SAIYAD IMRANMIYA MAJIDMIYA vs STATE OF GUJARAT & ANR.

The present conviction Appeal has been filed by the appellant?original accused No.1, under Section 374 of the Cr. P.C., against the Judgment and order dated 14.08.2012 rendered in Special N.D.P.S. Case No. 05 of 2007 by the learned Special Judge and 4th Additional Sessions Judge, Anand whereby the appellant-original accused No.3 was convicted for the offence punishable under Section 20(B)(2-C) read with 8(C) of the NDPS Act and sentenced to undergo ten years rigorous imprisonment with fine of Rs.1 lac, in default of payment of fine, further rigorous imprisonment of one year and for the offence punishable under Section 29 of the NDPS Act and sentenced to undergo ten years rigorous imprisonment with fine of Rs.1 lac, in default of payment of fine, further rigorous imprisonment of one year.

It is the case of the prosecution that on 08.03.2007, Shri Sanjay Patel, Intelligence Officer, Narcotics Control Bureau, Ahmedabad Zonal Unit, Ahmedabad allegedly received a secret information from and undisclosed source to the effect that on 08.03.2007, one Rajnikant Jashbhai Patel and Late Mukesh Patel were to receive a consignment of Charas which was dispatched from Kashmir on 08.03.2007 and the said information was submitted in writing to the Superintendent of Narcotics Control Bureau, Ahmedabad. On 11.03.2007, the officers of NCB maintained secret watch at Anand but the said vehicle did not reach the spot on the said day. The said alleged watch was continued and it was noticed that two co-accused Late Rajnikant Patel and Late Mukesh alias Shailesh visited hotel Rajguru situated on the right side of N.H.8 from Chikhodra cross roads towards Baroda and alleged to visit the said hotel every day in the afternoon till evening on one Grey scooter having registration No.GJ-23-924. It is further alleged that on 16.03.2007 at about 8:010 p.m., Late Rajnikat and Late Mukesh both went to their scooter from hotel Rajguru towards Ahmedabad highway, the same was alleged to have been followed by the team of NCB in their respective vehicles at a safe distance. On crossing Samarkha cross road towards Ahmedabad, they stopped their scooter at one hotel Sabaras. It is further alleged that on black indigo car having registration No.HR-02-1-0061 came at hotel Sabras and two persons namely Zakir Hussain alias Raju and present appellant were surrounded by team of NCB while all the four accused were talking amongst themselves near black indigo car. It is further alleged that on making preliminary inquiry, team of NCB took away all the accused alongwith indigo car and scooter alleged to have been used in the crime at circuit house, Anand for further proceedings. It is further alleged that on 16.03.2007 at about 10:00 p.m. two panchas namely Shri Mayurbhai Ambubhai Prajapati serving as clerk at office of Collector, Anand and Shri Jaykrishnabhai Bhatt have consented to remain present as panch witnesses and they were called by the Investigating Officer in room No.7 at circuit house for commencement of procedure of panchnama. The panchas carried out the panchnama after being made aware of the case by investigation. The panch witnesses searched and found nothing from the present appellant and thereafter, PW1 alongwith co-accused Zakirhussain and Investigating Officer searched the indigo car and found one packet of charas from insider the speaker and after conducting the test of sample, the same was found to be positive and identified as charas. It is further alleged that thereafter, more three packets were found from the car and collected 25 grams of charas from each packet as sample for the purpose of sending it to Laboratory test. It is further alleged that seizure officer seized the car and packets of charas been marked A,B, C and D respectively by the seizure officer. It is further alleged that on 17.03.2007, statements at Exh. 24 of all the accused were recorded under Section 67 of the NDPS Act. All the accused were arrested on the above date by the officers of NCB. Subsequent to the aforesaid, a report at Exh.27 under Section 57 of the NDPS Act was sent to the Superintendent of NCB with regard to seizure of articles and arrest of accused.

Then, at the end of the investigation, charge-sheet was submitted before the learned trial Court and charge was framed vide Exd.4 on 10.09.2007 for the alleged offences and plea was recorded, wherein, appellants-accused pleaded not guilty to the charge and claimed to be tried. As the accused pleaded not guilty to the charges, the case was fixed for recording the evidence.

In order to bring home the charges against the accused person, prosecution has examined five witnesses and defence has examined four witnesses also produced documentary evidences.

Thereafter, after filing closing pursis by the prosecution, further statement of the appellants-accused under Section 313 of the Code of Criminal Procedure, 1973 were recorded, wherein the appellants have denied the case of the prosecution and has pleaded their innocence. The appellants have submitted that a false case is filed against them.

During the pendency of the investigation, original accused No.1-Mukeshkumar alias Shalish Patel was expired and during the pendency of the appeal, original accused No.2- Zakirhussain Shaikh was expired. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Special Judge, Anand the present appellant-origanal accused No.3 has preferred this appeal.

Heard Mr.Ruturaj Nanavati, learned advocate for the appellant-accused, Mr. Kartik Pandya, learned Standing Counsel, Central Government for respondent No.2-NCB and Mr. N.J.Shah, learned Additional Public Prosecutor for the respondent-State.

The appellant by way of present appeal prays to consider the undergone period as he is unable to deposit fine amount of Rs. 2 lacs and in default the learned trial Court sentenced him to undergo one year rigorous imprisonment as he has already undergone the sentence period awarded by the learned trial Judge, and therefore, only on the ground of mercy he requests this Court to consider the undergone period.

Mr.Ruturaj Nanavati, learned advocate for the appellant-accused states that present appellant-accused has family and one minor children. According to the learned counsel for the appellant, the default sentence, i.e., 2 years, is very harsh and the learned Sessions Judge, Anand ought not to have imposed such sentence for non-payment of fine amount. In view of the same, he relied upon a decision of the Apex Court in the case of Sajidkhan Mahebubkhan Pathan v/s. State of Gujarat, reported in (2013) 1 SCC 570. He therefore, with folded hands urges that since the appellant has already undergone the sentence period and he is unable to pay the fine amount, some leniency may be shown in favour of the appellant-accused.

Mr. Kartik Pandya, learned Standing Counsel, Central Government for respondent No.2-NCB and Mr. N.J.Shah, learned Additional Public Prosecutor for the respondent-State contended that as per the judgment replied upon by learned advocate Mr. Ruturaj Nanavaty rendered in the case of Sajidkhan Mahebubkhan Pathan (Supra), if some leniency may be shown in favour of the present appellant, then they have no objection.

I have considered the statements made by learned advocate for the parties. Looking to the jail period undergone by the appellant and as per the observations made by the Apex Court in the above referred case, I am of the opinion that present appeal is required to be considered on mercy ground.

Therefore, the present appeal is partly allowed. The judgment and order of conviction dated 14.08.2012 rendered in Special N.D.P.S. Case No. 05 of 2007 by the learned Special Judge and 4th Additional Sessions Judge, Anand directing the appellant to deposit fine amount of Rs. 2 lacs, in default, two years rigorous imprisonment, is hereby reduced to Rs. 1 lac/-, in default, six months rigorous imprisonment. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.