Government under Clauses (viia) and (xxiiia) of Section 2 of the Act, as per the entry at serial No. 55 in the table in the said Notification, the quantity of such contraband can be commercial quantity if it exceeds 20 kg. and so far as the case on hand is concerned, the quantity seized of dry ganja is 250 gm. and the quantity seized of dry posh doda is 3 kg. Thus, considering the aforesaid entry No. 55, the quantity seized is less

than 20 kg. and more than 1000 gm. and accordingly, it is less than commercial quantity and more than small quantity.

3.2 The learned advocate further submits that so far as quantity of 33 kg. and 400 gm. is concerned, it is of ganja plants, which, in view of the settled position of law, cannot be treated as ganja. In this regard, the learned advocate for the appellant referred to the definition of ganja referred in Section 2(iii) (b) of the Act, which reads as under:

" Section 2(iii)(b): Ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated."

3.3 Thus, in view of the aforesaid definition, in the submission of the learned advocate for the appellant, if the cannabis plants do not carry flowering or fruiting tops it cannot be said to be ganja. Drawing attention to the Seizer Panchnama, Ex. 13, he submitted that the ganja plants seized were fresh and there is nothing on record to show that there were flowering or fruiting on the top of such plants. Further, it appears from the Seizer Panchnama that samples of leaves were taken and not of the flowering or fruiting. Even, Seizer Memo, Ex. 16 does not speak about the aspect that the seized plants were having flowering or fruiting. Further, so far as panchas of the Seizure Panchnama are concerned, the prosecution has examined only one panch witness i.e. PW-1 Udesingbhai Laxmanbhai Tadvi, Ex. 12, who has not supported the case of the prosecution. This witness has stated in his deposition that he had signed the said panchnama in the police station only and no goods were seized in his presence. He has also stated that he had seen the muddamal items seized for the first time in the police station only. Further, referring the depositions of other prosecution witnesses, the learned advocate for the appellant submitted that no prosecution witness has stated that the ganja plants, which were seized, were carrying flowers or the fruits. Accordingly, in the submission of the learned advocate for the appellant, the FSL reports appear to be contrary to the other evidence on record and in view of the fact that the plants seized were carrying only leaves and not flowering or fruiting, these plants cannot be termed as ganja as defined in above-referred definition. In that view of the matter, the learned advocate for the appellant submitted that the punishment, in proportion to such impure quantity, could have been imposed upon the appellant.

3.4 In support of his case, the learned advocate for the appellant referred to and relied upon the decisions rendered by this Court in Criminal Appeal No. 435 of 2009 dated 02/07/2014 and in Criminal Appeal No. 541 of 2008 dated 11/03/2015. Making above submissions, it is requested to minify the sentence for one from commercial quantity to the quantity between commercial and the small and to allow the appeal accordingly.

On the other hand, Mr. Pandya, the learned Additional Public Prosecutor for the respondent - State, submits that the learned trial Court has committed no error while appreciating the evidence on record. While opposing the present appeal, he has submitted that cogent and reliable evidence of prosecution witnesses has been appreciated in its true and proper perspective by the learned trial Judge

and there appears no manifest illegality and/or perversity and/or infirmity in the findings recorded and conclusion arrived at by the learned trial Judge. While referring the FSL Report and other evidence on record, he submitted that the learned trial Court, at the time of appreciation of evidence, has carefully considered the evidence on record. The findings recorded by the learned Court below are based on oral as well as documentary evidence and there being no infirmity in the said findings, the view taken by the learned Sessions Judge may be affirmed. The learned Additional Public Prosecutor also submitted that in view of the FSL reports, Ex. 63, the decisions relied upon by the learned advocate for the appellant are not applicable to the case on hand and accordingly, it is requested to dismiss the present appeal.

I have considered the submissions advanced by the learned advocates for the respective parties and gone through the impugned judgment and order passed by the learned trial Judge and also considered the evidence on record as well as perused the decisions relied by the learned advocate for the appellant - accused. The learned advocate for the appellant - accused has restricted his case to the extent that the learned trial Judge has failed to take into consideration the fact that the quantity of contraband seized was less than the commercial quantity and more than the small quantity in view of the fact that fresh ganja plants weighing 33 kg. and 400 gm. were seized and such fresh ganha plants cannot be termed as pure ganja in view of the definition of ganja, referred to herein above, as there comes nothing on record to show that the said plants were carrying flowers or fruits. From the record, it reveals that dry ganja and the dry posh doda were also seized in the quantity of 250 gm. and 03 kg. respectively. Further, a perusal

