1 2025:CGHC:42756 HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 961 of 2025 1 - Rajesh Patel S/o Vijay Patel Aged About 21 Years R/o Village Dayalpur, Aghariya Para, P.S. Saliha, District : Balodabazar-Bhathapara, Chhattisgarh. 2 - Mahendra Bahadur Patel S/o Alekh Ram Patel Aged About 20 Years R/o Village Parsapali, Taripara, P.S. Saliha, District : Balodabazar-Bhathapara, Chhattisgarh ... Appellants versus State of Chhattisgarh through Station House Officer, Police Station City Kotwali, Raipur, District Raipur, Chhattisgarh. ... Respondent For the petitioners : Mr. C.R. Sahu, Advocate For the State : Mr. Karan Kumar Bahrani, Panel Lawyer (Hon’ble Shri Justice Sanjay Kumar Jaiswal) (Order on Board) 22/08/2025 1. The present criminal appeal under Section 415(2) of the Bharatiya Nagarika Suraksha Sanhita, 2023 has been preferred by appellants challenging the judgment of conviction and order of sentence dated 05.05.2025 passed by the learned Special Judge (NDPS) Act, Raipur (C.G) 2 in Special Criminal Case (NDPS Act) No.88/2021 whereby the appellants have been convicted and sentenced as under: Conviction : Sentence U/s 20(b)(ii)(B) of the NDPS Act RI for 05-05 years and fine amount of Rs.50,000 – 50,000/-, in default of payment fine, additional RI for 1 year each 2(i). The allegation against the appellants is that on 24.06.2021, near Moti Bagh Gate, under City Kotwali, District Raipur, the accused appellants were found in joint possession of a total quantity of 4 Kgs and 900 grams of narcotic Ganja, thereby the appellants have committed offence punishable under section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2(ii). The further case of prosecution is that the Assistant Sub-Inspector Omkar Prasad Sahu of Police Station City Kotwali Raipur received information from an informer that two boys are standing on a numberless motorcycle, who were carrying the narcotic substance Ganja in a black colored backpack and were looking for a customer to sell it. After recording said information in Sanha No.28, the investigation team along-with two independent witnesses rushed to the spot as informed by the informer near Motibagh where the appellants were seen sitting on a black Hero Glamor motorcycle without number plate. When the appellants were surrounded and enquired, they told their names to be Rajesh Patel and Mahendra Bahadur Patel. After following the mandatory requirements, the search was conducted, upon which, the appellants were found to be in joint possession of 4 Kgs., and 900 grams of narcotic Ganja which was seized from joint possession of the appellants. Two samples of 50 – 50 grams ganja were collected from the seized Ganja and sent to the FSL for examination. After completing the investigation and on complying with other procedural requirements, the charge sheet was filed. 3 3. The prosecution has in all examined 10 witnesses and exhibited 45 documents to prove its case. The accused were examined under Section 313 CrPC wherein they pleaded innocence and false implication. After conclusion of trial and considering the evidence of prosecution witnesses and material available on record, learned Trial Court by impugned judgment, convicted and sentenced the appellants as mentioned above. 4. At this stage, learned counsel for the appellants submits that he does not want to press this appeal on merits and confines his argument only to sentence part. He also submits that out of the maximum jail sentence of 05 – 05 years imposed on appellants u/s 20(b)(ii)(B) of NDPS Act for carrying contraband ganja, they had already completed in jail the custody period of 5 months and 16 days . He submits that the incident took place in 2021, since then the appellants are facing the lis and there are no criminal antecedents reported against the appellants. He further submits that there is no minimum sentence provided for the offence punishable under Section 20(b)(ii)(B) of the NDPS Act and looking to the quantity of ganja seized, he prays that the sentence of the appellants be reduced to the period already undergone by the appellants in the interest of justice. 5. Per contra, learned State Counsel supports the impugned judgment and opposes the arguments advanced on behalf of the Appellant. However, he does not dispute the fact that the appellants have no criminal antecedents. 6. I have heard learned counsel for the parties and have also perused the material available on record including the impugned judgment. 