Gujarat High Court
State vs Nitin on 3 February, 2011
Author: Akil Kureshi
Bench: Akil Kureshi
Gujarat High Court Case Information System
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SCR.A/989/2009 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 989 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKIL KURESHI
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
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 ?
5
Whether
it is to be circulated to the civil judge ?
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STATE
OF GUJARAT, THRO' B. R. CHOKSI, SR. DRUGS INSPECTOR - Applicant(s)
Versus
NITIN
SHANTILAL BHAGAT DIRECTOR, & 1 - Respondent(s)
=========================================================
Appearance
:
MR
DC SEJPAL, APP For Applicant(s) : 1,
MRS SHILPA R SHAH for
Respondent(s) : 1 -
2.
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 03/02/2011
ORAL
JUDGMENT
This petition has been filed by the State challenging the judgment and order dated 12.5.2008 passed by the learned Chief Metropolitan Magistrate, Ahmedabad in Criminal Case No.368/96. The case pertains to offence punishable under the provisions of Drugs and Cosmetics Act 1940 allegedly committed by the respondents herein. During the course of trial, the respondents filed an application dated 13.3.08 and stated that the trial is in progress, and five witnesses have been examined. The accused also stated several reasons due to which according to them, punishment below the minimum prescribed under the relevant provisions of the Drugs and Cosmetics Act was required to be imposed in their case. It appears that the State opposed this application. No order was passed on the said application of the accused. Once again on 3.4.08, they moved a fresh pursis and stated that the offences are of technical nature and the case is pending since 12 years resulting into great mental agony to them. The Court may, therefore, impose punishment even less than the minimum prescribed. In reply to this application, the State filed a detailed opposition at Ex.68 contending, inter alia, that offences alleged are serious and in case of offence under section 27(c) of the Drugs and Cosmetics Act, minimum punishment prescribed is of three years and in case of offence under section 27(d), minimum sentence prescribed is of one year. There is evidence on record against the accused of having committed such offences. Offences are of serious nature and therefore strict punishment may be imposed. It was also contended that provisions of plea bargaining would not apply to such offences under the Drugs and Cosmetics Act.
Before the learned Magistrate on 12.5.08, the accused pleaded guilty. Such plea was unconditional as is apparent from the recording of pleas at Ex.71 and 72. Thereupon the learned Magistrate proceeded to pass the impugned order on 12.5.08 itself.
I have perused the order under challenge with the assistance of the learned advocates appearing for both sides. The learned Magistrate in the said order has relied heavily on the provisions of plea bargaining added in the Criminal Procedure Code in the newly introduced Chapter XXI-A. Learned Magistrate recorded that the case is pending since 12 years. Accused have admitted their guilt. Provisions of plea bargaining therefore should be applied. Many cases are pending. This case is likely to take further time before conclusion. Therefore, also, benefit of plea bargaining should be granted to the accused. Considering all these aspects, placing heavy reliance on the concept of plea bargaining, the learned Magistrate proceeded to impose punishment of fine of Rs.5,000/- and imprisonment till rising of the Court.
In my view, the learned Magistrate committed serious error in imposing, what the Supreme Court in different cases, described as 'flea-bite' of a punishment, that too relying on the principles of plea bargaining which are not applicable in the present case. The offences alleged against the accused were those punishable under section 27(d) of the Drugs and Cosmetics Act, for which minimum punishment prescribed is of one year, subject to of course, imposing below the minimum, for adequate and special reasons to be recorded in the judgment. It would, therefore, be necessary to find out whether there were adequate and special reasons recorded by the learned Judge in the impugned judgment.
I have threadbare perused the judgment under consideration. Sole ground on which the learned Magistrate was prompted to impose punishment well below the minimum was that the accused had pleaded guilty before the trial was over and that therefore they should be given the benefit of plea bargaining. The entire logic was fallacious. Principally, the accused had never applied for plea bargaining. Their applications dated 13.3.08 and 3.4.08 never mentioned anything about their preparedness to admit the guilt on condition or promise that lesser punishment will be imposed. Such applications even if remotely considered as ones of plea bargaining were stoutly opposed by the State through written reply wherein it was contended that the offence cannot be stated to be technical, there is sufficient proof on record to drive home the charges and plea bargaining would not apply in such cases. Despite such strong opposition from the State, learned Magistrate unilaterally and in my view erroneously proceeded to apply the provisions of plea bargaining and imposed punishment which was almost non-existent. Sentence of imprisonment till rising of the Court and fine of Rs.5,000/- by no stretch of imagination can be stated to be any worthwhile punishment particularly when ordinarily offence under section 27(d) of the Drugs and Cosmetics Act would attract minimum sentence of one year.
The concept of plea bargaining cannot be applied arbitrarily. It is governed by the statutory provisions contained in Chapter XXI-A of the Criminal Procedure Code. A detailed procedure is prescribed in section 265A to 265L. No such procedure was followed in the present case. In fact, application of the accused was not for plea bargaining. Even it was treated to be one for plea bargaining, the same was opposed by the State. Under the circumstances, I am of the opinion that the learned Judge committed serious error in importing the principles of plea bargaining and reducing the punishment well below the minimum punishment prescribed under the law. Reasons recorded cannot be stated to be either adequate or special reasons to impose punishment below the minimum.
Under the circumstances, order dated 12.5.08 passed by the learned Chief Metropolitan Magistrate is quashed. Instead of undertaking the exercise as to what should be the appropriate punishment, in the facts of the case, I deem it proper that the entire proceedings be remanded to the learned Judge for consideration after hearing the accused. It is clarified that admission of guilt has achieved finality. The learned Magistrate shall, therefore, proceed from the stage of giving an opportunity of hearing to the accused regarding appropriate punishment, which would include producing any material they wish to with reference to quantum of punishment. It would be open to the learned Magistrate to impose appropriate punkishment upon completion of this exercise. Nothing stated hereinabove would limit the right of the accused to seek punishment below the minimum prescribed or for the Magistrate to consider such a request in accordance with law.
With the above observations and directions, the petition is disposed of. Rule is made absolute to the above extent.
(Akil Kureshi, J.) (vjn) Top