IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 21ST JANUARY 2009 / 1ST MAGHA 1930 CRL.A.No. 1667 of 2007() ------------------------ SC.1024/2005 of I ADDL. SESSIONS COURT-I , PALAKKAD .................... APPELLANT(S): -------------- MARI, S/O. THIMMAN, C.NO. 5177, CENTRAL PRISON, KANNUR. BY ADV. K.KRISHNAKUMAR [ STATEBRIEF] RESPONDENT(S): --------------- STATE OF KERALA BY PUBLIC PROSECUTOR SRI AMJAD ALI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A. No.1667 of 2007 ---------------------------------------------- Dated, 21st January 2009. JUDGMENT The appellant is the sole accused in S.C.No.1024 of 2005 on the file of the Addl.Sessions Court-I, Palakkad. He is challenging the conviction and sentence imposed against him under section 20(b) of the Narcotic Drugs and Psychotropic Substances Act (for short, `the NDPS Act). 2. The prosecution case is that on 5.1.2005 at about 6.00 p.m., the accused was found keeping in his possession of 1.800 kiligrams of ganja in a plastic cover hung on the southern wall of the southern room of House No. VIII/223 of Padavayal Ooru, Padavayal village, owned by him and thus committed the offence punishable under sections 20(b) of the NDPS Act. After completing the investigation, final report was filed before the Sessions Court Palakkad from where the case was made over to court of Addl.Sessions Court-I, Palakkad for trial. As the accused was in custody, he was produced on production warrant. As the accused expressed his inability to engage a counsel of his own to defend the case, an Advocate was appointed by the court to defend him. Thus after hearing the prosecution as well as the defence, a formal charge was framed for the offence under section CRLA.No.1667/07 -:2:- 20(b) of the NDPS Act, which read over and explained to the accused and he denied the charge. Consequently, the prosecution adduced evidence consists of the depositions of PWs.1 to 7 and the documentary evidence such as Exts.P1 to P11. M.Os 1 and 2 were identified as material objects. There was no evidence from the side of the defence. The prosecution mainly depends upon the evidence of PW1, the then S.I. of police, Agali police station who conducted the crime. PWs 2 and 3 respectively are Probationary Sub Inspector and Police Constable attached to the very same police station who accompanied PW1 at the time of detection of the crime and seizure of the contraband article. PW1 has deposed that on 5.1.2005, he along with PWs 2 and 3 and other police constables proceeded along Thavalam - Paloor road, he got information that the accused was keeping arrack for sale. Therefore, he prepared Ext.P1 advance search memo and despatched the same to the court of the Judicial First Class Magistrate, Mannarkkad. Thereafter PW1 and party reached in the house of Mari bearing No.VIII/223. According to PW1, when they reached the house, the accused was present in front of the house. The name of the accused was verified from him and PW1 identified Mari as the accused in the court. According to PW1, in the presence of independent witnesses, the house of Mari was searched and he found a plastic bag hung on the southern wall of the house. He took CRLA.No.1667/07 -:3:- the plastic bag and examined its contents and he satisfied that it contained dried ganja. Thereafter he obtained the service of PW3 and got a balance to weigh the ganja. Thus the ganja was weighed and the same was found as 1.800 kgs of Ganja. Thereafter he prepared three samples weighing fifty grams each. He prepared Ext.P2 search list. When he was examined, he identified M.O.1 as the bulk of ganja and MO2 and MO2(a) as the remnants sent for chemical analysis. He obtained the signature of the accused, PW1 and witnesses on the labels pasted on each bag. Ext.P3 intimation sent to the Circle Inspector of Police was also marked through PW1. After the seizure, himself and party reached the police station and he registered crime No.5/2005 of Agali police Station under section 20(b) of the NDPS Act. Ext.P4 is the FIR. The accused, material objects and the records were handed over to the Circle Inspector of police. On the direction received from the Circle Inspector of police, he had produced the material objects before the court as per Ext.P5 property list. When PWs 2 and 3 were examined, they deposed in terms of PW1. PW4 is the Secretary of Puthur Grama Panchayat who issued Ext.P6 certificate and according to him, as certified in Ext.P6, the accused is residing in House No.VIII/223 which is belonging to him. PWs 5 and 6 who are two independent witnesses cited by the prosecution to prove the seizure, arrest etc., but they turned CRLA.No.1667/07 -:4:- hostile. But they admitted their signature on MO1, MO2 and MO2(a) and Ext.P2 certificate. Thus on the basis of the above evidence and materials, the trial court found that the accused is guilty of the offence charged against him. 3. As the appellant is undergoing imprisonment in pursuance of the impugned judgment and the appeal is preferred from the jail, Adv. Sri K.Krishnakumar is appointed as State Brief to prosecute the appeal. Thus, I heard Sri K. Krishnakumar, the learned counsel appearing for the appellant and Sri Amjad Ali, the learned Public Prosecutor. 