Smt. Rajjo Bai vs State of M.P.

S.N. Aggarwal, J.—This appeal u/s 374 of Cr.P.C. filed by the appellant is directed against her conviction u/s 20(ii) (B) & (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "N.D.P.S. Act) sentencing her to RI for 10 years and fine of Rs. 1,00,000 and in default further RI for 2 years vide impugned judgment dated 7.7.2005 passed by the trial court in Special Sessions Trial Case No. 5/2005.

I have heard the arguments of Mr. V.K. Saxena, learned Sr. Advocate and also of Mr. Mukund Bhardwaj, Prosecutor appearing on behalf of the respondent/Sate. I have also perused the trial court record and have given my thoughtful consideration to the rival contentions advanced by learned counsels for both the parties.

The factual matix of the prosecution case is that the appellant was found in possession of about 1 Kg. of charas on 3.12.2004 and was tried before the court below of charge u/s 8/20 of the N.D.P.S. Act, 1985. The prosecution had examined total 10 witnesses. The court below upon analysis and evaluation of evidence produced by the prosecution has convicted the appellant for offence u/s 20(ii) (B) & (C) of the N.D.P.S. Act, 1985, aggrieved where from this appeal is preferred by her. where from this appeal is preferred by her.

Mr. V.K. Saxena, learned Sr. Advocate appearing on behalf of appellant says on instructions that he does not dispute the recovery of charas from the possession of the appellant in the incident on 8-12-2004. His argument is that in view of recovery of charas shown to have been made from the appellant vide recovery memo Ex.P 8, the appellant could not have been convicted by the trial court for offence u/s 20(ii)(C) of the N.D.P.S. Act, 1985. According to him, the conviction of the appellant could only be u/s 20(ii)(B) of the said Act. It is submitted by him that in case, the court accepts his submission on this point then he would pray to the court for awarding appropriate sentence keeping in mind that appellant is a female and that she worked as a career and not as a kingpin in the incident.

Per contra, learned Public Prosecutor appearing on behalf of the respondent/State has contended that 1 Kg. of charas recovered from the possession of the appellant falls within the ambit of commercial quantity in terms of entry 23 contained in the Central Govt. Notification specifying small quantity and commercial quantity. He submits that the offence committed by the appellant falls within the ambit of Section 20(ii)(C) of the Act and therefore, according to him, the appellant has been rightly convicted and sentenced by the court below. He submits'' that no interference is called for the impugned judgment and has prayed for dismissal of the present appeal.

The main question that arises for consideration from the rival arguments of the counsels for both the parties is whether quantity of charas recovered from the possession of the appellant falls under the category of commercial quantity or small quantity or something in between. The trial court on the basis of evidence adduced by the prosecution has returned a finding of fact in the impugned judgment that the quantity of charas recovered from the possession of the appellant was 1 kg. The argument of learned Sr. Advocate for the appellant is that this finding of fact is incorrect, if a reference is made only to the recovery memo Ex.P 8, in which, it is mentioned that approximately 1 Kg. of charas was recovered from the possession of the appellant in the incident on 8.12.2004. It is submitted that the court below has completely failed to consider the effect of word "approximately" prefixed to the quantity of charas mentioned in the said recovery memo. It shall be relevant to notice the contents of recovery memo Ex.P 8 which are extracted here in below:

(Matter in other language)

It is apparent from the above recovery memo Ex.P 8 that the quantity of charas recovered from the possession of the appellant was not exactly 1 Kg. but it was in the approximation of 1 Kg. Learned Sr. Advocate appearing on behalf of appellant has taken this court through the evidence of the prosecution who have contradicted each other on the question of quantity of charas recovered from the appellant, whether it was exactly 1 Kg. or less than 1 Kg. or more than 1 Kg. This court is of the opinion that if charas recovered from the possession of the appellant was weighed on scale as mentioned in the recovery memo, then was it not obligatory upon the appellant to have recorded the exact quantity of contraband drug i.e. charas recovered from the possession of the appellant in the recovery memo. The police could not have left the quantity for imagination mentioning the quantity that it was approximately 1 Kg. Having regard to the contradictions in the testimony of prosecution witnesses on the aspect whether the quantity recovered was exactly 1 Kg or less than 1 Kg. or more than 1 Kg., the benefit of the same has to be given to the appellant. The penal laws need to be strictly construed. It is the duty of the prosecution to bring home the guilt against the accused beyond shadow of any doubt before he or she can be convicted of a particular crime. The intention of the legislature in enacting the Narcotic Drugs and Psychotropic Substances Act., 1985 was to rationalise the sentencing structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentence, the addicts and those who commit less serious offences are sentenced to less severe punishment. The punishment under the Act varies depending upon whether quantity of offending material is "small quantity" or "commercial quantity"; or "something in between".

