Aniyan (C.No.963) vs State Of Kerala

Dr Kauser Edappagath, J

This appeal has been filed under Sections 374(2) and 383 of the Cr.P.C by the first accused in S.C.No.704/2014 on the file of the Additional Sessions Judge I, Mavelikkara against the judgment dated 12th April, 2016 convicting him under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act (for short ‘the NDPS Act’)

The prosecution case in short in that on 15.05.2013 at about 12.10 pm, while PW3 the Excise Inspector was checking vehicles in front of KTDC beer parlour near Nangiarkulangara, he found the appellant who is the first accused carrying 2.345 Kilograms of ganja, sitting on the back seat of autorickshaw bearing Reg.No. KL-28-A-7464 driven by the second accused who also possessed 100 grams of ganja and thus committed the offence. The detecting officer introduced and informed them that he was about to search them and also asked them whether they required the presence of a gazetted officer or Magistrate to search their body. Even though they said ‘no’, PW3 prepared Ext.P3 letter addressed to PW7, the then Haripad Excise Circle Inspector, requesting his presence at the scene of occurrence for the purpose of conducting body search of the accused. PW7 came to the scene of occurrence, introduced himself to the appellant and also about the proposed body search. Thereafter, PW3 conducted body search of the appellant in the presence of PW7. On search, PW3 detected a blue coloured plastic cover containing grey coloured substance having pungent smell of ganja. On physical examination, it was found to be the leaf on the top, stem, flower and seed of ganja plant. He weighed the ganja and it was found to be 2.345 kgs. He then seized the plastic cover carried by the second accused and on inspection, he found 100 grams of ganja in it. PW3 seized those items including the vehicle, properly packed, labelled and sealed the contraband in the presence of the witnesses. He also prepared Ext.P2 seizure mahazar and Ext.P1 search list in which PW7 put his signature. Thereafter, PW3 produced the accused along with the records and contrabands before PW7, who registered the crime and occurrence report as per Ext.P15. The seized contraband substance was produced at the court on the same day itself. The contraband substance was sent for chemical analysis as per Ext.P16. Then, PW8 took up the investigation. After analysis, chemical analysis report was received, which was marked as Ext.P14. After investigation, complaint was filed before the Sessions Court, Alappuzha which was later made over to the court below for trial and disposal.

The accused No.2 died during trial. After hearing the prosecution and the defence, charge was framed against the appellant under Section 20(b)(ii)(B) of the NDPS Act. The charge was read over and explained to the appellant, who pleaded not guilty.

The prosecution examined PW1 to PW8 and marked Exts.P1 to P19. MO1 to MO4 were identified. After closure of the prosecution evidence, the appellant was examined under Section 313 Cr.P.C. He denied all the incriminating circumstances brought against him during evidence. He submitted that he is innocent. After questioning him under Section 313 Cr.P.C, the court below heard the learned Public Prosecutor as well as the learned counsel for the appellant under Section 232 of Cr.P.C. It was found that the appellant was not entitled to an order of acquittal at that stage. The appellant was called upon to enter on his defence. No defence evidence was adduced.

Considering the evidence on record, the court below found the appellant guilty of the offence punishable under Section 20(b)(ii)(B) of the NDPS Act and he was convicted for the said offence. He was sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of ₹1,00,000/-, in default to suffer rigorous imprisonment for a period of one year. Aggrieved by the said conviction and sentence, the appellant preferred this appeal.

Since the appellant is not represented by a lawyer, this court appointed Sri. Lijoy. P. Varghese as Crown counsel. I place on record the able assistance rendered by him.

I have heard Sri. Lijoy. P. Varghese, the learned counsel for the appellant and Sri.Sangeetha Raj, the learned Public Prosecutor.

The learned counsel appearing for the appellant impeached the finding of the court below on appreciation of the evidence and resultant finding as to the guilt. The learned counsel submitted that PWs 3 and 7, whose evidence were heavily relied on by the court below, are official witnesses and also there is non-compliance of Section 50 of the NDPS Act. The counsel submitted that the quantity of the ganja seized from the possession of the appellant is only 2.345 kgs and hence sentence imposed is excessive. The learned Public Prosecutor on the other hand, supported the findings and verdict handed down by the court below and argued that necessary ingredients of Section 20(b)(ii)(B) of the NDPS Act had been established and the prosecution has succeeded in establishing and proving the case beyond reasonable doubt.