4. The learned counsel appearing for the appellant submitted that the impugned order is not sustainable either in law or on facts. According to him, regarding the seizure, absolutely there is no independent evidence. Therefore, according to the learned counsel, if the evidence of official witnesses are excluded, there is no material at all to canvas a conviction against the accused. It is also argued by the learned counsel that the prosecution case is doubtful going by the materials produced by the prosecution. The learned counsel pointed out that even according to PW1, when he was conducting patrol duty, he got information regarding the sales of arrack. Therefore, on the basis of the said information, he prepared advance search memo. But the prosecution thereafter took a different allegation to the effect that the accused was found in possession CRLA.No.1667/07 -:5:- of ganja. According to the learned counsel, the above conflicting allegation would render the prosecution case under doubt. Therefore, according to the learned counsel, the accused is implicated in an NDPS case when the police party failed to find out any illicit arrack to implicate the accused to connect him with the offence under the Abkari Act. Hence, the learned counsel submitted that the prosecution miserably failed to prove its case beyond reasonable doubt and therefore, the accused is entitled to get an acquittal. 5. On the other hand, the learned Public Prosecutor submitted that the evidence of prosecution witnesses are intact, especially, Exts.P1 to P5 documents contemporaneous documents which are guaranteed the correctness of the prosecution case. It is also pointed out by the learned Public Prosecutor that the search of the house of the accused was conducted in pursuance of the information received by PW1. Though the information was to the effect that the accused was engaged in sale of arrack, which information led the raiding party to reach in the house of the accused and consequently, the contraband article is recovered. Therefore, though the information is with respect to the sale of arrack and the recovery effected is ganja, the prosecution case is not liable to be disbelieved on that ground. Thus according to the learned Public Prosecutor, no interference is warranted. CRLA.No.1667/07 -:6:- 6. I have considered the contentions raised by both the counsel for the appellant as well as the learned Public Prosecutor. I have also perused the materials and evidence on record. It is true that PW1 accompanied by PWs 2 and 3 were reached at the house of the accused in pursuance of the information received by them during the patrol duty. Pursuant to such information, PW1 prepared advance search memo which sent to the court of the Judicial First Class Magistrate, Mannarkkad. The above steps taken by PW1 itself is sufficient to assure the fact that they have already received an information and they have proceeded to the spot. But, probably due to the insufficiency and incorrect materials received by the informant, the information was to the effect that the accused is engaged in sale of illicit arrack. However, in pursuance of the information, the raiding party reached the house of the accused and consequently ganja was recovered from the possession of the accused. In this juncture, it is relevant to note that if actually, the information was with respect to the contraband article (ganja), naturally PW1 ought to have taken the weighing machine etc. for taking the correct weight of the contraband article. But in the present case, the information was with respect to the arrack and hence, without taking such precaution, PW1 and party straight away proceeded to the spot. According to the prosecution, the above fact further render assurance regarding the correctness of the CRLA.No.1667/07 -:7:- case of the prosecution. 