IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 16TH JANUARY 2008 / 26TH POUSHA 1929 CRL.A.No.2162 of 2005 (D) -------------------------------- SC.429/2004 of SPL.COURT (N.D.P.S ACT CASES), TRIVANDRUM .................... APPELLANT: APPELLENT ---------------------------- SHEIK ABDUL KADER, S/O.SHEIK ABDUL, C.NO.9936, CENTRAL PRISON, TRIVANDRUM. 695012. BY ADV. SRI.ALEXANDER SKARIA SRI.GRASHIOUS KURIAKOSE RESPONDENT: RESPONDENT --------------------------------- THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA BY PUBLIC PROSECUTOR SRI.THOMAS JOHN AMBOOKAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.2162 of 2005 ------------------------------------------------ Dated this the 16th day of January, 2008 JUDGMENT This appeal is filed by Convict No.9936 of Central Prison, Thiruvananthapuram assailing the conviction and sentence passed against him by the Special Judge for trial of N.D.P.S Act cases, Thiruvananthapuram under Section 21(c) and 29 of the N.D.P.S Act, 1985 as amended by Act 9 of 2001. Though the appeal is preferred from jail Advocate Grashious Kuriakose entered appearance for the appellant filing appearance memo and hence, the appellant is represented by a lawyer of his choice. 2. Heard arguments of counsel for the appellant and the Public Prosecutor for the respondent/State. The prosecution case as against the appellant can be summarised as follows:- Crl. Appeal No.2162 of 2005 -2- 3. At about 9.30 a.m. on 06/10/03, PW1 an Assistant Commissioner of Customs attached to International Airport, Thiruvananthapuram got secret information that a passenger by name Sheik Abdul Khader would arrive at Thiruvananthapuram Airport for his journey to Mali by Indian Airlines Flight on the same day carrying narcotic drugs concealed in his body by swallowing it in the form of capsules. PW1 recorded the said information and forwarded it to his official superior. On directions of his official superior, PW1 accompanied by PW2 who was the Superintendent of Air Intelligence Unit and other intelligence officers went over to the International Airport at the departure lounge and kept surveillance. The appellant Sheik Abdul Khader reached the airport at about 11.30 a.m. When his emigration and customs clearance was over, the customs officials approached him along with two independent witnesses and took him to the Crl. Appeal No.2162 of 2005 -3- intelligence room of the customs unit. He was informed that he was expected to be in possession of narcotic drug and therefore, a search of his body was necessary, informing him further of his right for being searched in the presence of a gazetted officer or a Magistrate. Thereupon, it is said that the appellant opted for search being conducted in the presence of a gazetted officer. Thereupon, search of the body of the appellant was conducted in the presence of PW5, a gazetted officer. On such search no incriminating material could be recovered but on further questioning the appellant, he is stated to have admitted that he had swallowed narcotic drugs in the form of capsules. Thereupon, the appellant was produced before the learned Magistrate having jurisdiction over the area and permission was obtained for X-ray examination of the body of the appellant. X- ray examination was accordingly conducted at Crl. Appeal No.2162 of 2005 -4- the Medical College Hospital and the examination revealed that a number of thin walled oval foreign bodies were there in the abdomen of the appellant. Consequently, he was admitted in the Medical College Hospital for evacuation of the capsules found inside his abdomen. It is said that the appellant defecated as many as hundred numbers of cylindrical shaped capsules in four defecation from 8.30 p.m on 06/10/03 to 6.30 a.m on 07/10/03. A further, X-ray examination of the abdomen of the appellant at 10.00 a.m on 07/10/03 revealed that there is no more foreign bodies within his abdomen. The contents of the capsules were tested using Narcotic Identification Kit and it was found to be heroin. Each of the capsules contained the same powder and therefore, the contents of all the hundred capsules were collected together, the net weight of which was found to be 408 gms. Thereafter, two samples each Crl. Appeal No.2162 of 2005 -5- weighing 5 grams were drawn and separately packed and the remaining 398 gms. of heroin was packed separately preparing mahazar in that behalf. In the mahazar as well as on the packets sealed, the appellant as also the witnesses were caused to sign. Later, the appellant was summoned before PW2 and his statement was recorded under Section 67 of the N.D.P.S Act wherein he admitted the criminal conspiracy he had with the absconding second accused for the smuggling of drug to Mali by concealment within his body. 4. The arrest of the appellant/first accused was recorded at 7.00 a.m on 08/10/03. On production before the Magistrate, the appellant was remanded to judicial custody and after investigation, the complaint was filed before court as against both the accused for offence punishable under Sections 27(c) and Section 29 of the N.D.P.S Act, 1985 as amended by Act 9 of 2001. On appearance of the Crl. Appeal No.2162 of 2005 -6- appellant before the Sessions Court consequent on committal of the case to the sessions division, charge was framed by the Sessions Judge after hearing the appellant and the prosecution; was read over and explained to him and he was questioned. Thereupon, he pleaded not guilty and consequently, a trial of the case was conducted by the court below. 