IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 CRL.A.No. 256 of 2010() ---------------------------------- SC.1434/2004 of II ADDL.SESSIONS COURT, KOLLAM .................................. APPELLANT(S): ACCUSED -------------------------------------- MADHU, S/O.BHARGAVAN, POLAYATHODU VAYALIL, KARPOORAM CHERI, VADAKKEVILA VILLAGE. BY ADV. SRI.SHABU SREEDHARAN SRI.N.A.JOHN JACOB SRI.P.SANJAY SHENOI RESPONDENT(S): COMPLAINANT ---------------------------------------------------- STATE OF KERALA, REP. BY THE S.I. OF POLICE, KOLLAM EAST POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR MR. C.M. NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------------------- Crl.A.No.256 OF 2010 ---------------------------------------------- Dated this the 29th day of July, 2010. JUDGMENT The sole accused in Sessions Case No.1434 of 2004 of the court of II Additional Sessions Judge, Kollam, is the appellant, who challenges his conviction and sentence under Section 20(b)(i) of the NDPS Act, 1995. 2. The case of the prosecution is that the appellant/accused was found in possession of 31 grams of Ganja kept in a plastic cover in front of the E.S.K building situated on the northern side of National Highway at Polayathodu, Kacheri junction at about 4.pm on 16.7.2000. On the basis of the above allegation crime No.687 of 2002 was registered in the Kollam East Police Station for the offence punishable under Section 20(b)(i) of N.D.P.S Act. After investigation, the police filed the report based upon which S.C.No.1434 of 2004 was instituted and during the trial, from the side of the prosecution PWs. 1 to 9 were examined and Ext.P1 to P11 were marked. MO1 to 5 were marked as material objects. No evidence either oral or documentary adduced from the side of the defence. On the basis of the available materials and Crl.A.No.256 OF 2010 2 evidence, the trial court found that the accused is guilty and accordingly he is convicted for the offence charged against him and on his conviction, he is sentenced to undergo rigorous imprisonment for a period of 6 years and to pay a fine of Rs.50,000/- and in default of payment of fine, the accused is directed to undergo imprisonment for another term of 6 months. 3. When the above appeal came up for admission on 5.2.2010 this Court admitted the appeal and issued an order suspending the execution of the sentence upon certain conditions and one of the condition was to deposit a sum of Rs.25,000/- towards the fine amount. The learned counsel for the petitioner/appellants submitted that he is not in a position to deposit the amount and therefore the order passed by this Court was not materialised and still he is undergoing imprisonment in terms of the judgment impugned. 4. The learned counsel for the appellant submitted that as the quantity involved is admittedly only 31 grams which will come within the definition of small quantity and therefore the maximum sentence that can be imposed is only 6 months rigorous imprisonment and a maximum fine amount of Rs. 10,000/-. It is the case of the learned counsel for the appellant Crl.A.No.256 OF 2010 3 that in spite of the above statutory limitation the trial court imposed a sentence of rigorous imprisonment for a period of 6 years and also directed to pay a fine of Rs.50,000/-. It is also submitted by the learned counsel that the petitioner was arrested on 16.7.2002 and subsequently released on bail on 28.9.2002. Thereafter, from the date of impugned judgment on words the appellant is undergoing imprisonment and now he had already undergone the maximum term of imprisonment that can be imposed against him. 5. In view of the facts and circumstances involved in the case especially when the weight of alleged contraband article was only 31 grams, it will come within the definition of small quantity. On hearing the learned Public Prosecutor he had also not controverted the contention raised by the counsel for the appellant and submitted that the maximum sentence that can be imposed of the appellant is only an imprisonment of 6 months and a maximum fine of only Rs,10,000/-. 6. It is pertinent to note that the trial court while pronouncing its judgment, no order under Section 428 of Crl.P.C was passed regarding the set off, if any. Learned counsel submitted that after the arrest of the accused on 16.7.2002, he Crl.A.No.256 OF 2010 4 was in custody as a pretrial prisoner till 28.9.2002 and thus he had undergone a total period of 2 ½ months as an under trial prisoner. It is true, in the judgment there is an observation that accused has a history relating to narcotic drugs and therefore there is no need of leniency in sentencing the accused considering such fact. But absolutely no materials are produced by the prosecution or referred by learned Judge to enter into such observation. Considering the age of the appellant, which now, crossed 53 years, I am of the view that the benefit under section 428 of Crl.P.C can be extended in favour of the appellant. If that be so, the appellant is entitled to get released from jail, as he had already completed the period of imprisonment imposed against him by the trial court reckoning the pretrial detention that he had under gone in the light of that order issued by this Court extending the benefit under Section 428 Crl.P.C. In the result, while confirming the conviction, the sentence of 6 years rigorous imprisonment and the payment of fine of Rs.50,000/- are set aside and the appellant is sentenced to undergo rigorous imprisonment for a period of 6 months. Set off is allowed under Section 428 of the Cr.P.C. Since set off is allowed in favour of the appellant and as the appellant had Crl.A.No.256 OF 2010 5 already undergone the period of imprisonment, he is entitled to get released from jail forthwith, in case he is not required in any other case. The Registry is directed to forward the gist of this order to the Superintendent, Central Prison, Thiruvananthapuram for appropriate action. V.K.MOHANAN, JUDGE. mns