IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 4TH FEBRUARY 2009 / 15TH MAGHA 1930 CRL.A.No. 2222 of 2007() ------------------------ SC.558/2006 of I ADDL.SESSIONS COURT, ERNAKULAM .................... APPELLANT(S): -------------- HASSAN @ PENNATHI HASSAN, C.NO.6272, CENTRAL PRISON, VIYYUR, THRISSUR, PIN-680010. BY ADV. SRI.BABU.P.C(STATE BRIEF) RESPONDENT(S): --------------- STATE OF KERALA. PUBLIC PROSECUTOR SRI AMJAD ALI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A. No.2222 of 2007 ---------------------------------------------- Dated, 4th February, 2009. JUDGMENT Challenging the conviction and sentence imposed against the accused under section 20 (b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and as per the judgment dated 22.9.2007 in S.C.No.515/2006 on the file of the Court of First Addl.Sessions Judge, Ernakulam, the sole accused preferred this appeal. 2. The prosecution case is that on 13.4.2006 at about 4.30 p.m., the accused was found in possession of 1370 grams of ganja kept for the purpose of sale, about two metres east from the door foot step of House No. CC.V/632 of Mattancherry village and thus committed the said offence. On the basis of the said allegation, crime No.137/2007 of Mattancherry police station was registered for the offence punishable under section 20 (b)(ii) B and 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the Act'). After the investigation, the C.I. of Police, Mattancherry laid the charge and the same was taken into file as C.C.No.558/2006 which was made over to the trial court for disposal. A formal charge under CRL.A. 2222/07 -:2:- sections 20(b)(ii) B and 8(c) was framed which was read over and explained to the accused and he pleaded not guilty. Thereafter, the prosecution examined PWs 1 to 7 and produced Ext.P1 to P15 as documentary evidence and also identified and marked M.Os 1 and 2 as material objects. While the accused was examined under section 313 Cr.P.C., he denied the incriminating circumstances. From the side of the defence, DW1 was examined and marked Exts.D1 and D2 which are C.D contradictions. Finally, the court below found that the accused is guilty of the charge framed against him. Thus he is sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs. 10,000/-, in default, to undergo simple imprisonment for six months under section 20(b)(ii)(B) of the NDPS Act,1985. Set off is allowed under section 428 Cr.P.C. It is the above conviction and the sentence challenged through this jail appeal. 3. As the appellant is undergoing imprisonment pursuant to the judgment impugned, Advocate Sri Babu P.C is appointed as State Brief to prosecute the appeal for an on behalf of the appellant. Thus, I have hared the learned counsel appearing for the appellant as State Brief and also the learned Public Prosecutor Sri Amjad Ali. 4. PW5 is the detecting officer who was then working as the S.I. of police, Mattancherry. He deposed that on 13.4.2006 at about 4 p.m., when he was on patrol duty, he reached Logo junction, Mattancherry CRL.A. 2222/07 -:3:- and he got information that the accused is dealing with ganja at Seelattu Parambu south of Logo junction. Consequently, PW5 informed the matter to his immediate superior, the Circle Inspector of police, Mattancherry through Ext.P6 letter which was sent through a police Constable. PW5 further deposed that as suggested by the Circle Inspector, himself and party went to Seelattu Parambu and when they reached the said place, he found the accused on the south western side of the said place coming out of his house with a white kit in his hand and the accused was wearing lunki and shirt at that time . The Constables informed PW5 that it is the accused namely Hassan and they immediately intercepted the accused and got his identity revealed. According to PW5, on questioning the accused he understood that the accused was holding ganja in the kit and he informed the accused about his right under section 50 of the Act. PW5 deposed that the accused sought presence of a gazetted officer and, accordingly, requisition was sent to the C.I of Police, Excise as per Ext.P4 and accordingly, the Excise C.I., Kochi came to the spot at about 5.15 p.m. and he disclosed his identity to the accused. Thereafter, in the presence of the independent witnesses, namely, PWs 1 and 2 and in the presence of PW3, Excise Circle Inspector, body of PW5 was searched first and then PW5 conducted a search on the body of the accused. PW5 further deposed that on CRL.A. 2222/07 -:4:- examination of the white plastic kit which the accused was holding, he found that there was another white kit inside the the first one and on further examination of the white kit, he detected the presence of dried ganja and identified the same. Accordingly the accused was arrested at about 5.30 p.m. and the ganja got weighed by a goldsmith . Thereafter he seized the ganja as per Ext.P1 mahazar. The details of the sampling , sealing etc. were meticulously stated in Ext.P1 mahazar. M.O.1 is the dried ganja weighing 1322 grams after drawing the samples and PW5 identified the same as M.O.1. Exts.P2 and P3 proved through PW5. Ext.P2 is the specimen signatures as well as the impression of the sample seal used. Ext.P3 is the seal on the white cover. In Ext.P1 mahazar signatures of the witnesses were also obtained. He also prepared Ext.P7 arrest memo and Ext.P8 arrest intimation. According to PW5, thereafter he took the material objects, samples, accused etc. to the police station and registered Ext.P10 FIR after informing the matter to the superior officers through Ext.P9 report. When PW5 was examined in court, he identified the accused. The accused is also involved in another crime i.e. crime No.164/95 of Mattancherry