of the impugned judgment and order reveals that considering the aforesaid quantity of the contraband seized being more than the commercial quantity of 20 kg., the learned trial Court has convicted and sentenced the appellant - accused. The learned advocate for the appellant has submitted that so far as fresh ganja plants weighing 33 kg. and 400 gm. are concerned, they cannot be termed as ganja in view of the fact that there is nothing on record to show that the said plants were carrying the flowering or the fruiting so as to term them as ganja. Accordingly, I have gone through the Seizer Panchnama, Ex. 13, Seizer Memo, Ex. 16 and also gone through the deposition of panch witness Udesing Laxmanbhai Tadvi, PW-1, Ex. 12. From the Seizure Panchnama as well as the Seizure Memo, there appears nothing suggestive of the fact that the said plants were carrying the flowering or fruiting. Further, panch witness PW-1 Udesingbhai Laxmanbhai Tadvi, Ex. 12 has deposed to state in his cross-examination that no muddamal article, that was shown to him, was seized by the police in his presence and he had seen the same for the first time in the police station only. He has also stated in his cross-examination that he had not gone anywhere except police station and whatever, the procedure had been done, as narrated in the panchnama, was not done in his presence. Thus, this witness has not supported the case of the prosecution. The another panch namely Jitiyabhai Jagabhai Tadvi has not been examined by the prosecution. I have also gone through the FSL Reports, Ex. 63, which opine that the article seized was ganja. However, for ganja plants which were seized, no accurate quantity of pure ganja appears to have been mentioned in the same. Besides, the fact remains that there appears nothing on record suggestive of the fact that the seized ganja plants were carrying the flowering or the fruiting

as is required the same to be pure ganja as defined under the law.

5.1 The learned advocate for the appellant has referred to and relied upon the aforesaid two decisions rendered by this Court. It would be beneficial to refer the relevant observations made by this Court in the judgment and order dated 11/03/2015 passed in Criminal Appeal No. 541 of 2008 and hence, extracted hereunder:

" It was submitted that the total quantity, which was found and seized from the appellant, was not pure ganja but it consisted of leaves as well as flowers and, therefore, as per Section 2 (b) of the NDPS Act, in absence of purity of contraband, punishment in proportion to such impure quantity could have been imposed upon the appellant. Further, relying upon Division Bench judgment of this Court rendered in the case of Pratapbhai Surjibhai Dodiyar Vs. State of Gujarat [2011 Cr.L.R. (Guj.) 585], as well as in the case of Mashribhai Kanabhai Chauhan & Anr. Vs. State of Gujarat, in Criminal Appeal No.1025 of 2008 dated 03.04.2014, it was contended that in absence of purity test, punishment deserves to be scaled down from the one of commercial quantity to the quantity between small and commercial.

(8) Learned Additional Public Prosecutor for the respondent- State, after perusing the panchnama (Exh.37) as well as the depositions of PWs 1 to 4 and 6 to 9 as well as the report of Forensic Science Laboratory (Exh.67) has not been able to contend to the contrary.

(9) This High Court in the case of Pratapbhai Surjibhai Dodiyar (supra) while considering the case of heroin having been recovered from the accused being 766 grams and 205 grams respectively from accused Nos. 1 and 2 has observed thus:

9(1)." The report, however, does not state the exact quantity or percentage of the substance noticed in the samples. Now, in this context, if the decision of the Supreme Court, in the case of E. Micheal Raj (supra) is

seen, Their Lordships observed that heroine is an opium derivative as per Section 2(xvi)(e), which says that all preparations containing more than 0.2 per cent of morphine or containing any diacetylmorphine is an opium derivative. Thus, the court concluded that the offending substance was an opium derivative and, hence, manufactured drug, the possession of which is in contravention of the provisions of Section 8 of the NDPS Act, which prohibits certain operations to the effect that no person shall produce, manufacture, possess, sell, purchase, transport, warehouse, etc. In that case, the opium derivative was found in possession of the appellant. The punishment prescribed under Sections 21 and 22 of the NDPS Act provide different parameters for different categories of offences, depending upon the quantity of contraband found, namely, small quantity, commercial quantity or lesser than commercial quantity but more than small quantity. The offence defined under the provisions is in respect of the narcotic drugs or psychotropic substances and when the material seized is found to be carrying only part of the prohibited item, such percentage would be essential for deciding whether it was a small quantity or a commercial quantity or a quantity lesser than the commercial quantity but more than small quantity. When such percentage is not there, the court is unable to decide firmly and confidently that the quantity of material seized was pure quantity of the prohibited item or the contraband or what was the percentage of contraband mixed with some other substances.

9(ii) In the instant case, when the laboratory test has not revealed the percentage, as held by the Apex Court in the case of E. Micheal Raj (supra), the benefit has to go to the accused.

