IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 13TH JANUARY 2009 / 23RD POUSHA 1930 CRL.A.No. 1669 of 2007 ------------------------ SC.585/2006 of II ADDL.SESSIONS COURT, ERNAKULAM CR. 2/2006 OF EXCISE RANGE OFFICE, PERUMBAVOOR .................... APPELLANT: ACCUSED --------------------------------- PALANI CHAMY, C.NO. 6156 CENTRAL PRISON, VIYOOR, THRISSUR BY ADV. K.P.HARISH [STATE BRIEF] RESPONDENT: COMPLAINANT ------------------------------------------- STATE OF KERALA REPRESENTED BY EXCISE INSPECTOR PERUMBAVOOR. CR.NO.2/06 BY PUBLIC PROSECUTOR SRI. AMJAD ALI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. K. MOHANAN, J. ~~~~~~~~~~~~~~~~~~~~~~~~ Crl. Appeal No. 1669 OF 2007 ~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 13th day of January, 2009 J U D G M E N T This appeal is preferred by the sole accused in S.C. No. 585 of 2006 on the file of the Session Court, Ernakulam, challenging the judgment of the said court by which the appellant accused is convicted under Section 20 (b) (ii) (B) of Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced. 2. The prosecution case is that the accused was found in possession of 3.2 Kg of ganja and a sum of Rs.170/-. On the basis of the said allegation, crime No. 2/2006 of Perumbavoor Excise Range Office for the above said offence was registered. After completing the investigation on the basis of the registration of the above said crime a final report was filed before the trial court. A formal charge was framed which read over and explained to the accused to which he pleaded not guilty. Consequently PW1 to PW5 were examined from the side of the prosecution and marked Ext.P1 to Ext.P9. M.O.1 to M.O.10 were also identified Crl. Appeal No. 1669 of 2007 : 2 : and marked. Finally, the court below found that accused is guilty of the charge levelled against him and accordingly he is sentenced to undergo Rigorous Imprisonment for two years and to pay a fine of Rs.5,000/- (Rupees Five thousand only) under Section 20 (b) (ii) (B) of the NDPS Act. It is the above conviction and sentence challenged in this appeal by preferring the same from the jail. 3. I have heard Mr. K.P. Harish the learned counsel appointed as state brief and also the learned Public Prosecutor. 4. The prosecution case mainly reveals through the detecting officer, PW1 who had deposed in terms of the prosecution case. According to him, on getting information that a person attempting to sell the illicit ganja near Anjali Tourist Home at Perumbavoor, he sent two excise guards to ascertain the veracity of the information and they reported that the said information is correct. Thus the party lead by PW1 proceeded to the Gandhi Square and found the accused with two bags in his possession. In compliance of section 50 the accused was searched. PW1 sent a written request to the Excise Circle Inspector of Kunnathunadu to witness the proposed search and Crl. Appeal No. 1669 of 2007 : 3 : Ext.P4 is the said request. Accordingly, PW3 came on the spot and in his presence of PW1 conducted the search. M.O.8 series are the two bags. First bag contained one packet and second bag contained 2 packets of ganja covered by news papers. M.O.1 series are those packets of ganja. M.O.2 series are the three Tamil news paper in which ganja was wrapped. As per Ext.P1 mahazar samples were drawn. Ext.P2 is the arrest memo and Ext.P3 is the occurrence report. PW1 has also stated about seizure of M.O.3 currency notes and M.O.4 train ticket. M.O.5 is the bag in which the train ticket was found. During the search PW1 has also seized certain tools from the bag of the accused and said tools are marked as M.O.6 series. After the seizure, PW1 produced the accused before the court. Ext.P5 is the forwarding note and Ext.P6 is the property list prepared by PW1. The further investigation was conducted by PW5. PW2 and 4 are the independent witnesses who witnessed the seizure of ganja. They admitted their signature in Ext.P1 mahazar. Though PW2 failed to identify the accused PW4 has correctly identified the accused and they deposed in terms of prosecution regarding the Crl. Appeal No. 1669 of 2007 : 4 : seizure. PW5 is the Excise Circle Inspector of Kothamangalam who called as a gazetted officer in terms of Section 50 of NDPS Act. When the accused was questioned under Section 313 of Cr.P.C. he had denied of all the incriminating circumstances put to him. The defence taken by the accused is to the effect that an unknown person had entrusted with him 2 bags which marked as M.O.8 series and he had possessed those bags without knowing its contents. The trial court correctly held that when the accused admitted the possession, it is for the accused to give an account under what ground he happened to be in the possession of same. In view of Section 54 of the NDPS Act , when the prosecution proved possession, it is for the accused to give proper account as to how he came in possession of such a quantity of the contraband article and on his failure to give said account a presumption has to be drawn that accused has committed offence under the Act. Therefore, the trial court on the basis of the admitted facts and circumstances found that accused was in possession of the seized ganja. His further story that he was possessed the same without the knowledge of its contents, as the Crl. Appeal No. 1669 of 2007 : 5 : bags were entrusted to him by some other person was not believed and accepted by the court below. Going by the materials and evidence on record I am also of the view that the appellant/accused has miserably failed to give proper explanation regarding the possession. As per the prosecution evidence it is clearly established that accused was found in possession of 3.2 Kgs. of ganja and the possession is proved beyond reasonable doubt and evidence of PW1 and other official witnesses were corroborated from the independent source namely the evidence of PW2 and PW4. Therefore, I find no reason to interfere with the findings arrived on by the court below and the conviction entered into by the trial court. Consequently the conviction is confirmed. 5. Regarding the sentence, the learned counsel appearing for the appellant submitted that a lenient view may be taken since the appellant is a coolie worker and he is the sole bread winner of his family which consists of his wife, aged mother and 3 minor children. The trial court has already taken a lenient view and instead of awarding the maximum sentence of ten years, the trial court has awarded only two years Rigorous Imprisonment Crl. Appeal No. 1669 of 2007 : 6 : and imposed only a fine of Rs.5,000/- (Rupees Five thousand only) though the penal provision enabling the court is to impose fine of Rs.1,00,000/- (Rupees One lakh only). Therefore, the substantial sentence and sentence of fine do not require any reconsideration. However, in the particular facts and circumstances involved in this case, I am of the view that default sentence can be re-fixed as three months imprisonment instead of one year as fixed by the trial court. Therefore, if the fine amount is not paid by the accused he need to undergo Rigorous Imprisonment only for a period of three months. Set off is allowed under Section 428 of Cr.P.C. 6. It is borne out from the records that based upon the above allegation the accused was taken into custody on 6.9.2006 and thereafter he is kept in custody as an under trial prisoner. The substantive sentence which is awarded by the court below and confirmed by this Court will complete by 5.9.2008 in view of the set off is allowed under Section 428 of Cr.P.C. Thereafter, he had undergone a period of about four months imprisonment. In the light of the above modification brought with respect to the default Crl. Appeal No. 1669 of 2007 : 7 : sentence and in the light of the fact that set off is allowed under Section 428 of Cr.P.C. the appellant need not be detained after 5.12.2008. Therefore, there will be a direction to release the appellant/accused forthwith if he is not required in any other case. In the result this criminal appeal is disposed confirming the conviction, but subject to the above modification with respect to the default sentence. ` (V.K. MOHANAN, JUDGE) KMD