police station and therefore, the Police Constables very well identified the accused even at the time of detection of the crime. Though PW5 was examined elaborately, nothing was brought to discredit his version. PWs 1 and 2 are the independent CRL.A. 2222/07 -:5:- witnesses examined. When PW1 was examined, he had deposed fully supporting the prosecution case and he had also admitted his signature in Exts.P1 and P2 etc. PW2 is another independent witness cited and examined by the prosecution to prove the seizure etc. PW2 is the goldsmith through whom weighing balance obtained by the police Constable and he was also present at the time of the seizure. He had also admitted his signature in Ext.P1 seizure and Ext.P2 label also. PW3 is the C.I. of police Excise department and he deposed that on 13.4.2006 at about 4.45 p.m “P.C” approached him with Ext.P4 request from PW5 and accordingly, he reached at the spot. He had further deposed in terms of the prosecution case. He identified M.Os 1, 2 and 3. He had also admitted his signature as an attestor of Ext.P1 mahazar as well as Exts.P2 and P3 labels. The evidence of PW3 was also intact and during his cross examination, the defence failed to elicit anything in favour of the defence. PW4 is the Village Officer who prepared Ext.P1 sketch. Investigation was conducted by the C.I. of police, Mattancherry police station who is examined as PW6. According to him, he questioned the witnesses, produced the material objects before the court as per Ext.P13 and also produced the accused . Ext.P4 forwarding note was proved through him by which the samples were sent for chemical analysis. Ext.P15 is the report of chemical analysis as per which samples were CRL.A. 2222/07 -:6:- identified as ganja. Though DW1 was examined, as defence witness, no purpose was served and his evidence was in no way helpful for the defence to disprove the prosecution case. On the basis of the above evidence, the trial court found that the accused is guilty of the offence. 5. It is contended that the prosecution has miserably failed to prove that the contraband article was found in possession of the accused. According to the appellant, the deposition of PW5 is not believable with regard to the time of the alleged seizure. Pointing out the fact that though PW5 has stated that PW3 was informed through Ext.P6 report, PW3 claimed that he received a telephone message at about 3.25 p.m. So according to the defence, the above version of PW5 cannot be believable. Except the above points, no other points are raised in support of the challenge against the conviction and sentence. 6. The contemporary documents like Exts.P1 and P6 are supporting the deposition of PW5, the officer who conducted the crime. It is the specific case of PW5 that he received information regarding the trafficking of ganja at about 4 `O' clock. He reached The Logo junction and thereafter he proceeded to the Seelattu Parambu south of logo junction where presence of the accused was detected. From that point onwards, the proceedings started in accordance with the provisions contained in the NDPS Act and as a part of the same, PW5 conveyed the CRL.A. 2222/07 -:7:- right of the accused under section 50 of the right of the accused and accordingly, the accused demanded the presence of a gazetted officer and therefore PW5 sent Ext.P4 letter and thus PW3 came at the spot at about 5.15 p.m. It is only thereafter the body search was effected and the contraband articles were seized. The above version of PW5 is fully supported by independent evidence , viz., PWs 1 and 2. Thus on going by the evidence of PW5, the detecting officer whose evidence supported and corroborated by independent evidence of PWs 1 and 2 which is more assured by the contemporary documents. Therefore I find no reason to interfere with the conviction and the finding arrived on by the court below. Accordingly, I confirm the conviction of the appellant/accused for the above offences as found by the trial court. 7. Regarding the sentence, it is submitted that a lenient view may be taken as the appellant is the sole bread winner of his family consists of his wife and two children. Going by the judgment of the trail court it appears that the trial court had already taken a lenient view and the substantial sentence imposed is only two years rigorous imprisonment and the amount of fine imposed is also only Rs.10,000/-. Considering the facts and circumstances involved in the case, I am of the view that the substantial sentence can be reduced from 2 years to 18 months and the default sentence can also be reduced as one month instead of six CRL.A. 2222/07 -:8:- months. Accordingly, the appellant/accused is sentenced to undergo rigorous imprisonment for one year and six months while affirming the fine amount as Rs.10,000/-, the default sentence is refixed as simple imprisonment for one month instead of six months. Set off is allowed. 8. From the records it appears that the appellant had already undergone imprisonment for 125 days as under-trial prisoner and the appellant is undergoing imprisonment from the date of order of sentence and thus he had already suffered imprisonment for one year and 8 months. If that be so, in the light of the revised order of sentence, the appellant had already completed the period of sentence and therefore he is entitled to get released from the jail. Therefore, there will be a direction to release the appellant/accused forthwith if he is not required in any other case. In the result, the appeal is dismissed confirming the conviction, but subject to the modification of the sentence indicated above. V.K.MOHANAN, JUDGE kvm/- CRL.A. 2222/07 -:9:- V.K.MOHANAN, J. CRL.A. No.2222/07 Judgment Dated:4.2.2009