The prosecution mainly relied on the oral testimony of PWs 3 and 7, and Exts.P1, P2, P3, P8, P14 and P16 to prove the possession of the ganja by the appellant and arrest and seizure of the same. PW3, the detecting officer, deposed that at about 12 noon on 15.05.2013, while he was checking vehicles in front of KTDC beer parlour which is about 200 metres South to Nangiarkulangara junction, he saw a bajaj autorickshaw bearing Reg.No. KL-28-A-7464 coming towards south and he gave a signal to stop the vehicle and it stopped about 20 meters north from the place where they were standing. He further deposed that, the driver as well as the passenger sitting were found perplexed and the appellant who was sitting on the back side of the autorickshaw carrying a blue coloured plastic cover attempted to run away. He suspected that the appellant was carrying contraband substance and hence he told the appellant his right to have his body search in the presence of a Magistrate or a gazetted officer. He further deposed that he conducted the body search of the appellant in the presence of PW7 and he could seize the contraband substance. MO1 is the contraband substance and MO2 is the blue plastic cover. His evidence would further show that MO1 was properly packed, labelled and sealed. He has also prepared a scene mahazar, which was marked as Ext.P2. PW3 further deposed that he arrested the appellant at 1.40 pm, produced him along with the contraband before PW7 and crime was registered. Ext.P15 is the crime and occurrence report. PW3 also identified the appellant and the material objects at the court. Ext.P14 chemical examination report would clearly show that the seized material objects forwarded to the Forensic Science Laboratory were intact and the parcel containing the MOs was sealed with impression of the seal corresponding to the seal impression forwarded as per the forwarding note. He clearly deposed about the arrest of the appellant, search and seizure of the contraband substance. Thus, search and seizure of the contraband substance and the arrest of the appellant were amply proved.

The next question is whether there is any violation of the provisions of Section 50 of the NDPS Act. The evidence of PWs 3 and 7 would show that PW3 prepared Ext.P3 letter and sent to PW7 requesting his presence at the place of occurrence for conducting body search of the appellant. Thereafter, the body search was conducted by PW3 in the presence of PW7. The evidence would further show that the appellant was apprised of his right to get the body search conducted in the presence of a gazetted officer or Magistrate. Hence, I am of the view that there is compliance of Section 50 of the NDPS Act as well. That apart, strictly speaking, Section 50 is not attracted inasmuch as the seizure is not from the body of the appellant, but from the plastic bag carried by him.

The learned counsel for the appellant next argued that the appellant is entitled to get the benefit of doubt as the colour of the contraband mentioned in Exts.P16 and P17 are different. PWs 3 and 7 described the contraband substance as grey coloured while in Ext. P14, the physical appearance is green colour, argued the counsel. On the other hand, PW6 the Assistant Chemical Examiner deposed that the colour of the contraband substance is greenish brown colour and as the leafy material is dry, it will appear in brownish colour. He further deposed that a mere look may give the impression that it is grey coloured. That apart, no circumstance is brought out in evidence to show that there is a manipulation or tampering of the contraband substance.

Ext.P14 is the chemical analysis report. It would show that the parcel containing the material object sent to the forensic science laboratory was sealed with the impression of the seal, corresponding with the seal impression forwarded and the seals were intact. It will also show that the seized material objects tallied with the seal impression forwarded. In Ext.P14 the details of the chemical examination conducted have been clearly mentioned. In Ext.P14 it is clearly stated that cannabis sativa (ganja) was detected. Cannabis sativa (ganja) is a narcotic drug. The quantity of ganja seized from the possession of the appellant was 2.345 kgs. Thus, the prosecution has established that the material object seized is a psychotropic substance as defined under Section 20(b)(ii)(B) of the NDPS Act.

The next question is regarding the sentence. The court below sentenced the appellant to undergo rigorous imprisonment for a period of seven years. The quantity involved is only 2.345 kgs which is just above the small quantity and much below the commercial quantity. The petitioner has no criminal antecedents. A report filed by the Jail Superintendent would show that the petitioner had already undergone the actual imprisonment of 6 years, 8 months and 4 days as on 16/7/2022 including the period of remand set off u/s 428 of Cr.P.C. The petitioner was also sentenced to pay a fine of ₹1,00,000/-, in default to suffer rigorous imprisonment of one year. Thus, if the substantive sentence is reduced to 5 years of rigorous imprisonment, the actual imprisonment already undergone by him will take the entire sentence including the default sentence so that he can be released from jail.

Considering the entire facts and circumstances of the case, the substantive sentence of imprisonment is reduced to 5 years. Since the appellant has already undergone the modified sentence including the default sentence, he shall be released forthwith, if he is not required otherwise.

Crl.Appeal is allowed in part as above.