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TMI Blog2016 (7) TMI 581X X X X Extracts X X X X X X X X Extracts X X X X ..... Police Station for the offence punishable under sections 20(B) and 20(C) of the NDPS Act. In pursuance of the said complaint, investigation started and as there appeared prima facie case against the accused, charge sheet was filed against the accused persons. As the offence was triable exclusively by the Court of Sessions, the learned Magistrate committed the cases to the Court of Sessions. Thereafter charge was framed against the accused which was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried. Hence, the prosecution was asked to prove the guilt against the accused. To prove the case, the prosecution examined ten witnesses and produced and relied on several documentary evidence numbering 27. After filing of closing pursis by the prosecution, further statements of accused under Sec.313 of Cr.P.C. were recorded wherein they pleaded that false case has been filed against them. On conclusion of trial and upon hearing the learned advocates appearing for the respective parties, impugned judgment and order, as aforesaid in the earlier part of this judgement, was delivered by the trial court giving rise to the present appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no leniency be shown towards the appellants. 6. The main submission canvassed by the learned advocates for the parties pertains to the quantum of punishment awarded to the appellants for the offence under section 20(B) of the NDPS Act. It is to be noted that the appellants were sentenced to undergo ten years' RI and to pay fine of Rs. 1,00,000/-, in default, to undergo further RI for two years. In view of the fact that the learned advocates for the parties restricted their submissions on the quantum of sentence, this Court would not like to reproduce or discuss the entire evidence which are on record as the same remained unchallenged. This Court is also in complete agreement with the reasons adopted by and the conclusions arrived at by the learned trial court in the impugned judgment so far as the conviction of the present appellants is concerned. However, the question to be considered is as to whether the appellants, in the given facts and circumstances of the case, are entitled to reduction of sentence which has been awarded by the trial court or not. 6.1 In this connection, reference will have to be made to the decision rendered by the Hon'ble Supreme Court in an identical si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we do not deem it necessary to re-examine and re-appreciate the oral and documentary evidence adduced by the prosecution before the trial Court. The appeal is only pressed on the count of sentence. There is no dispute that as per Sr.No.55 regarding the 'Ganja', contained in table annexed to the NDPS Act, the quantity of 'Ganja' upto 1000 gms. is considered to be small quantity and quantity of 20 kgs. and more is considered to be commercial quantity. In the instant case, as established by the prosecution, the contraband substance 'Ganja', which came to be seized from the accused was weighing 9 kgs. and 140 gms., meaning thereby, the quantity was greater than small quantity and lesser than commercial quantity. Now, as per Section 20(b) (ii)(B), when the quantity involved is lesser than commercial quantity, but greater than small quantity, the punishment prescribed is RI for a term, which may extend to 10 years and with fine that may extend to Rs. 1 Lac. In the impugned judgment, the trial Court while fixing the quantum of sentence, considered the possession of 'Ganja' weighing 9 kgs. and 140 gms. as commercial quantity. As stated above, so far as ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h reduced the sentence from rigorous imprisonment of 12 years to the minimum of 10 years prescribed. 5.3 In the case of Ghasita Sahu vs. State of Madhya Pradesh reported in 2008 AIR AIAR (Criminal) 277, the Apex Court considering the poor background of the accused reduced the punishment from 5 years to one already undergone (about 4 years as noticed by the Apex Court) and also reduced the fine from Rs. 20,000/- to Rs. 10,000/- and imposed the default sentence of six months. It was a case wherein the accused was found carrying 17 Kgs of Ganja. It may be noted that commercial quantity for Ganja is prescribed as 20 Kgs. 5.4 In the case of Shanti Lal vs. State of M.P. reported in 2007(2) EFR 702, the Apex Court in para 36 observed that the accused appellant is a very poor person and it was his first offence. It is further observed that because of poverty he could not pay the heavy amount of fine of Rs. 1 lakh and that if he is ordered to remain in jail even after the period of substantive sentence is over only because of his inability to pay fine, serious prejudice will be caused not only to him but also to his family members who are innocent. With these observations the Apex Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ult, the appeal is disposed of with the following directions: 1. Conviction under section 20(b)(ii)(B) of the NDPS Act is upheld. 2. Sentence imposed on the appellant for the said offence is however reduced to four years of R.I. and fine of Rs. 10,000/- (Rupees ten thousand). In case of default of payment of fine, he shall serve further sentence of six months of R.I. 3. Conviction and sentence under section 23 of the NDPS Act are set aside. 4. If the appellant has already served out the sentence including the default sentence or paid fine, he shall be set free if not required in any other criminal case. 5. With the above directions, the appeal is disposed of." 7. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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