Madhya Pradesh High Court
Gabba vs The State Of Madhya Pradesh on 23 December, 2024
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
NEUTRAL CITATION NO. 2024:MPHC-IND:36901
1 CRA-10294-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
ON THE 23rd OF DECEMBER, 2024
CRIMINAL APPEAL No. 10294 of 2024
GABBA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Abhay Saraswat, counsel for the appellant.
Shri Surendra Gupta, counsel for the State
Reserved On: 17.12.2024
Delivered On: 23.12.2024
JUDGMENT
With consent of the parties, heard finally.
2. This criminal appeal is preferred under section 374 of Cr.P.C. by the
appellant being disgruntled by the judgment dated 28.08.2024, passed by
learned Special Judge (NDPS Act), Jawad District Neemuch in S.T,
No.51/2019, whereby the appellant has been convicted for the offence
punishable under Section 8(a)/20(b)(i) of NDPS Act and sentenced to
undergo 10 years R.I. with fine of Rs.1,00,000/- with default stipulation.
3. As per the prosecution story. on 07.03.2019, the ASI R.P. Mishra,
ASI Nilesh Solanki, Constrable Hoshiyar Singh, Constable Kanhanalal,
Constable Girraj Sharma and Constable Shailendra Singh were on patrolling
and at about 5:37 PM, ASI R.P. Mishra has received an information that the
appellant has cultivated cannabis plants at his field. Pursuant to the said
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Signed by: AMIT KUMAR
Signing time: 12/23/2024
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information, the police team after following due procedure of law, reached
on the spot and and recovered 440 plants of cannabis weighing 145KG.
Thereafter, the police registered the Crime Bearing Crime No.119/2019 at
police station Jawad under Section 08/20 of NDPS Act.
4. The learned trial Court, after considering the evidence and material
available on record has convicted the appellant, as stated above in para No.1.
5. The appellant has preferred this criminal appeal on several grounds
but during the course of arguments, learned counsel for the appellant did not
press this appeal on merits and did not assail the findings of conviction part
of the judgment. He confines his arguments on the point of sentence.
Counsel for the appellant submits that the appellant is aged about 75 years
old. He also submitted that the appellant has suffered approximately 11
months of his incarceration out of the sentence so awarded by learned trial
Court. The appellant is having regard to all circumstances which resulted in
appellant’s conviction and further keeping in view the fact that the appellant
was facing the trial before the concerned Court for more than 05 years,
therefore, he prayed that the appeal be partly allowed and the sentence
awarded to the appellant be reduced to the period already undergone by
enhancing the fine amount or as the Court may deems fit in the interest of
justice.
6. Learned counsel for the respondent/State has opposed the prayer. He
supported the judgment and order by submitting that there is clear evidence
against the appellant, therefore, he prays for dismissal of the appeals.
7. I have considered rival contentions of the parties and perused the
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record.
8. So for as the contentions on merits of the case raised in appeal
memo by learned counsel for the appellant is concerned, the learned trial
Court has not committed any error in appreciation of evidence available on
record. Further, it is found that the Court below considered the evidence
available on record and correctly found that the case of the prosecution is
well supported by the witnesses and documentary testimony. The procedure
was well followed by the prosecution and the witnesses of prosecution have
profoundly supported the prosecution case. The trial Court has well
considered the material available on record, hence, no infirmity is found in
the impugned order of conviction passed by the trial Court, accordingly, the
same is upheld.
9. In so far as the sentence is concerned, learned counsel for the
appellant has alternatively prayed only on the part of sentence and submitted
that since the appellant is aged about 75 years old and has already suffered
approximately 11 months of his incarceration and since, there is no
minimum sentence prescribed, he may be released only with the undergone
sentence or may reduce his sentence to the minimum extent by enhancing the
fine amount.
10. In this regard, earlier also the Hon’ble Apex Court as well as this
Court has also considered the prayer and reduced the incarceration period of
the accused persons to the period already undergone in the cases where the
quantity of the contraband is found to be of non-commercial or less than the
commercial quantity.
