IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 29TH MAY 2008 / 8TH JYAISHTA 1930 CRL.A.No. 968 of 2002(B) ----------------------------------- SC.131/2001 of SPL.COURT (NDPS ACT CASES), VADAKARA .................... APPELLANTS/ ACCUSED NOS. 1 AND 2 ----------------------------------------------------- 1. MOIDU S/O. YOOSAF, PANCHIKODAN PARAYINMEL HOUSE, K.P.R. NAGAR, SIVAPURAM AMSOM, MALOOR DESOM, THALASSERY TALUK. 2. JAIMON @ THOMAS S/O. KURUVILA THADATHIL HOUSE, VILAMANA AMSOM, PERUMKARI DESOM, THALASSERY TALUK. BY ADV. SRI.P.VIJAYA BHANU SRI.SUNNY MATHEW. RESPONDENT /COMPLAINANT ------------------------------------------- THE CIRCLE INSPECTOR OF EXCISE MATTANNUR, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.JAI GEORGE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.968 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of May 2008 JUDGMENT Appellants who have been found guilty under Section 20(b) (ii)B of the Narcotic Drugs and Psychotropic Substances Act 1985 have preferred this appeal challenging the order of conviction and sentence passed against them. Appellants have been sentenced to undergo rigorous imprisonment for 4 years each and to pay a fine of Rs.20,000/- each. In default of payment of fine, appellants have been directed to suffer simple imprisonment for 2 years each. 2. The prosecution case in a nutshell was that on December 19, 1996 at about 9.30 PM while Pw.1 and his patrol party made a search of the jeep which was being driven by appellant No.2, it was found that appellant No.1(accused No.1), who was sitting in the front seat of the jeep, had 2.1 k.g of ganja in his possession. Pw.1 completed the other statutory formalities and arrested the two accused after taking sample from the contraband. 3. The prosecution examined Pws.1 to Pws.6 on its side. Crl.A.No.968 OF 2002 :: 2 :: Exts.P1 to P12 and M.Os. 1 to 4 were also marked in the case. Dw.1 and 2 were examined on the side of the defence. The court below, after a careful evaluation of the oral and documentary evidence, found that the prosecution had succeeded in proving the charge against the appellants. Accordingly they were convicted and sentenced as mentioned earlier. 4. Pw.1 who was working as Excise Inspector in the Excise Enforcement and Anti Narcotic Special Squad, Kannur deposed before the court that he was on patrol duty along with his party on Iritty-Koottupuzha road. While he was conducting vehicle inspection at a place called Kallumudi on the above road, a jeep bearing registration No.PY-01 H 6671 came that way. When Pw.1 signalled to stop the vehicle, it went ahead and stopped about 25 meters away. Accused No.2 (appellant No.2) was driving the vehicle. Accused No.1 was sitting in the front seat of the jeep. On a search made by Pw.1 a plastic sack was found placed between the legs of accused No.1. On examination of the contents of the bag, 2.1 kgs. of ganja was recovered. It is not necessary to refer to the other mandatory formalities that were be complied with in the Crl.A.No.968 OF 2002 :: 3 :: matter of seizure, recovery etc. since learned counsel for the appellant has not addressed any arguments on those questions. Suffice it to say that Pw.1 effected recovery of the contraband. Two samples containing 25 grams each of the contraband were also taken in the presence of witnesses. Ext.P1 seizure mahazar , Ext.P3 search list, Ext.P4 crime and occurrence report etc. were prepared. The two accused were arrested; yet again after completing the other formalities. 5. PW2, the independent witness deposed before the court that he had seen PW1 completing the formalities of the recovery, sampling, etc. PW2 also stated that he had signed in Ext.P1 mahazar after reading the same. He did not remember the weight of the contraband article, though he admitted that the Excise Inspector had told him the weight. PW2 specifically stated before the court that he had put his signature in Ext.P1 as a witness to seizure/recovery of ganja. It is true that PW2 was declared hostile by the prosecution, since he stated that he did not see who was driving the vehicle and who else was travelling in it. 6. PW3, the Excise Guard, who accompanied PW1, Crl.A.No.968 OF 2002 :: 4 :: corroborated the version given by PW1. PW4, who was working as Excise Guard in the Excise Range Office at Mattannur, deposed that PW1 had entrusted the contraband, samples and other contemporaneous documents and the accused in the case late in the night on December 19, 1996. He entrusted all the articles and the two accused to the Excise Range Inspector on the next day. PW5 was working as the Excise Range Inspector, Mattannur during the relevant period. He took custody of the accused and the contraband and other contemporaneous documents from PW4 on the next day of the alleged arrest and seizure. He stated that he registered crime No.1/1996 and prepared Ext.P9, occurrence report. He sent the sample for chemical analysis. He prepared Ext.P10, forwarding note for sending the sample for analysis. He also prepared Ext.P11, the thondy list. PW6 completed the investigation in the case. Ext.P12 report of the analyst was marked through this witness. I have been taken through the depositions of the witnesses. I have also perused the documents produced by the prosecution. 