Section 20(ii) (B) and (C) of the N.D.P.S. Act, 1985, are relevant and reads as under:

20(ii) where such contravention relates to sub-clause (b).

(A). XXX

(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:

A plain reading of the above statutory provisions would show the intention of the legislature that those who are found involved in quantity lesser than commercial quantity but greater than small quantity have to be visited with rigorous imprisonment upto 10 years and fine up to Rs 1,00,000, whereas those found involved in commercial quantity are to be dealt with more severely by visiting them with imprisonment upto 20 years and fine upto Rs. 2,00,000. In such cases where a person is found involved in commercial quantity, law prescribes a minimum sentence of 10 years imprisonment and minimum fine of Rs. 1,00,000 without leaving any discretion in the matter to the court. However, when a person is found involved in the quantity between small and commercial quantity then a discretion is given by the legislature to the court to award sentence to the offender maximum upto 10 years and scale of sentence in such a case vary from nil to 10 years. The same way the discretion is also given to the court to impose fine less than Rs. 1,00,000 in cases where the quantity found from the possession of the offender is less than commercial quantity.

As per entry 23 contained in the Central Govt. Notification dealing with cannabis and cannabis resin (Charas and Hashish), small quantity is mentioned as 100 gms. and commercial quantity as 1 Kg. In the present case the recovery memo Ex.P 8 shows that the recovery of charas made from the possession of the appellant was in approximation of 1 Kg. and giving benefit of word "approximate" prefixed to the quantity mentioned in the said memo, the quantity of charas recovered from the possession of the appellant in the incident has to be treated something between small quantity and commercial quantity within the meaning of clause B of Section 20(ii) of the N.D.P.S. Act, 1985. Since the learned trial court has not considered the effect of word "approximate" prefixed to the quantity mentioned in the recovery memo Ex. P8, the finding regarding quantity returned by the trial court in the impugned judgment is liable to be interfered with as the same, in the light of above discussion, cannot be sustained. This court it, therefore, of the opinion that the conviction of the appellant has to be only u/s 20(ii)(B) and not u/s 20(ii)(C) of the Act. Accordingly, the impugned judgment of the conviction passed by the court below against the appellant is modified to the extent that her conviction u/s 20(ii)(B) of the N.D.P.S. Act, 1985 is affirmed and her conviction u/s 20(ii)(C) of the said Act is hereby set aside.

Since, the conviction of the appellant has been affirmed for offence u/s 20 (ii) (B) of the N.D.P.S. Act, 1965, the sentence that was awarded to her by the court below also needs to be re-looked. The appellant was awarded sentence of imprisonment of 10 years and this was in term of stringent provisions contained in Section 20(ii)(C) of the N.D.P.S. Act, 1985 which prescribes a minimum sentence of 10 years and minimum line of Rs. 1,00,000 What was awarded by the court below to the appellant was the minimum sentence prescribed in Section 20(ii)(C) of the said Act. Since, the conviction of the appellant u/s 20(ii)(C) of the N.D.P.S. Act, 1985 has been set-aside and having regard to the fact that the appellant is an old woman and had acted only as a career and not as kingpin and also having regard to the fact that she is not a habitual offender under the Act, this court is of the view that interest of justice shall be subserved by suitably modifying the sentence and awarding her sentence of imprisonment of 6 years with fine of Rs. 1,00,000 and in default whereof to further undergo SI for 6 months in substitution of sentence awarded to her by the court below in the impugned judgment.

Accordingly, the sentence of the appellant is modified and she is sentenced to undergo RI for 6 years with fine of Rs. 1.00,000 and in default thereof to further undergo SI for 6 months. It is made clear that while computing the sentence, the jail authorities shall grant benefit of Section 428 of Cr.P.C. to the appellant and she shall also be entitled to remissions, if admissible under the rules but the period during which she remained on interim bail shall be excluded while computing her sentence.

A copy of this appeal judgment be supplied free of cost to the appellant forthwith.

In view of the above, this appeal stands disposed of.