RADHAKRISHNAN S/O.CHOZHYKUTTY Vs STATE OF KERALA

The appellant herein challenges the conviction and

sentence against him under Section 20(b)(ii)B of the

Narcotic Drugs and Psychotropic Substances Act (for short

" N.D.P.S Act ") in S.C 1103/2008 of the Special Court for

the trial of NDPS Act Cases (Additional Sessions Court

(Adhoc -I), Thrissur.

The prosecution case is that about 2.30 p.m on

25.5.2000, at Vazhimukku on the Ambedkar Colony Road

within the Anthikkadu Excise Range, the accused was found

possessing 1.050 kgs of Ganja. The offence was detected

by the Circle Inspector of Excise, Thrissur during his patrol

duty. The party led by him saw the accused carrying a big

shopper in his hands. On seeing the Excise team, the

accused got perplexed, and tried to conceal the big

shopper. When the Circle Inspector opened it on suspicion,

he found a packet containing some quantity of ganja. The

accused was arrested and the contraband articles were

seized as per a mahazar. He produced the accused and the

properties at the Excise Range Office, Anthikkadu, where an

Excise Inspector registered the crime and occurrence report.

He investigated the case, and submitted final report in court.

The accused appeared before the trial court on

summons and pleaded not guilty to the charge framed

against him under Section 20(b)(i) of the N.D.P.S Act. The

charge was framed under Section 20 (b) (i), and conviction

was also made under Section 20 (b)(i) of the N.D.P.S Act, but

the correct law must be Section 20 (b) (ii) B of the N.D.P.S.

Act .

The prosecution examined six witnesses in the

trial court and proved Exts.P1 to P14 documents. When

examined under Section 313 Cr.P.C, the accused denied the

incriminating circumstances. He did not adduce any

evidence in defence. The MO1 to MO3 properties were also

identified during trial.

On an appreciation of the evidence, the trial court

found the accused guilty under Section 20(b)(i) of the

N.D.P.S. Act. On conviction, he was sentenced to undergo

rigorous imprisonment for 7 years, and to pay a fine of

50,000/- by judgment dated 7.1.2011. Aggrieved by the

judgment of conviction, the accused has come up in appeal.

On a perusal of the entire materials including the

evidence given by the material witnesses, I find that the

accused was rightly convicted by the trial court, though the

section of law under which he was convicted requires

correction. This is a case where unauthorised possession of

ganja having a quantity in between 1 kg and 20 kgs is

alleged. If proved, the offence must come under Section 20

(b) (ii) B of the N.D.P.S Act . Of course, when the conviction is

confirmed, the section of law will have to be altered by this

court.

Of the six witnesses examined in the trial court,

PW3 is the Circle Inspector of Excise, who detected the

offence, PW4 is an excise official, who assisted PW3 in the

process of detection, and PW5 is the Excise Inspector, who

registered the crime and occurrence report and also

investigated the case. PW6 is the Excise Inspector, who

submitted final report in court. PW2 examined as an

independent witness turned hostile. The initial investigation

was conducted by PW1.

PW3 and PW4 have given definite and consistent

evidence proving the detection in this case including the

arrest of the accused and the seizure of 1050 gms of ganja

from his possession. They also proved the Ext.P3 detection

mahazar, and also the Ext.P4 label on MO1 containing the

signature of the accused, and the witnesses. The evidence

given by these two witnesses is that during patrol, the

excise party led by PW2 saw the accused coming along the

Ambedkar Colony Road with a big shopper in his hands. On

seeing the excise party, he got perplexed and he made an

attempt to conceal the big shopper. On suspicion, the

Circle Inspector intercepted him and examined the big

shopper. When he opened it, he saw a packet containing

some quantity of ganja. When he weighed it, it was found

having a weight of 1050 gms. The accused was arrested on

the spot and the quantity of ganja along with the big

shopper was seized as per Ext.P3 mahazar. The required

sample was taken from the total quantity of ganja, and it

was packed and sealed at the spot of detection. The

remaining quantity of ganja was also well packed and

sealed, and labels containing the signature of the accused

and the witnesses were affixed on the sealed packets. The

accused and the properties were taken to the Excise Range

Office where the crime and occurrence report was registered

by the Excise Inspector-in-charge of the Range. This

evidence given by PW3 and PW4 stands not discredited in

any manner. PW3 has also given clear evidence regarding

the compliance of the provisions of Sections 50 and 57 of

the N.D.P.S Act.