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Signing time: 12/23/2024
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11. On this aspect, the Hon’ble Apex Court in the case of R.
Kumaravel vs. Inspector of Police NIB CID (CRA No.1056/2019) decided
on 15.07.2019 has observed as under:-
“As per Section 20(b)(ii) (b) of minimum
punishment is prescribed for involvement of the
quantity lesser than commercial quantity, by greater
than the small quantity.
Learned counsel appearing on behalf of the
appellant has submitted that the appellant has no
criminal antecedents. The appellant has already
undergone imprisonment for about 206 days.
Considering the facts and circumstances of the case, the
sentence of imprisonment of two years imposed upon
the appellant is reduced to one year.”
12. Further, on this aspect, the case of Mangilal Vs. Central Narcotics
Bureau [2006 Law Suit (MP) 111] is worth referring here wherein the Court
has partly allowed the appeal and as the case was related to 2 kg opium i.e.
non-commercial quantity, passed a conviction for 3 years RI with fine of Rs.
1000/- instead of 5 years. Similarly, in the case of Kamal Vs. State of M.P.
2012 Law Suit (M.P.) 2298 (CRA No.10/2011) , Baba @ Akash Sonkar vs.
State of M.P., 2020 Law Suit (M.P.) 1645 (CRA No.426/2000) , Bhagwat
Patel Vs. State of M.P., 2022 LawSuit 789 (CRA No.674/2022) , Munna @
Munnu Pandit Vs. State of M.P., 2022 Law Suit 789 (CRA No.2494/2022)
the co-ordinate Bench have reduced the sentences of the accused persons
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respectively in non-commercial quantities. In the case of Kamal (supra) , the
co-ordinate Bench has reduced the punishment to undergone for
approximately two years out of five years for a non-commercial quantity, in
the case of Baba @ Akash Sonkar (supra), reduced the sentence to one year
out of seven years imprisonment, in Bhagwat Patel (supra) the Bench has
reduced the sentence to the period already undergone in 8 months and
similarly in the case of Munna (supra) in seven months.
13. In view of the aforesaid, so far as the sentence is considered, it
seems that the appellant has suffered custody of approximately 11 months.
That apart, the appellant has suffered the ordeal of criminal case since 2019.
There is no minimum sentence prescribed in this regard. On this aspect, the
law laid down by the Hon’ble Apex Court, in the case of R. Kumarawal
(supra) as well as the settled propositions of law endorsed by coordinate
bench of this court, has been considered.
14. In view of the aforesaid legal proposition regarding non-
commercial quantity or the punishment on higher side, this Court finds it
expedient to partly allow this appeal. However, looking to the facts and
circumstances of the case, in this case, only 440 cannabis plants having fruits
and flowers has been recovered and no other criminal antecedents registered
against him as well as specially, looking to the age of appellant who is 75
years old, this Court finds it expedite to reduce the sentence of the appellant
to one year R.I. by maintaining the fine amount of Rs.1,00,000/- to meet the
ends of justice.
15. Accordingly, this Criminal Appeal is partly allowed and the
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Signing time: 12/23/2024
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sentence under Sections 8(a)/20(b)(i) of NDPS Act awarded to the appellant
is hereby reduced to the period of One year R.I. by maintaining the of
Rs.1,00,000/-. In case of failure to deposit the fine amount, the appellant
shall further undergo for two months simple imprisonment.
16. The appellant is in jail, he be set at liberty forthwith after
completion of one year of his sentence and subject to deposit the fine
amount.
17. The bail bond (if any) of the appellant shall be discharged after
depositing of the fine amount on completion of custody period as well. Fine
amount, if already deposited, shall be adjusted.
18. The judgment of learned trial Court regarding disposal of the
seized property stands affirmed.
19. A copy of this order be sent to the concerned trial Court for
necessary compliance.
20. Pending I.As. if any, stands closed.
21. With the aforesaid, the present appeal stands disposed off.
Certified copy, as per rules.
(PREM NARAYAN SINGH)
V. JUDGE
AMIT
Signature Not Verified
Signed by: AMIT KUMAR
Signing time: 12/23/2024
4:57:21 PM