CR.A/619/1989 of MADHABHAI JOBANBHAI KAHAR Vs STATE OF GUJARAT on 13 December 1995

1. Whether Reporters of Local Papers may be allowed to see the judgment? Yes

2. To be referred to the Reporter or not? No

3. Whether their Lordships wish to see the fair copy of judgment? No

4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder? No

5. Whether it is to be circulated to the Civil Judge? No

---------------------------------------------------------------- Shri H.M. Chinoy, Advocate, for the Appellant Shri S.R. Divetia, Addl. Public Prosecutor, for the Respondent---------------------------------------------------------------- CORAM: A.N. DIVECHA & H.R. SHELAT, JJ.

��(Date: 13th December 1995)

ORAL JUDGMENT (per Divecha, J.)

The judgment and order of conviction and sentence passed by the learned Additional Sessions Judge of Kheda at Nadiad on6th September 1989 in Sessions Case No. 82 of 1988 convictingthe appellant of the offence punishable under sec. 8 read withsec. 20(b)(ii) of the Narcotic Drugs and PsychotropicSubstances Act, 1985 (the NDPS Act for brief) and also under sec. 66(1)(b) read with sec. 67A of the Bombay ProhibitionAct, 1949 (the Prohibition Act for brief) and sentencing him torigorous imprisonment for 10 years and fine of Rs. 1 lakh indefault rigorous imprisonment for one year more for the offencepunishable under the NDPS Act without awarding any separatesentence for the offence punishable under the Prohibition Act isunder challenge in this appeal at the instance of the originalaccused.

2. It is not necessary to set out in detail the factsgiving rise to this appeal. It may be sufficient to note that,while on patrolling duty on 1st December 1987 on informationreceived from the private informer, the Police Inspector of theTown Police Station at Nadiad, named, Shri B.K. Rathod (thecomplainant), effected the search of the present appellant inpresence of two panchas. It was found from his person what ispopularly known as charas to the tune of about 60 gms.Thereupon the complainant lodged his complaint charging theappellant with the offence punishable under sec. 20(b) of theNDPS Act and sec. 67 of the Prohibition Act. The proceedingarising therefrom came to be registered as Sessions Case No. 82of 1988 in the Court of the Sessions Judge of Kheda at Nadiad.On conclusion of the trial, it culminated into conviction of theappellant of the offence punishable under sec. 8 read with sec.20(b)(ii) of the NDPS Act and of the offence punishable undersec. 66(1)(b) read with sec. 67A of the Prohibition Act andsentence of rigorous imprisonment for 10 years and fine of Rs.1 lakh in default rigorous imprisonment for one year for theoffence punishable under the NDPS Act without awarding anyseparate sentence for the offence punishable under theProhibition Act. The aggrieved accused has thereupon invokedthe appellate jurisdiction of this court by means of this appealquestioning the correctness of his conviction and sentence asaforesaid.

3. Since this appeal can be disposed of on the short groundbased on non-compliance with the mandatory provisions containedin sec. 42(1) of the NDPS Act, we have not chosen to dealextensively with the rival submissions urged before us at thetime of hearing. The aforesaid statutory provision has beenheld to be mandatory by the Apex Court in its binding ruling inthe case of State of Punjab v. Balbir Singh reported in AIR1994 SC 1872. It has been provided therein that informationreceived with respect to any narcotic drug or psychotropicsubstance amounting to an offence punishable under the NDPS Acthas to be reduced to writing by the officer named therein.Non-compliance therewith is held to be fatal to the prosecutionin view of the aforesaid binding ruling of the Supreme Court.

4. In the present case, the complainant in para 8 of hisoral testimony at Ex. 12 has clearly admitted that he did not reduce to writing the information regarding possession by thepresent appellant of charas received from some private informer.In fact, in para 8 of his deposition at Ex. 12 he has gone tothe extent of pleading ignorance of existence of any suchstatutory provision. Such ignorance of the aforesaid statutoryprovision on the part of a gazetted police officer can be saidto be simply unpardonable. However, at present such ignoranceon the part of the complainant need not detain us any longer.Suffice it to say that the aforesaid mandatory statutoryprovision contained in sec.42(1) of the NDPS Act has not beencomplied with in the present case. That would vitiate the trialas ruled by the Apex Court in its aforesaid ruling.

5. The learned trial Judge has convicted the appellant alsounder sec. 66(1)(b) read with sec. 67A of the Prohibition Act.Learned Advocate Shri Chinoy for the appellant has not been ableto make any dent in the prosecution evidence in that regard.With respect, the learned trial Judge has carefully scanned andscrutinised the evidence on record and has recorded a finding ofguilt against the appellant qua the offence punishable under theProhibition Act. That finding cannot and need not be interferedwith in view of the overwhelming evidence on record.

6. That brings us to the question of sentence for the saidoffence. Section 66(1)(b) of the Prohibition Act is somewhatharsher for the purpose of punishment than sec. 67A thereof.The maximum sentence imposable under sec. 66(1)(b) thereof isimprisonment for 3 years and fine of Rs. 1000. We are toldthat the appellant has beein in jail since the date of hisarrest on 1st December 1987. He has thus undergone imprisonmentfor more than 8 years as on today. He need not therefore besubjected to serve any fresh or further term of imprisonment forthe offence punishable under the aforesaid statutory provisioncontained in the Prohibition Act. The maximum fine which can beimposed on the appellant for the offence punishable thereunderis Rs. 1000. The appellant can be subjected to rigorousimprisonment for a period of one month more in default ofpayment of fine. That period also he has already undergone. Inthat case, it is not necessary to subject him to any furtherterm of imprisonment though we propose to award sentence ofimprisonment and fine on the appellant. The appellant deservesto be sentenced to rigorous imprisonment for 3 years and fine ofRs. 1000 in default rigorous imprisonment for a period of onemonth more for the offence punishable under sec. 66(1)(b) readwith sec. 67A of the Prohibition Act.

7. In the result, this appeal is partly accepted. Thejudgment and order of conviction and sentence passed by thelearned Additional Sessions of Kheda at Nadiad on 6th September1989 in Sessions Case No. 82 of 1988 qua the offence punishable

under sec. 8 read with sec. 20(b)(ii) of the NDPS Act isquashed and set aside. The conviction of the appellant of theoffence punishable under sec. 66(1)(b) read with sec. 67A ofthe Prohibition Act is maintained. He is sentenced to rigorousimprisonment for 3 years and fine of Rs. 1000 in defaultrigorous imprisonment for one month more. Since the appellanthas been languishing in jail since 1st December 1987, he is notrequired to serve any fresh or further sentence imposed on himby this judgment and order of ours. He should be set at libertyif no longer required in any other case. The muddamal may bedisposed of according to law.