5. Prosecution examined PWs.1 to 8 and got marked Exts.P1 to P16 and got identified MOs.1 and 2. On the prosecution closing their evidence, the appellant was questioned by the court below under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. According to him, he signed the papers shown to him by the officials and gave a statement in Tamil as dictated by the officials. However, he did not adduce any evidence in defence. Crl. Appeal No.2162 of 2005 -7- 6. The court below considered the case in the light of the evidence so adduced; found the appellant guilty of the offence punishable under Sections 21(c) and Section 29 of the N.D.P.S Act convicted him thereunder and sentenced him to undergo rigorous imprisonment for a term of ten years and to pay a fine of Rs.1 lakh under Section 21(c) of the Act and in default to undergo rigorous imprisonment for a further term of one year with however no separate sentence awarded under Section 29 of the Act. It was also provided that the appellant shall be entitled to right of set off of the period of imprisonment undergone by him during investigation and trial of the case. 7. When the appeal came up for final hearing, counsel for the appellant submitted that on facts, there is convincing evidence to establish the guilt in the accused and that therefore, he does not want to have the appeal Crl. Appeal No.2162 of 2005 -8- argued on merits but that the conviction entered into by the court below for offence under Section 21(c) of the N.D.P.S Act in the circumstances of the case will not be sustainable; that the quantity of contraband held by the appellant was only of small quantity and therefore, conviction could have been only under Section 21(a) of the Act or at best it could have been under Section 21(b) and not in any event, under Section 21(c) of the Act although a conviction for offence under Section 29 may hold good. 8. The contentions that are advanced by the learned counsel for the appellant, Sri.Grashious Kuriakose are that Ext.P16 is the report of the Chemical Examiner subjecting the sample forwarded to him for examination which was having a weight of 5.23 gms. along with the plastic cover used to pack the same; that the sample answered the test for heroin but that the Chemical Examiner has reported Crl. Appeal No.2162 of 2005 -9- that the laboratory is not equipped to conduct the quantitative test and if that test also is necessary the sample has to be forwarded to the Director of Central Revenue's Control Laboratory, New Delhi-12. However, the opinion forwarded by the Chemical Examiner is to the effect that the sample forwarded to him is crude heroin. Subsequently, vide Ext.P14, qualitative analysis was also obtained from the Chemical Examiner, Department of Revenue Ministry of Finance, Central Revenue's Control Laboratory, New Delhi and that shows that the percentage of diacetylmorphine (heroin) in the sample forwarded is only 2.2% and the percentage of morphine in the sample is only 3.22%. 9. According to the learned counsel for the appellant, though the charge is for transporting heroin only and not for morphine, the total quantity of both together will come only to 5.42%; that though there is no proof Crl. Appeal No.2162 of 2005 -10- that the samples subjected to examination were representative samples, even adopting the same standard in the balance quantity as well the total quantity of heroin and morphine together in the contents in the hundred capsules that was attempted to be transported by the appellant concealing within his body in the form of capsules will come only to 22.11 gms. only and though that is above the small quantity prescribed, it does not reach anywhere near the commercial quantity and therefore, the conviction could have been only for offence under Section 21(b) of the N.D.P.S Act and not for offence under Section 21(c) of the Act. 10. The argument advanced, no doubt, is sound and has to be accepted in the light of Exts.P14 and P16 chemical analysis report. All the same, the argument does not stand good in relation to conviction for offence under Section 29 of the N.D.P.S Act and that has Crl. Appeal No.2162 of 2005 -11- certainly to be sustained. 11. In the result, while confirming the conviction of the appellant for offence under Section 29 of the N.D.P.S Act, I modify and alter the conviction of the appellant to one under Section 21(b) of the N.D.P.S Act, 1985 as amended by Act 9 of 2001 from conviction entered into by the court below for offence under Section 21(c) of the Act. Consequently, I modify and alter the sentence awarded to the appellant by the court below and sentence him to undergo rigorous imprisonment for a term of four years and to pay a fine of Rs.25,000/- and in default to undergo rigorous imprisonment for a further term of three months for offence under Section 21(b) of the N.D.P.S Act, 1985 as amended by Act 9 of 2001. No separate sentence is awarded for offence under Section 29 of the Act. The appeal is disposed of as above. Crl. Appeal No.2162 of 2005 -12- 12. Communicate the result portion of the judgment to the appellant through the Superintendent of Central Prison, Thiru- vananthapuram forthwith. In case the appellant has already undergone the sentence as modified by this Court, the Superintendent of Central Prison, Thiruvananthapuram shall take immediate steps to release him provided his detention is not required to be had in connection with any other case. K.P.BALACHANDRAN, JUDGE kns/-