IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 17TH JANUARY 2008 / 27TH POUSHA 1929 Crl.Rev.Pet.No. 54 of 2008() ---------------------------- CRA.16/2006 of SESSIONS COURT, KOLLAM CC.1300/2003 of JUDL.MAGISTRATE OF FIRST CLASS-III, PUNALUR .................... REVN. PETITIONER: PETITIONER/ACCUSED ------------------------------------ JOSE, AGED 45 YEARS, S/O.THOMAS LIZY BHAVAN, MANCHALLOOR, PATHANAPURAM. BY ADV. SRI.DILEEP P.PILLAI RESPONDENTS: COMPLAINANT ------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR ADV.SRI.GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17.1.08 , THE COURT ON 17/01/2008 PASSED THE FOLLOWING: R. BASANT, J. ```````````````````````````````````````````````````` Crl. R.P. No. 54 OF 2008 ```````````````````````````````````````````````````` Dated this the 17th day of January, 2008 O R D E R This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 20(b)(ii) of the NDPS Act. The petitioner now faces a sentence of rigorous imprisonment for a period of six months for the offence punishable under Section 20(b)(ii) of the NDPS Act. 2. The crux of the allegations against the petitioner is that on 23.8.03 when the police party consisting of PWs 3 to 5, on receipt of prior information that sale of ganja was taking place in the shop of the petitioner, reached the shop of the petitioner, on search of the premises, 18 small packets of ganja in a plastic cover was recovered by him. 10 gm were taken for sampling. Mahazar Ext.P1 was prepared. PWs 1 and 2 are allegedly independent witnesses who had signed in Crl.R.P.No.54/08 : 2 : the mahazar. The petitioner was arrested. 3. After completing the investigation, final report was filed and cognizance was taken by the learned Magistrate. The accused appeared before the learned Magistrate. He denied the offences alleged against him whereupon PWs 1 to 8 were examined and Exts.P1 to P5 were marked by the prosecution. 4. PWs 1 and 2, as stated earlier, are the independent attestors to Ext.P1 seizure mahazar. Both of them admitted their signatures in Ext.P1 but denied having seen the seizure. PWs 3 to 5 are the police officials who constituted the party, PW5 being the senior most officer. Ext.P1 is the seizure mahazar prepared by PW5. Ext.P2 is the search list and Ext.P3 is the search memo. Ext.P4 FIR was promptly registered. Investigation was conducted by PW7 who got the sample forwarded to PW6 who issued Ext.P5 certificate to confirm that the article seized was ganja. PW8 is a person who allegedly weighed ganja. He also Crl.R.P.No.54/08 : 3 : turned hostile to the prosecution. 5. The accused took up a defence of total denial. According to him, there was no recovery effected from his premises. No defence evidence was adduced. 6. The learned Magistrate on an anxious consideration of all the relevant inputs, came to the conclusion that the oral evidence of PWs 3 to 5 which is supported by the contents of the contemporaneous Ext.P1 seizure mahazar as also Exts.P2 to P4 can be safely accepted and that such evidence when accepted clearly reveals the complicity of the petitioner. Accordingly, the learned Magistrate proceeded to pass the impugned judgment. The learned Sessions Judge in appeal re- appreciated and evaluated the entire materials and came to the conclusion that the verdict of guilty, conviction and sentence do not warrant any interference. 7. The petitioner claims to be aggrieved by the impugned concurrent judgments. Called upon to explain the Crl.R.P.No.54/08 : 4 : nature of challenge, which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner submits that the courts below erred in accepting and acting upon the oral evidence of PWs 3, 4 and 5. In view of the hostility of PWs 1, 2 and 8 alleged independent witnesses, the courts below should not have accepted the oral evidence of PWs 3 to 5, it is contended. 8. I find absolutely no merit in these contentions. PWs 3 to 5 are police officials charged with a responsibility of detecting offences and bringing the offenders to book. They cannot be reckoned as interested witnesses whose testimony deserves to be approached with doubt, suspicion and reservation. It is to note that no case has been advanced that PWs 3 to 5 have any animus against the petitioner and are in any way interested in foisting a false case against the petitioner. The evidence of PWs 1 and 2, though hostile, gives respectability to Ext.P1 seizure mahazar, signature in which is admitted by them. The contents of the Crl.R.P.No.54/08 : 5 : contemporaneous Ext.P1 seizure mahazar supports the oral evidence of PWs 3 to 5. 9. No other contentions are raised on merits. I have gone through the impugned judgments. I am satisfied that the verdict of guilty and conviction and absolutely justified and are unexceptionable. In the absence of challenge on any specific grounds, it is not necessary for me to advert to facts in any greater detail. 10. The learned counsel for the petitioner finally prays that leniency may be shown on the question of sentence. The petitioner faces rigorous imprisonment for a period of six months under Section 20(b)(ii) of the NDPS Act. When small quantity of ganja alone is involved, the maximum sentence that can be imposed is imprisonment for six months or fine or both. The learned Magistrate has saved the petitioner of the obligation to pay any fine but has imposed the maximum sentence of imprisonment permissible under law. It is prayed that leniency may be shown on the question of sentence. The Crl.R.P.No.54/08 : 6 : petitioner has already undergone imprisonment for a period exceeding four months, it is submitted. In the facts and circumstances of this case, I find absolutely no reason to take any lenient view in the matter. The ganja was stored for sale in a shop. I am satisfied, in these circumstances, that no further leniency also deserves to be shown. 11. This Crl.R.P. is, in these circumstances, dismissed. (R.BASANT, JUDGE) aks