IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 Crl.Rev.Pet.No. 194 of 2009(D) ------------------------------ CRA.442/2007 of ADDL. SESSIONS COURT (FAST TRACK-II), ALAPPUZHA CC.398/2003 of CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED NO.1 ------------------------------------------- HUSSAN, AGED 53 YEARS, S/O KOCHUKOYA, KUNNEL VELI, MANNANCHERY, KALAVOOR, ALAPPUZHA DISTRICT. BY ADV. SRI.S.SHANAVAS KHAN SMT.S.INDU RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.194 of 2009 -------------------------------------- Dated this the 25th day of May, 2009. ORDER Public Prosecutor takes notice for respondent. 2. Case against the petitioner is that on 5.12.2001 at about 2 p.m. he was found possessing 57 grams of ganja on the public road near Ambedkar Junction at Kalavoor. He faced trial in the court of learned Chief Judicial Magistrate, Alappuzha along with accused No.2 for offence punishable under Section 20(b) A of the Narcotic Drugs and Psychotropic Substances Act (for short, “the Act”), the allegation against accused No.2 being that he had entrusted the contraband to the petitioner for sale. Accused No.2 was acquitted of the charge against him. Petitioner was found guilty, convicted and sentenced to undergo rigorous imprisonment for three months. In appeal, learned Sessions Judge confirmed the conviction and sentence. Hence this revision. 3. Learned counsel for petitioner contended that there is no sufficient evidence to show that petitioner kept in his possession the contraband on the relevant day, time and place and that in any event the mandatory provisions of Section 42(2) of the Act have been violated and hence, conviction is bad in law. Learned Public Prosecutor contends that the courts below have properly appreciated the evidence and found that petitioner possessed the contraband. The requirement of Section 42(2) of the Act has no application. It is argued that Crl.R.P.No.194/2009 2 no interference is required with the concurrent findings. 4. PW1, detecting officer (Sub Inspector) has given evidence that on getting information about a person engaged in sale of ganja near Ambedkar Junction on 5.12.2001 he recorded that information and sent the same to his superior officer and along with party including PWs 2 and 3 proceeded to the spot where he found the petitioner and a few others. PW1 asked the petitioner whether the latter required to be searched in the presence of a gazetted officer or magistrate. Petitioner expressed his desire to be searched in the presence of a gazetted officer. Petitioner was thereon taken to the office of the local Tahsildar (PW4). In the presence of the Tahsildar, petitioner was searched and the contraband wrapped in paper and plastic sheet and a few currency notes were seized from the petitioner. PW1 collected sample of ganja, the same as well as rest were properly packed, labeled and sealed and taken into custody as per Ext.P1, mahazar. On the information that the contraband was entrusted to petitioner by accused No.2, latter was also arrested. PW1 identified the rest of the ganja as MO1 and the paper,MO2. Ext.P2 is the property list he prepared for production of the material objects in court. PWs 2 and 3, constables who claimed to have accompanied PW1 have given similar evidence. But PW2 was not able to speak about the currency notes seized from the possession of petitioner. He was declared 'hostile' to the prosecution for that reason. PW3 claimed that he prepared Ext.P1, seizure mahazar as directed by the detecting officer. PW4 is the Tahsildar. He is an attestor in Ext.P1. He has given evidence that in his presence the body of the petitioner Crl.R.P.No.194/2009 3 was searched and the contraband was seized. PW5 is the chemical examiner. He proved Ext.P7, report of chemical examination where it is stated that the sample was identified as ganja. PW7 is the Deputy Superintendent of Police. Ext.P8 is the letter sent to PW7 by PW1 reporting the information he received. Ext.P9 is the report PW1 sent to PW7 after registration of the case. 5. So far as seizure of the contraband is concerned, there is evidence of PWs 1 to 5 and Ext.P1, the seizure mahazar. Nothing is brought out to disbelieve the evidence of PWs 1 to 5. Ext.P1, the contemporaneous record prepared by PW1, would corroborate the evidence of PWs 1 to 5. Requirements of Section 50 of the Act have also been complied with. Courts below have concurrently found that the contraband was seized from the possession of petitioner. There is no reason to disbelieve PWs 1 to 5. 6. Then the question is whether there is non-compliance with the provisions under Section 42(2) of the Act. Petitioner examined the Station House Officer and proved Exts.D1 to D3. Courts below found that there is evidence of PWs1 and 7 and Exts.P8 and P9 which contained the endorsement of PW7 as to when he received the said reports. Courts below observed that at any rate Section 42(2) of the Act has no application since that provision applied only in the matter of search of enclosed places and not to seizure from the person of the accused on the public road. That position has been confirmed by the Supreme Court in State of Punjab v. Baldev Singh (AIR 1999 SC 2378) which has been followed by this Court in various cases including Abdu Rai v. State of Kerala (2001 (1) KLJ 432) and Abdul Azeez v. Crl.R.P.No.194/2009 4 State of Kerala (2001(1) KLJ 710). Therefore that contention also is not available to the petitioner. I do not find any illegality, irregularity or impropriety in the finding of the courts below that petitioner committed offence punishable under Section 20(b) A of the Act. 7. Learned counsel made a fervent plea to modify the sentence to payment of fine. It is not disputed that petitioner is accused in another case for similar offence. In view of that and also the adverse effect the act of the petitioner created in the society I am not persuaded to think that the sentence could be modified as one of fine. But, considering the quantity of the contraband and also taking into account the age of the petitioner and that he has been fighting this case since the last several years, I am inclined to think that rigorous imprisonment for one month is sufficient in the ends of justice. Resultantly, revision petition is allowed in part to the extent that the sentence awarded to the petitioner is modified as rigorous imprisonment for one month. Set off as provided under law is allowed. Crl.M.A.No.621 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks