UNREPORTED v. The State of Maharashtra

Mr.P.S.Pawar, advocate holding for Mr.A.G.Kanade, advocate for the appellant. Mrs.Y.M. Kshirsagar, A.P.P. for the State. ... CORAM : V.R.KINGAONKAR,J. Date : 16.09.2009. ORAL JUDGMENT

This appeal is directed against judgment rendered by the Additional Sessions Judge, Parbhani, in Special Case No.7/2006. 2

The appellant along with one Bhagwansingh was tried for offences punishable U/s 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The prosecution case, in nutshell, is that on 1.10.2006, the appellant along with co- accused was found sitting on a Railway platform. Each of them was having blue coloured Rexine bag. The bags were searched due to suspicion. It was noticed that each of the bag contained 10 Kgs. ganja. The ganja was seized by following due procedure. A sample was collected and was sent to the office of the Chemical Analyser. The report of the Chemical Analyser confirmed the fact that it was ganja which is a narcotic substance within the meaning of Section 2(iii) of the N.D.P.S. Act. The learned Sessions Judge came to the conclusion that the offence was duly proved against the appellant and as such convicted him for commission of the offence U/s 8(c) read with Section 20(b)(ii) of the N.D.P.S.Act. The learned Sessions Judge, however, considered that the appellant is young and poor person. 3 Consequently, the learned Sessions Judge took a lenient view and sentenced to suffer rigorous imprisonment for four (4) years and to pay fine of Rs.10,000/- (Rupees ten thousand), in default to suffer simple imprisonment for six (6) months.

Heard learned counsel and learned A.P.P.

At the first blush, it may be noticed that the prosecution evidence regarding recovery of ganja from possession of the appellant is rather unimpeached inspite of searching cross- examination directed against the witnesses. The learned counsel for the appellant does not want to press the appeal in respect of the order of conviction. He would submit that his argument is restricted to the question of sentence. He submits that having regard to age of the appellant, the fact that the appellant is poor labour and the probability of his being used by some other businessman, more lenient view should have been taken. As against this, the learned A.P.P. pointed out that the sentence could be 4 extended up to ten (10) years and the discretion is already exercised by the learned Sessions Judge.

The age of appellant at the time of commission of the offence was 20 (twenty) years. The charge-sheet itself shows that the appellant was 20 years old and his occupation was that of a labourer. The panchanama and other documents would show that there was a religious function of Sikhs called "Hallabol" and that there was a lot of crowd of passengers on account of yet another religious function which was in the proximity of that day. Several passengers were likely to travel to Nagpur for attending "Dhamma Chakra Pariwartan Din". It is probable that young boys were being used for transportation of the ganja. The main culprit remains behind the screen and the carriers of the ganja are persons who are caught by the Police. The inexperienced appellant might have fallen prey to allurement of earning easy money at the relevant time. The fact that he did not try to flee when the Police approached him is also indicative of his absence 5 of being hardened criminal. It is pertinent to note that but for nature of the offence benefit could be available to such young accused person U/s 6 of the Probation of Offenders Act. In case of a youth below 21 years of age, it is mandatory that a report should be called and ordinarily such a young person should be given benefit of probation. However, such benefit of probation is unavailable to the young accused persons involved in serious crimes like the offence U/s 20 of the N.D.P.S.Act. The provision of Section 360 of the Cr.P.C. also is not attracted in such a case. Obviously, the request of the appellant for leniency is justified to some extent.

Considering the foregoing discussion, I am inclined to hold that the substantive sentence deserves to be reduced to period of three (3) years instead of four (4) years. Hence, the appeal is partly allowed. The impugned judgment of conviction is maintained but the substantive sentence of four (4) years rigorous imprisonment is reduced to three (3) years period. The sentence of fine and sentence in default thereof 6 is maintained. The appellant will be entitled to set off U/s 428 of the Cr.P.C. for the period spent by him behind the bars as under-trial prisoner as well as a convict prisoner. (V.R.KINGAONKAR,J.) asp/office/Crappeal23409