9.iii) In the instant case, though, the appellants are convicted for the offences punishable under Sections 8(C), 21 and 29 of the NDPS Act, the evidence in the form of FSL report produced by the prosecution is incomplete. It is, therefore, not possible to come to a concrete conclusion whether the contraband seized was a small quantity or a commercial quantity or a quantity lesser than the commercial quantity but more than small quantity. In our view, in light of the decision of the Apex Court, in absence of percentage of the pure quantity of contraband in the seized material, the benefit should extend to the accused. The contraband seized from accused No.1 is 766 grams of brown sugar and accused No.2 is 205 grams of brown sugar. The quantity seized from accused No.2 is a small quantity whereas the quantity seized from accused No.1, being 776 grams, is a commercial quantity. But in absence of purity test and its report, it is difficult to conclude what was the exact quantity of the contraband in the blended substance seized from the appellants respectively. The Special Court therefore erred in sentencing them for 10 years RI and fine of Rs. 1 lac each for the offences punishable under Sections 8(C) and 21 and 29 of the NDPS Act respectively. In view of the fact that the evidence regarding purity is not collected by the prosecution, it cannot be said that the entire 776 grams of brown sugar seized from the accused No.1 was 100% brown sugar. It would, therefore, be appropriate that the quantity is treated by one step down i.e. quantity which is less than the commercial quantity but more than the small quantity, the punishment prescribed for is rigorous imprisonment for a term which may extend to 10 years and a fine which may extend to Rs.1 lac . The appellant accused No.1 has been in jail since 21st August, 2004. The appeal, therefore, deserves to be partly allowed and while confirming the conviction of the appellant No.1 under Section 8C & 21 of the NDPS Act, his sentence is reduced to 6 years rigorous imprisonment with a fine of Rs. 50,000/and, in default, to undergo SI for six months" . (10) Similarly this High Court in the case of Mashribhai Kanabhai Chauhan & Anr. (supra), relying upon the case of Pratapbhai Surjibhai Dodiyar (supra), has observed in Paragraph No.9 as under: " A bare perusal of definition contained in section 2(iii) (b) indicates that seeds and leaves not accompanied by flower tops cannot constitute ganja. Inclusion of such constituents as ganja would represent its inaccurate quantity and cannot be treated as pure ganja. Thus Pratapbhai (supra) squarely applies to the facts of the case and the sentence imposed by the trial court upon the appellant deserves modification."

(11) On perusal of the depositions of witnesses, it becomes clear that during their cross-examination they have admitted and stated that the mudammal, which was recovered was having branches and leaves. On perusal of the deposition of Scientific Officer, FSL, also it becomes evident when in his cross- examination, he has stated that ganja recovered from the gray coloured suitcase and rexine handbag was having moisture and green coloured flowers and small branches of leaves were present. Same thing is also admitted by the said witness in his cross-examination wherein he has stated that out of the sample, which was taken for examination, percentage of flowers of putting was not taken out. Report of the FSL (Exh.66-67) also indicates that the sample sent for examination was containing flowers and branches.

(12) Considering the definition of word ganja, as defined under Section 2(iii) (b) of the NDPS Act, as well as considering the judgments of this Court in the case of Pratapbhai Surjibhai Dodiyar (supra), as well as in the case of Mashribhai Kanabhai Chauhan & Anr. (supra), it transpires that seeds and leaves not accompanied by flower tops, cannot constitute ganja and the same cannot be treated as pure ganja. The ratio laid down by this Court in the aforesaid two cases would squarely apply to the facts of the present case and therefore the sentence imposed by the trial Court deserves to be modified.

(emphasis supplied)

The aforesaid decision appears to have been applicable to the case on hand as in the present case the prosecution has failed to prove the fact that the ganja plants, which were seized, were carrying flowering or fruiting, which constitutes the same as ganja. Taking into

consideration the definition of ''ganja'' as well the decisions rendered by the co-ordinate bench of this Court, more particularly, as referred herein above, seeds and leaves not accompanied by flower tops, cannot constitute ganja and the same cannot be treated as pure ganja and in that view of the matter, this Court is of the view that sentence imposed by the trial Court requires to be modified for the one from commercial quantity to the quantity more than small.

6.1 The appellant is sentenced to RI for 10 years with fine of Rs.1,50,000/- with default clause. It is reported that the appellant - accused has not deposited the fine amount. The jail remarks of the appellant are produced on record, a perusal of which reveals that the appellant - accused has undergone 08 years, 11 months and 11 days as on 03/08/2017, thus, by now, he must have completed 09 years of imprisonment. Accordingly, this Court deems it just and proper to reduce the sentence of the appellant to the period he has already undergone in jail including that of default period.

In view of the aforesaid discussion, present appeal succeeds in part.

The impugned judgment and order dated 07/07/2009 passed by the learned Special Judge, Narmada @ Rajpipla in NDPS Case No. 02 of 2008 is hereby modified to the aforesaid extent and while, confirming the conviction, the sentence imposed upon the appellant - accused is reduced to the period he has already undergone in jail including that of default period. The appellant is reported to be in jail. He is ordered to be released forthwith if not required in any other offence. Registry to return the R&P, if received, to the trial Court.

While parting with the judgment, the Court appreciates the efforts put in and services rendered as a legal aid advocate by learned advocate Mr. Rajendra Patel, who represented the present appellant - accused in the matter.