N. Sudharsan and Ramulu vs State

G.M. Akbar Ali, J.—The appellants herein, who is the accused in C.C. No. 140 of 2004, on the file of the learned Special District and Sessions Judge (For Essential Commodities Act) Pudukiottai, stand convicted for an offence u/s 8(c) r/w 20(b)(ii)(c) of NDPS Act and sentenced 10 years rigorous imprisonment and to pay a fine of Rs. 1,00,000/- in default, to undergo three months rigorous imprisonment. Aggrieved by the said conviction and sentence, the appellants have preferred these Criminal Appeals.

The case of the prosecution is that on 01.07.2003 at about 15.00 hours at Samayapuram No. I Toll-gate near Anjaneyar Temple, the accused Nos.1 to 3 are found in possession of 25 Kgs of ganja and the first accused by name Sudharsan has given a voluntary confession to the effect that 35 Kgs of ganja has already been given to one Seenivasan and the same has also been seized. Under the said circumstances, the accused have committed for the offence u/s 8(c) r/w 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

On the basis of the alleged culpability of the accused, the trial Court has framed a charge against all the accused u/s 8(c) r/w 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and the same has read over and explained to the accused and all the accused have denied the charge and claimed to be tried.

The trial Court, on consideration of oral and documentary evidence found that all the accused guilty u/s 8(c) r/w 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

This Court considered the submission of both sides and perused the records.

Mr. R. Gandhi, learned Counsel for the the appellant/A1 and Mr. K. Jeganathan, learned Counsel for the appellant/A3 would submit that in Crl.A.(MD). No. 252 of 2004, the conviction and sentence imposed on the second accused was reduced by six year and fine Rs. 20,000/- was imposed by this Court and produced the unreported judgment of this Court, wherein this Court considered in similar matter arising out of a same transaction and has observed as follows:

From the available records, the Court can easily find out that the sample which has been taken from 25 kgs of ganja has been subjected to chemical examination and the chemical analysis report has been marked as Ex.P5, wherein it has been specifically stated that the sample contains chenophenoid. But as rightly pointed out by the learned Counsel appearing for the appellant/second accused the percentage of chenophenoid has not been mentioned in Ex.P.5.

14.It is an admitted fact that 20 kgs of ganja would come within the commercial quantity. In the instant case even though 25 kgs of ganja have been seized from the accused 1 to 3, the prosecution has not positively established as to the fact what is the actual quantity of ganja (chenophenoids). Therefore, it is quite clear that the Court cannot come to a conclusion that the alleged contraband would come within the purview of commercial quantity since the prosecution has failed to establish the above factual aspects, the Court can easily come to a conclusion that the appellant/second accused has committed offence u/s 8(c) r/w 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Since the appellants are also placed in the similar position, I have no hesitation in following the earlier orders passed by this Court in Crl.A.(MD). No. 252 of 2004, dated 21.07.2009.

In the result, both the appeals are allowed in part and the conviction and sentence passed in C.C. No. 140 of 2004, dated 15.10.2004, on the file of the learned Special District and Sessions Judge (For Essential Commodities Act) Pudukiottai, is modified as follows:

The appellants/accused are found guilty u/s 8(c) r/w 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to undergo six years rigorous imprisonment and also imposed a fine of Rs. 20,000/- (Rupees twenty thousand only) and in default of payment of fine, the appellants must undergo ten months rigorous imprisonment.

As it is reported by the learned Counsel for the appellants that the appellants/accused are already in prison for more than six years, the Jail Authority is directed to verify whether the appellants/accused have already undergone the sentence of imprisonment and the default of sentence of imprisonment for non payment of fine, the appellant shall be released forthwith if not required in any other case. Consequently, connected miscellaneous petitions are closed.

Since it is represented that the appellants/accused are confined in Central Prison at Warangal, Andhra Pradesh ,the Registry is directed to mark a copy to the Superintendent, Central Prison, Warangal, Andhra Pradesh .