IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 18TH DECEMBER 2008 / 27TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 2771 OF 2007(B) ------------------------------ CRA.47/2007 of ADDL. SESSIONS COURT (ADHOC-I), THODUPUZHA CC.1413/2004 of JUDL. MAGISTRATE OF FIRST CLASS-I (FOREST OFFENCES), THODUPUZHA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED --------------------- NAZEER S/O BASHEER, MALEPARAMBIL (H), KUMMANKALLU KARA, KARIKODU VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.T.J.MICHAEL SRI.P.NOOR SAMIR SRI.A.C.DEVASI RESPONDENT(S)/RESPONDENT/COMPLAINANT ------------------ STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR. PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 2771 OF 2007 ------------------------------------------ Dated this the 18th day of December, 2008 O R D E R Revision petitioner was convicted and sentenced for the offence under section 20(b)(ii)A of NDPS Act by Judicial First Class Magistrate-I. Thodupuzha in C.C.1413 of 2004. The conviction was challenged before Additional Sessions Court, Thodupuzha in Crl. Appeal 47 of 2007. Learned Sessions Judge confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for revision petitioner and learned Public Prosecutor were heard. 3. The learned counsel argued that there was violation of the provisions of section 50 and 42 of NDPS Act, and even though prosecution admitted that revision petitioner expressed desire to be searched in the presence of a gazetted officer, there is no acceptable evidence that search was conducted in the presence of a gazetted officer. It was argued that though prosecution has a case that revision petitioner was searched in the presence of Circle Inspector of police, Kaliyar, who reached the spot on the wireless message furnished by PW3, the Circle CRRP2771/2007 2 Inspector was not examined and he was not even cited as a witness and when the best evidence was not adduced, Courts below were not justified in accepting the evidence of PWs 3, 4 and 7 and as it is not proved that revision petitioner was searched in the presence of a gazetted officer, there is violation of section 50 of NDPS Act. It was also argued that as per the evidence of PW3, on getting information that a person is engaged in sale of Ganja, PW3 has submitted a report to the Circle Inspector in writing as provided under section 42, but such a report was not marked or proved and therefore there is violation of section 42 and hence conviction is bad. Learned counsel also argued that apart from the police officers and Constables, the independent witnesses examined by the prosecution turned hostile and evidence of PW5, disproved the case of PWs 4 and 7 that Ganja was weighed from the spot as according to PW5 it was weighed from his bakery and therefore the seizure itself stands disproved. 4. The learned Public Prosecutor submitted that though the Circle Inspector of police, gazetted officer in whose presence revision petitioner was searched, was not examined, evidence of PWs 3,4 and 7 establish that on getting wireless message Circle Inspector of Police reached the spot and search was conducted CRRP2771/2007 3 only in the presence of the Circle Inspector and therefore there is no violation of section 50 of NDPS Act. Learned counsel also argued that PW3 unambiguously deposed that he has furnished information in writing to his immediate superior officer on getting information and before proceeding to the spot there is no reason to disbelieve that evidence, especially when the records show that the report submitted by PW3 was seen by the Magistrate on 4.1.2004, on the very next day. It is argued that there was no material contradiction and the evidence of PW5 that the Ganja was weighed from his bakery is not sufficient to disbelieve the other evidence corroborated by Ext.P1 mahazar a contemporaneous record prepared at the time of seizure. 5. Ext.P1 seizure mahazar and Ext.P2 First Information Report were seen received by the Magistrate on 4.1.2004 itself as evidenced by the initial of the Magistrate and the Court seal. Along with Exts.P1 and P2, the report sent by PW3 to his immediate superior officer, the Circle Inspector, as provided under section 42 is also produced before the Magistrate and it is seen that it was also signed by the Magistrate on 4.1.2004. Therefore even though it was not specifically marked, records show that evidence of PW3 that before proceeding to the spot and intercepting revision petitioner he had furnished a report to CRRP2771/2007 4 the Circle Inspector as provided under section 42, is correct. The said report also contain the initial of the Circle Inspector on 3.1.2004 for having received the letter. Therefore I find no reason to disbelieve the evidence of PW3 that he proceeded only after submitting a report to his immediate superior officer in writing, as provided under section 42 of NDPS Act. 6. True, the gazetted officer, in whose presence the revision petitioner was alleged to have been searched, was not examined. But the fact that the gazetted officer was not examined by itself is not a ground either to disbelieve the evidence of other witnesses who deposed that information was furnished to the Circle Inspector and Circle Inspector had reached the spot and search was conducted only in the presence of the Circle Inspector. Ext.P1 contains the signature of the Circle Inspector, an attesting witness to Ext.P1, which corroborates evidence of PWs 3, 4 and 7 that Circle Inspector was present at the time of search. Evidence of PWs 3,4 and 7 establish that when revision petitioner was made aware of his right to be searched in the presence of a gazetted officer and revision petitioner wanted to be searched in the presence of a gazetted officer, PW3 informed the Circle Inspector, who is a gazetted officer to be there so that revision petitioner would be CRRP2771/2007 5 searched in his presence. Evidence of PW4 that the Circle Inspector came there as informed by PW3, over wireless, and revision petitioner was searched in the presence of the gazetted officer was not seen challenged in cross-examination, though PWs 3 and 7 were cross-examined. Learned Magistrate and the learned Sessions Judge analysing the evidence of PWs 3, 4 and 7 rightly found the evidence credible and reliable and accepted the prosecution case. 7. On going through the evidence of PWs 3, 4 and 7, even though there is minor contradiction due to the evidence of PW5 that Ganja was weighed not from his bakery shop, I find no reason to interfere with the appreciation by the Courts below. Evidence establish that on getting information that a person is engaged in sale of Ganja, after informing his immediate superior in writing, PW3 along with PWs 4 and 7 proceeded to the spot and found revision petitioner and on the request of the revision petitioner he was searched in the presence of Circle Inspector, a gazetted officer, and 62 grams of Ganja kept in 35 small packets were seized from his body. Evidence establish that a sample of 25 grams of Ganja was prepared, sealed and along with the remaining were produced before the Court and the sample was forwarded for chemical analysis. Ext.P3 certificate of chemical CRRP2771/2007 6 analysis establish that it is Ganja, a narcotic drug. In such circumstances, on the evidence Courts below rightly found that revision petitioner committed offence under section 20(b)(i) A of NDPS Act. The judgment shows that the conviction was under section B of section 20 b(1) of NDPS Act. There is no case that the revision petitioner was in possession of Ganja over and above the small quantity provided under the Act. Therefore the conviction could only be under section 20(b)(i)A and not B. Therefore I find no reason to interfere with the conviction. 8. Then the only question is regarding the sentence. Learned Magistrate sentenced revision petitioner only to simple imprisonment for one month in addition to a fine of Rs.3,000/-. Learned counsel submitted that petitioner had undergone the sentence and deposited the fine before the learned Magistrate. In such circumstances, I find no reason to interfere with the sentence also. Revision is dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-