7. Learned counsel for the appellants submits that PWs 1 Crl.A.No.968 OF 2002 :: 5 :: and 3 ought not to have been believed by the trial court. It is contended by the learned counsel that the specific case of the accused was that one Shaji who was a co-passenger of accused No.1 had run away when the excise party walked upto the jeep. According to the learned counsel, the specific suggestion was Shaji had thrown the bag containing the contraband into the nearby river and run away. It is further contended on behalf of the accused that the Excise party had recovered the contraband from the river and foisted the case on the two accused. 8. In support of the above case, defence had examined DW1 who stated that he had come in the jeep along with the two accused and Shaji. According to DW1, he had gone away from the scene immediately after the jeep was stopped by PW1 as signalled by the patrol party. He did not see whatever happened after stoppage of the jeep. But significantly, DW1 did not have a case that Shaji had thrown the contraband in the nearby river and run away from the scene. 9. Placing heavy reliance on the evidence of PW1, it is contended by the learned counsel that the attempt of the Crl.A.No.968 OF 2002 :: 6 :: prosecution was to cover up its failure to apprehend the real accused. It is also pointed out that absence of the scene mahazar will cut at the root of the prosecution case. If only a scene mahazar had been prepared, it would have come out in evidence that there was a river near the alleged scene of occurrence. 10. I am unable to comprehend the rationale of the above contention. Even assuming there was a river as alleged by the defence, I am unable to understand how that river would have played any role in the prosecution case. PW1 in the course of his cross examination deposed that there was no river on the southern side of the road. Both PWs1 and 3 had vehemently denied the suggestion that two persons had run out of the jeep as soon as it stopped. The specific case of the prosecution is that the two accused were in the jeep and the contraband was recovered from between the legs of accused No.1. I do not find any reason to disbelieve the oral testimonies of PW1 and 2, especially in the absence of any material on record to discredit their versions. 11. It is further contended by the learned counsel that Ext.P4 crime and occurrence report was produced before the Crl.A.No.968 OF 2002 :: 7 :: court only after the trial had commenced. But PW5 had stated that he had prepared crime and occurrence report on December 21, 1996 and produced it before the court. The said report was marked as Ext.P9 in the case. But when PW1 was in the box, he stated that he had himself prepared a crime and occurrence report and that it was still available in the file. It was thereafter he had produced the said report. Thus, apparently PW5 had prepared yet another crime and occurrence report and produced it before the court. The explanation of PW5 was satisfactory enough and I do not find any reason to accept the contention on behalf of the appellants that the crime report was cooked up later. In this context, it may be noticed that all other contemporaneous documents and particularly the balance of the contraband, two samples, etc. were produced before the court on the next day of the alleged occurrence itself. The omission on the part of PW5 to produce Ext.P4 report must have been clearly an oversight. (No other contentions were raised on behalf of the appellants.) 12. It is contended on behalf of accused No.2, (the driver of the jeep) that there was no evidence on record to show that he had Crl.A.No.968 OF 2002 :: 8 :: conscious knowledge about some contraband being carried in the jeep. It is pointed out by Miss. Maya, that accused No.1 had got into the jeep as a passenger along with several others. Accused No.2 had no idea that accused No.1 was carrying the contraband with him. 13. But in this context, the case of the prosecution has to be considered. It is the specific case of the prosecution that the jeep in question belonged to the father of accused No.1. It was not being used as a public service vehicle. There was no question of any passengers being carried in the jeep for hire as contended by the two accused. There is some force in the above contention. In the absence of any rebutted evidence, the case of the prosecution has to be accepted. It is true that there is no direct evidence to show that accused No.2 was conscious of the fact that some contraband was being carried in his jeep, but in the totality of the evidence on record I am persuaded to accept the prosecution case. 14. Having considered the entire materials available on record, I do not find any reason to disbelieve the prosecution case. The court below in my view was justified in holding the appellants Crl.A.No.968 OF 2002 :: 9 :: guilty. But I find considerable force in the submissions made on behalf of the appellants to show some leniency in the matter of sentence especially since the quantity is comparatively very less and also since there is no allegation that the appellants had been involved in any other similar offences. In my view, the sentence imposed on the appellants is too harsh as the quantity involved was only 2.1 kgs of ganja. Therefore, I am satisfied that interest of justice will be met, if the substantive sentence of four years' rigorous imprisonment is modified and reduced to rigorous imprisonment of three months each. However, the appellant shall pay the fine imposed on them. Default sentence imposed by the trial court is sustained. Appeal is allowed to the above extent. (A.K.BASHEER, JUDGE) jes Crl.A.No.968 OF 2002 :: 10 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.968 OF 2002 - - - - - - - - - - - - - - - - - - - - - - JUDGMENT Dated 29th May 2008