IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 CRL.A.No. 281 of 2009() ----------------------- SC.267/2008 of I ADDL. SESSIONS COURT, PALAKKAD .................... APPELLANT(S): APPELLANT: ------------------------------------------- MUHAMMED BHASHEER, C.NO.6773, CENTRAL JAIL, KANNUR BY ADV.MR.V.B.PREMACHANDRAN (STATE BRIEF) RESPONDENT(S): RESPONDENT: ------------------------------------------------- STATE OF KERALA THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 281 OF 2009 = = = = = = = = = = = = = = = Dated this the 2nd day of June, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence in S.C.267/08 passed by the Addl. Sessions Judge-I, Palakkad. The accused was found guilty for the offence u/s 20 (b)(ii)(B) of the N.D.P.S.Act and was convicted and sentenced to undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs.25,000/- and in default of fine to undergo rigorous imprisonment for a period of six months and set off was allowed. It is against that decision the accused who is in jail has preferred this appeal. 2. After numbering the appeal a State Brief has been appointed to argue the case on behalf of the appellant. From the memorandum of appeal the points that are canvassed are; (1) that there was no proper search and arrest (2) how 50 gms. were weighed is not properly explained and (3) the evidence tendered by the official witnesses are interested and it cannot be accepted. Crl.A. 281 OF 2009 -2- 3. It is the case of the prosecution that PW5 and his party had found the accused on the old road originating from Thanavu junction and leading to railway station at Olavakode at 4.30 p.m. on 17.2.2008. On search and seizure after arrest it was found that he was carrying ganja in MO3 and MO4. PW1 is the person who had accompanied PW5 who had detected and arrested the accused. PW1 had deposed that the ganja was weighed by PW2. He had also spoken about the other casual details. MOs.1 and 2 are the bags containing balance of ganja. MO3 is the bag and MO4 is the plastic carry bag which contained the ganja. 4. PW5 is the person who had detected, arrested and proceeded and he had deposed about the presence of the accused near the culvert on the relevant date and he had MO3 bag on his shoulder and MO4 plastic carry bag in his right hand. On interrogation it was submitted the accused was travelling to Mangalapuram from Vijayawada, and on suspicion he was checked and the ganja was found out. Thereafter he was informed about his right to be searched in front of a gazetted officer for which he did not raise any request and so Crl.A. 281 OF 2009 -3- in the presence of the witnesses further proceedings were done and PW2 a neighboring shop owner came with weighing balance and weights and weighed the ganja. MO3 bag contained 5 kg. of ganja. The plastic carry bag contained 2 kg of ganja. It is deposed by PW5 that he took 50 gm. of ganja from him as sample in three packets, i.e from MO3 and marked it as I/S1, I/S2, I/S3 and from MO4 plastic bag as II/S1, II/S2 and II/S3. The balance was packed and sealed. He had also put his signature in the presence of the accused and that of the witnesses were also done on the sample packets and seizure mahazar was prepared. The accused was taken into custody and was produced before the Magistrate on 18.2.2008 and then on the direction of that Court before the Sessions Court on 19.2.2009. 5. PW2 is the person who had weighed the ganja and he had deposed in that line. He had spoken about the weighing of ganja of 5 kg. and 2 kg. and also of 50 gms. which is spoken to by PW5. PW3 is a taxi driver and he had spoken about PW2's arrival with the balance and weighing of the ganja. The packets which were seized were sent for analysis Crl.A. 281 OF 2009 -4- and it was revealed from Ext.P10 that the materials contained in the packet covered by No.I/S1 and II/S1 were identified to be of ganja, i.e., cannabis Sativa. So materials available and produced before Court had proved the following namely that the accused was found in suspicious circumstances on the old road leading to the railway station at Olavakode and that PW5 and party on questioning came to know about the possession of ganja and thereafter arrested him and informed him about his right to get tested before a gazetted officer but he declined and thereafter from the two packets namely MO3 and MO4 ganja was found at 5 kg and 2 kg and that sample was taken and it was weighed by PW2 and witnessed by PW3. The solitary suspicion that is attempted to be created is that PW2 gave evidence in the chief-examination that he had weighed the ganja including taking of sample of 50 gms. each but a question was put to him in the cross-examination regarding the weights which he had taken for weighing. But the answers do not contain the description of 50 gms. weight. Just because it is omitted to be stated one cannot jump to the conclusion that it had not happened at all. No question was put to him Crl.A. 281 OF 2009 -5- that how 50 gms. were weighed especially in the back drop of the categorical assertion in the chief-examination that he had weighed 50 gms. of ganja, inscribed in the packets and sealed it. PW5 and PW1 also had submitted about the sampling. Therefore, just because there is an omission, it would not lead to the conclusion that all things done by the prosecuting agency is not acceptable whereas the answer given by PW2 in the cross-examination that he had weighed 50 gm. is not challenged in cross-examination. Therefore it will not in any way defeat the case of the prosecution. Similarly as discussed by me earlier the prosecution had successfully established the proper legal procedure adopted and also in conducting the search, seizure and arrest and also established particular material that was seized is ganja. Therefore from these discussions I hold that the finding of guilt is only proper and it does not call or any interference. 6. So far as the sentence is concerned quantity of ganja possessed by the accused is 7 kg. In the present day atmosphere by supplying ganja to the youngsters will amount to destruction of generations and it is not a matter that has to Crl.A. 281 OF 2009 -6- be lightly weighed. So considering the quantity of ganja and the fact that this person was coming from a far of place to do this business it has to be held that there is social danger with these types of persons. Therefore sentence also does not call for any interference. In the result, I confirm the conviction and sentence passed by the Sessions Judge and thereby this Crl.Appeal is dismissed. M.N. KRISHNAN, JUDGE. ul/- Crl.A. 281 OF 2009 -7- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 281 OF 2009 = = = = = = = = = = = J U D G M E N T 2nd June, 2009