7. Having gone through the material available on record and the statements of witnesses especially the raiding officer P.W.9 Omkar Prasad Sahu, Head Constable P.W.8 Goutam Bhoi which substantially proved the 4 recovery of contraband from the joint possession of the appellants as also the FSL Report (Ex.P-44) which shows that the sample material contained in Articles A & B were found to be positive Ganja, this Court does not find any illegality or infirmity in the findings recorded by the trial Court as regards the conviction of the appellants for the offence punishable u/s 20(b)(ii)(B) of the NDPS Act and it is hereby affirmed. 8. Further, Since the appeal is not pressed on the question of conviction and it is only pressed on the count of sentence, it is necessary to re- examine and re-appreciate the oral and documentary evidence adduced by the prosecution before the trial Court. There is no dispute that as per Sr.No.55 regarding the 'Ganja', contained in table appended 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 joint possession of accused was weighing 4 kgs. and 900 gms., meaning thereby, the quantity was greater than small quantity and much lesser than commercial quantity. Now, as per Section 20(b)(ii)((B) of the NDPS Act, 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. There is no minimum punishment prescribed for the offence punishable under Section 20(b)(ii)(B). As stated above, so far as 'Ganja' is concerned, the commercial quantity is 20 kgs. and more. 9. Further in case of Mohammad Giasuddin v. State of Andhra Pradesh reported in (1977) 3 SCC 287, Hon’ble Supreme Court while emphasizing the reformative approach observed that if you are to punish a 5 man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries and held in para-9 as follows: “9. Western jurisprudes and 'sociologists, from their own angle have struck a like note. Sir Samual Romilly, critical of the brutal penalties in the then Britain, said in 1817 : "The laws of England are written in blood". Alfieri has suggested : 'society prepares the crime, the criminal commits it’. George Nicodotis, Director of Criminological Research Centre, Athens, Greece, maintains that 'Crime is the result of the lack of the right kind of education.' It is thus plain that crime is a pathological aberration, that the criminal can ordinarily be redeemed, that the State has to rehabilitate rather than avenge. The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by re-culturisation. Therefore, the focus of interest in penology is the individual, and goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore consider a therapeutic, rather than an in 'terrorem' outlook, should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw : 'If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield : “If you are going to have anything to do with the criminal Courts, you should see for yourself the conditions under which prisoners serve their sentences.” 10. In view of the above discussion and applying the analogy of reformative approach laid down in Mohammad Giasuddin (supra) and keeping in view the fact that the sentence imposed upon the appellants are 05 - 05 years each, out of which, they have already served the jail sentence of 5 months and 16 days and there is no minimum sentence prescribed for the offence punishable under Section 20(b)(ii)(B) of the NDPS Act as 6 also the fact that appellants have suffered the mental agony and trauma of protracted trial and further looking to their present age and the fact that no criminal antecedents are reported against them, it will be just and proper if the sentence of 05 – 05 years RI awarded by the trial court for offence under section 20(b)(ii)(B) is reduced to the period already undergone by the appellants. Accordingly, while maintaining the appellants’ conviction, the sentence awarded to them is hereby reduced to the period already undergone. However, it is made clear that the sentence of fine of Rs.50,000 – 50,000/- as imposed by the trial Court and the default stipulation thereof, shall remain intact. 11. In the result, the appeal is allowed in part to the extent indicated hereinabove. 12. The appellants are in jail. They shall be released from jail forthwith if they are not required in any other offence. If any fine amount has already been deposited, the same shall be adjusted in the enhanced fine amount. 13. Let a certified copy of this judgment along with the original record be transmitted to the concerned trial Court forthwith for information and necessary action. A copy of this judgment be also sent to the concerned Superintendent of Jail where the appellants are undergoing jail sentence. Sd/- (Sanjay Kumar Jaiswal) Judge Rao