IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 CRL.A.No. 701 of 2009() ----------------------- SC.6/2007 of SPL. COURT (NDPS ACT CASES), THODUPUZHA ............................................................ APPELLANT(S): APPELLANT ---------------------------------------- GOPI @ GOPALAN, C.NO.3209, CENTRAL PRISON, THIRUVANANTHAPURAM. BY ADV. SRI.ARUN VALENCHERY [STATE BRIEF] RESPONDENT(S): RESPONDENT ----------------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR. BY ADV.SRI.C.M.NAZAR, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.701 OF 2009 -------------------------- Dated this the 14th day of July, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the conviction and sentence passed by the NDPS Court, Thodupuzha, in S.C.6/07. The accused were charge sheeted by the police u/s.20 (b)(1)(B) of the NDPS Act, out of which A2 and A3 were absconding during trial and A1 and A4 faced the trial. A1 was found guilty and sentenced to undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs.15,000/-, on default of which to undergo rigorous imprisonment of 6 months. A4 was sentenced to undergo 3 years imprisonment with a fine of Rs.5,000/-. Aggrieved with that decision, the first accused has come up in appeal from jail and as there was no lawyer to argue his case, State Brief has been provided, whereby Adv.Sri. Arun Valenchery has been appointed as State Brief. The points that arise for determination are, 1. Whether there are sufficient grounds to hold the 2 CRL.A.No.701 OF 2009 appellant guilty under the provisions of NDPS Act, as found by the court below ? 2. In case of guilt, whether the sentence awarded is excessive ? 2. Points 1 and 2 :- It is the definite case of the prosecution that on 23.6.06, PW1 along with his fellow officers, proceeded to investigate the Crime No.186/06 and while they were returning from there, at 96 bhagam in front of the house of one Narayanan, he observed 4 persons carrying big shoppers and bags and were walking along the road. On seeing the police, they attempted to run away but they were prevented from doing so and those persons disclosed their identity and on questioning them it was found that they were carrying dried ganja which was to be entrusted to the respective houses of Sakthi and Rajendran. Thereafter, PW1 prepared a report immediately and entrusted it with a Police Constable to send it to the Circle Inspector of police. Ext.P1 is that report. At about 4.30 P.M. the accused persons were arrested and a mahazar was prepared in the presence of 3 CRL.A.No.701 OF 2009 Pws.2, 3 and 5. Accused Nos.1 and 4 were identified by the witnesses, as the two persons. PW1 had deposed that, the first accused was carrying a black bag which was examined by PW1, in the presence of independent witnesses Pws.2 and 3. It contained 6.200 kg. of dried ganja placed in the bag in two packets. From the said ganja, two 50 gms. samples were taken and paper slips were signed by the independent witnesses and PW1. From S1 packet, ganja was sent for chemical analysis and the remainder in S1 packet is marked as M.O.1, the other sample taken is marked as M.O.2 and the balance ganja is marked as M.O.3. The carry bag is marked as M.O.4. So the evidence of PW1 establishes the apprehension, examination, seizure, sampling and arrest of the first accused in the presence of the witnesses. PW2 is an independent witness. He supports the case of the prosecution very well. According to him, he had gone in connection with the investigation of the crime of one Rathi Vijayan and the police while returning, had found out this case. He had spoken about the apprehension, examination of the bag and 4 CRL.A.No.701 OF 2009 preparation of the mahazar. He had also identified the signature. So his evidence totally supports the case of the prosecution. PW3 is another witness, who had partly turned hostile. But his version supports the evidence of Pws.1 and 2, on material particulars. He had spoken about the arrival of the police and also apprehending the four accused persons. He also speaks about the ganja, that was carried by the accused persons in bags and big shoppers. He also speaks about the electrical weighing balance. But he would say that, the weighing balance was taken from the shop of one Joseph, which made the prosecution declare him hostile. Therefore, the evidence of Pws.1 and 2 and the partial support of the evidence of PW.3 lends credence to the prosecution, regarding the apprehension and seizure of ganja from the appellant/accused. The chemical analysis report of Ext.P21 would reveal that, the materials forwarded for examination was identified as the ganja. So the factum of, the possession of ganja by the appellant also stands established. It was argued before the court below that, the procedural formalities as 5 CRL.A.No.701 OF 2009 contemplated u/s.50 of NDPS Act has not been complied with, which according to the learned counsel for the accused would strike at the root of the prosecution, for the reasons that has been held as mandatory by the courts. When search of a person is done, it is obligatory and mandatory but when it is done on a person who carries a bag which contain ganja, whether the mandate u/s.50 of NDPS Act is compulsory or not had been considered by the apex court in the latest decision reported in 2007 Crl.Law Journal 3414(SC), wherein Ravindran @ John v.Superintendent of Customs AND Peter John v. Superintendent of Custom. It was held in that case that, `when the plastic bag is carried by the accused and it is searched and not his `person', S.50 does not apply'. It was held that, `the plea that accused was not informed of his legal right to get his person searched in presence of a Gazetted Officer or a Magistrate but only two options were given to him, which is not therefore tenable' and that contention was not accepted by the Apex Court. It is 6 CRL.A.No.701 OF 2009 also held by the Apex Court in a decision reported in 2006(2) KLT 370 SC, wherein State of Hariyana V. Ranbir @ Rana. It was held that, `S.50 would be applicable only in case of personal search of accused and not when it is made in respect some baggage like a bag, article or container etc. which the accused at the relevant time was carrying.' So in the light of these two authoritative pronouncements, the contention that he was not informed of his legal right to have a Magistrate or a Gazetted officer, when he is being searched, does not apply at all and so that contention can not be upheld. Now, from the materials it is seen that the accused was in possession of 6.200 kg. of ganja, which involves a quantity lesser than commercial quantity but greater than small quantity, necessarily the accused has to be punished u/s.20(b) (ii)(B) of NDPS Act, which states that the imprisonment can be for a term which may extend to 10 years and with a fine which amounts to Rs.1 lakh. The court below has sentenced the first accused to undergo imprisonment for a period of 5 years. I 7 CRL.A.No.701 OF 2009 feel slight leniency can be shown and the imprisonment be reduced to 4 years. Imposition of fine of Rs.15,000/-, is only proper and that does not call for any interference. In the result the criminal appeal is disposed of as follows :- 1.The finding of guilt of the accused u/s.20(b)(ii)(B) of NDPS Act is confirmed. 2.The sentence is modified and he is sentenced to undergo rigorous imprisonment for a period of 4 years and to pay a fine of Rs.15,000/- and in default to undergo further imprisonment of 3 more months. He is entitled to set off as contemplated u/s.428 of Cr.P.C. M.N.KRISHNAN, JUDGE ami.