Ext.P13 report of chemical analysis shows that

the sample sent from the court for analysis was detected as

ganja. It stands well proved by the evidence of PW3 and

PW4 that this sample was taken from the MO1 property

seized from the hands of the accused. Both the witnesses

clearly identified the MO1 packet containing ganja and

bearing the Ext.P4 label. The signature put by the accused

on the label was specifically identified and proved as Ext.P4

(a) by PW2. Thus, it stands well proved that the material

contained in the MO1 packet was seized from the hands of

the accused, and the material therein was identified as

ganja.

The crime and occurrence report was registered

by PW5. Investigation was also conducted by him. PW5

completed the investigation and submitted final report in

court. There is nothing to show that there was any sort of

irregularity or flaw in the investigation conducted by PW5.

The detection was made on 25.5.2000 and the properties

were produced in court by PW5 on the next day itself. I find

no infirmity on this aspect. The Ext.P8 forwarding note

contains the specimen seal affixed on the sample and the

other properties.

Now the question is whether PW3 had complied

with the statutory requirements in this case. He has given

definite evidence, corroborated by PW4 that the accused

was informed of his right to be searched in the presence of a

Gazetted Officer or a Judicial Magistrate. On seeing the

accused in suspicious circumstances, trying to conceal the

big shopper carried by him, the Circle Inspector decided to

search his body. Of course, strictly speaking this is not a

case where Section 50 is applicable, because the quantity of

ganja was not seized on body search. It was contained in a

big shopper carried by the accused openly in his hands. In

the case of such a seizure, Section 50 of the N.D.P.S Act is

not applicable. Anyway, the Circle Inspector decided to

conduct search on the body of the accused and accordingly

he was informed of his precious legal right. Notice was

given in writing to the accused, informing of his right to be

searched in the presence of a Gazetted Officer or a Judicial

Magistrate. Ext.P6 is the said notice proved by PW3. His

evidence is that the accused consented in writing for search

by him and waived his right to be searched in the presence

of a Judicial Magistrate or a Gazetted Officer. PW3 identified

the Ext.P6 (a) as the consent given in writing by the accused

at the spot of detection. This evidence stands not

challenged. Thus, I find that PW3 had well complied with the

provisions of Section 50 of the N.D.P.S Act.

Ext.P7 is the report submitted by PW3 under

Section 57 of the N.D.P.S Act. This is also well proved by

him. It contains an endorsement made by the Assistant

Commissioner of Excise showing receipt of the report. This

endorsement is also proved by PW3 as Ext.P7(a). The Ext.P7

report will show that this report was sent by PW3 without

any delay and the Ext.P7(a) endorsement shows that it was

received by the Assistant Commissioner of Excise within

time. Ext.P7 report contains all the essential requirements

under Section 57 of the N.D.P.S Act like the details of the

accused, the details of the crime, the details of the

contraband, the date and time of detection, the details of

the sampling process etc. Thus, I find that Section 57 of the

N.D.P.S Act was also well complied with by PW3 in this case.

As discussed above, I find that the prosecution

has well proved the case beyond reasonable doubt, that at

about 2.30 p.m on 25.5.2000, the accused was found

possessing a quantity of 1050 gms of ganja carried in the

MO2 big shopper.

Now the question of sentence. The substantive

sentence imposed by the court below is rigorous

imprisonment for 7 years, and the fine sentence is

50,000/-, but the default sentence is only simple  imprisonment for 15 days. I find no reason for interference

in the fine sentence, but the jail sentence requires

interference by way of reduction, on a consideration of the

quantity of ganja, and also the age of the accused at the

time of detection. Now he must be aged 57 years. Anyway,

I feel that rigorous imprisonment for 1 = years will be the

adequate sentence in this case. Subject to this reduction,

the conviction can be confirmed in appeal.

In the result, the conviction against the appellant in

S.C 1103/2008 of the court below is confirmed subject to the

modification that the conviction shall be under Section 20(b)

(ii) B of the N.D.P.S. Act . However, the jail sentence imposed

by the trial court will stand reduced to rigorous

imprisonment for one and half (1=) years. The fine

sentence, with the default sentence thereon imposed by the

court below is maintained. The appellant will get the benefit

of set off as already ordered by the trial court.