7. The learned counsel for the appellant submitted that the accused is falsely implicated in the above crime at the instance of the police. Though such contention is taken, there is no material to substantiate the same. It is also argued by the learned counsel that the contraband article is not recovered from the person of the accused or from his physical possession and therefore, no offence will lie against the accused. It is brought on record that the house in question has only one door on the eastern side of the building and the contraband article is recovered from the southern wall of the room of the house. As per Ext.P6 certificate and the evidence of PW4, it is also proved that the house is belonged to the accused and he is residing there. If that be so, it is for the accused to give explanation as to how this contraband article happened to be seen in the house of the accused. There is no such explanation. It is in the above factual background and evidence, the trial court found that the accused is guilty of the offence charged against him. On a consideration of the evidence and materials on record, I find no infirmity or defect with respect to the prosecution case. Though PWs 1 to 3 were cross examined extensively, nothing was brought to discredit their version. So, the substantial evidence are supported by contemporaneous documentary evidence such as Ext.P1 advance search memo, Ext.P2 search list, CRLA.No.1667/07 -:8:- Ext.P3 intimation to the C.I. of Police who is the immediate superior to PW1, Ext.P4 FIR and Ext.P5 property list. It is also relevant to note that these documents and the material objects were produced before the court without any delay. It is the case where the prosecution has tried to adduce independent evidence by examining PWs 5 and 6 with respect to the occurrence and seizure of the contraband article. But when PW5 and 6 were examined, they turned hostile. But at the same time, they admitted their signature in Ext.P2 search list and also on the labels contained in M.O1, MO2 and MO2(a). Thus it can be seen that the above witnesses were turned hostile to the prosecution only to help the accused. 8. Thus on a consideration of the entire facts and circumstances and on appreciation of the evidence, I am of the view that the finding arrived on by the court below regarding the guilt of the accused is absolutely correct and I have to approve the same. Consequently, the conviction is confirmed. 9. Regarding the sentence, the learned counsel submitted that a lenient view may be taken as the accused has already undergone more than 4 years of imprisonment and the accused is now aged 61 years. I have considered the above submission. According to the penal provision contained in the NDPS Act, the duration of imprisonment and quantity of fine amount depend upon the quantity of the contraband article involved CRLA.No.1667/07 -:9:- in each case. If the Ganja involved is small quantity, i.e 1 k.g., maximum sentence of imprisonment can be only 6 months. If the quantity is between commercial and small quantity, maximum sentence is 10 years and the fine amount is Rs.one lakh. In the present case, though the quantity involved is a little more than small quantity, the excess quantity is only 800 grams. If the quantity is 1 k.g. only, the sentence would have been at the most 6 months. Considering the above position and the fact that the accused is now at the age of 61 years and he has already undergone more than 4 years imprisonment, I am of the view that certain modifications can be effected with respect to the sentence. Accordingly, the accused/appellant is sentenced to undergo 3 years imprisonment under Section 20(b) (ii)(B) of the NDPS Act instead of 5 years. The fine amount fixed by the court below needs no interference. But the default sentence can be reduced from 18 months to 12 months. Set off is allowed under section 428 Cr.P.C. 10. The records show that the accused is under custody right from his arrest on 5.1.2005, the date of occurrence and thus , now he has completed more than 4 years of imprisonment. As the substantial sentence is refixed as 3 years and the default sentence is refixed as 12 months, and especially as set off is allowed under section 428 Cr.P.C., I am of the view that the appellant/accused need not be detained further as CRLA.No.1667/07 -:10:- he has already completed the revised period of sentence. Therefore, there will be a direction to release the appellant/accused forthwith if he is not required in any other case. The above appeal is accordingly disposed of confirming the conviction but subject to the above modification with respect to the sentence. V.K.MOHANAN, JUDGE kvm/- CRLA.No.1667/07 -:11:- V.K.MOHANAN, J. No.... Judgment/Order Dated: