2016 (7) TMI 581 - HC - Indian Laws

Validity of Conviction and sentence to suffer rigorous imprisonment for ten years - offence punishable under section 20(B) of the Narcotics Drugs and Psychotropic Substances Act 1985 (NDPS) - Held that - It is to be noted that in the present case the appellants were found in possession of 3 kg and 400 gm of contraband article ganja . Maximum punishment prescribed for small quantity of 1000 grams of ganja is six months while for possession of commercial quantity of 20 kg or more punishment prescribed is minimum of 10 years of rigorous imprisonment and fine. Thus for possession of small and commercial quantity punishment prescribed is a sentence extending to ten years and fine. However in case of ganja the sentence would alter in proportion to the quantity of ganja seized. Thus there is huge difference between possession of 3 kg and 400 gm of ganja and 20 kg and therefore in tune with the legislative intent principle of proportionality between the small and commercial quantity should have been considered by the trial court while imposing sentence. As per the jail record behaviour of the accused is good. They are also having responsibilities to maintain their family. As they are in jail entire family is in a helpless condition and passing through a difficult period to survive a living. In view of the above this Court is of the opinion that interest of justice will be met if the sentence imposed on the applicant is reduced to the period already undergone by the appellants. The appeal is accordingly partly allowed.

Issues Involved:
1. Conviction and sentencing under Section 20(B) of the NDPS Act.
2. Proportionality of the sentence in relation to the quantity of contraband seized.
3. Consideration of precedents and legislative intent regarding sentencing.

Issue-wise Detailed Analysis:

1. Conviction and Sentencing under Section 20(B) of the NDPS Act:
The appellants were convicted and sentenced to ten years of rigorous imprisonment and a fine of ?1,00,000/-, with an additional two years of imprisonment in default of payment, for the offence under Section 20(B) of the Narcotics Drugs and Psychotropic Substances Act, 1985. The conviction arose from their involvement in selling 3 kg and 400 gm of ganja, as per the FIR registered at Jamnagar 'B' Division Police Station. The trial court's judgment was based on the evidence presented, including testimonies from ten witnesses and 27 documentary pieces of evidence. The appellants pleaded not guilty and claimed the case was falsely filed against them.

2. Proportionality of the Sentence in Relation to the Quantity of Contraband Seized:
The primary contention in the appeal was the quantum of punishment. The appellants' counsel argued that the sentence was disproportionate to the quantity of ganja seized (3 kg and 400 gm) compared to the commercial quantity threshold of 20 kg, which mandates a minimum sentence of ten years. The counsel cited precedents where sentences were reduced in similar cases involving lesser quantities of contraband. He emphasized the legislative scheme's intent to impose sentences proportionate to the quantity seized and highlighted that both appellants had already served over four years of imprisonment and had no prior criminal records.

3. Consideration of Precedents and Legislative Intent Regarding Sentencing:
The court referred to several precedents to assess the proportionality of the sentence:
- Ghasita Sahu Vs. State of M.P.: The Supreme Court reduced the sentence from five years to the period already undergone (almost four years) for possession of 17 kg and 750 gm of ganja.
- Fakir Imamsha Davalsha Vs. State of Gujarat: The Gujarat High Court reduced the sentence from ten years to five years for possession of 9 kg and 140 gm of ganja, noting the error in considering it as a commercial quantity.
- Ashokkumar Balchand Umlani Vs. State of Gujarat: The court reduced the sentence from seven years to four years for possession of 13 kg and 840 gm of ganja, considering the appellant's first-time offence and poor background.

The court acknowledged the significant difference between possession of 3 kg and 400 gm of ganja and the commercial quantity of 20 kg. It emphasized the principle of proportionality and noted that the appellants had already undergone more than four years of imprisonment, had no antecedents, and their behavior in jail was good. The court also considered the appellants' responsibilities towards their families.

Conclusion:
The appeal was partly allowed. The court confirmed the conviction but reduced the sentence to the period already undergone by the appellants. The fine was reduced from ?1,00,000/- to ?10,000/- each, with a default sentence of six months. The appellants' bail bonds were canceled, and the judgment was modified accordingly, with the remaining part of the judgment unaltered. The record and proceedings were ordered to be sent back to the lower court.

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