IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 11TH OCTOBER 2010 / 19TH ASWINA 1932 CRL.A.No. 443 of 2003() ----------------------- SC.42/2000 of II ADDL.SESSIONS COURT, ERNAKULAM .................... APPELLANT(S): ACCUSED --------------------- VARKEY, AGED 58 YEARS, S/O.THOMMAN, MADIPARAYIL VEEDU, THEKKUMALA BHAGATHU, KADALIKADU KARA, MANJALLOOR VILLAGE. BY ADV. SRI.J.MATHAPPAN SMT.M.N.UMARANI SRI.AGINOV MATHAPPAN SRI.K.J.JOSEMON SRI.N.RENJITH RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, CIRCLE INSPECTOR OF POLICE, KALLOORKAD, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. K.S. SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11.10.2010, THE COURT ON 11/10/2010 DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. Appeal No. 443 of 2003 ----------------------------------------------- Dated 11th October, 2010. JUDGMENT This appeal arises from the conviction and sentence passed against the appellant alleging offence under Section 20(b)(ii)(A) of the NDPS Act to undergo rigorous imprisonment for two months. Set off was also allowed. 2. According to prosecution, PW6, the Sub Inspector, got reliable information on 24.7.1999 that the accused was selling ganja from his pan shop situated on the road side. This information was reduced into writing and the matter was reported to PW1, Circle Inspector. Thereafter, PW6 went to the place of occurrence and body search was conducted in the presence of PW1, who also came to the spot. Thereafter, as pointed out by the accused, a tin containing 39 small packets was seized from the shop of the accused. Nothing was found in body search. The 39 packets contained ganja and it weighed 60 grams in total. Samples weighing 25 grams each were taken and packed and the balance of ganja was packed and seized and it is MO1. Samples are [Crl.A.No.443/03] 2 MO3 series. The accused was arrested from the spot and a case registered, A mahazar was prepared in the presence of PWs 2 and 3. 3. The prosecution examined PWs 1 to 7 and marked Ext.P1 to P13 and MOs1 to 3 series. While questioned under Section 313 Cr.P.C., the accused stated that he is innocent of the allegations made. According to him, he was asked to shift the shop and he was abused for not shifting. He was taken to the police station at about 9 a.m. Balance was brought in an autorickshaw and weighing was done. Two witnesses were brought on the next day by about 10 a.m. and he was produced before court and enlarged on bail. 4. Learned Addl. Sessions Judge analysed the evidence in detail and found that the prosecution established its case and that the accused was found in possession of 60 grams of ganja in violation of the provisions of the NDPS Act, which is small quantity and he was convicted and sentenced. 5. PWs1 and 6 are the official witnesses. PW1 is the Excise Circle Inspector and PW6 is the Sub Inspector of Police. Both of them gave evidence corroborating each other in all material particulars regarding the seizure of the article [Crl.A.No.443/03] 3 from the shop of accused. They deposed that on the date of occurrence, they had gone to the shop of the accused. As pointed out by the accused, a tin containing 39 packs of ganja was seized from the shop. They also stated that nothing was seized from the body of the accused even though search was conducted by PW1, a gazatted officer, as requested by the accused. PW1, who is the Excise Circle Inspector, came to the spot at the request of PW6, the Sub Inspector, for effecting the body search under Section 50 of the NDPS Act. 6. The evidence of PW1 and PW6 is corroborated by the evidence of PW2, an independent witness. PW2 deposed almost in tune with the evidence of PWs. 1 and 6. He admitted his signature in the mahazar and also he spoke about the seizure of ganja from the shop of the accused. PW3 also stated that he had signed Ext.P3 scene mahazar. But, he did not say about the seizure of the ganja on 24.7.1999. 7. The trial court analysed the evidence of these witnesses and came to the finding that ganja was seized from the shop of the accused, as alleged by the prosecution. [Crl.A.No.443/03] 4 On going thorough the evidence, I do not find any reason to come to a different finding. Nothing is brought out from the evidence of PWs 1 and 2 to show that they were perjuring against the accused. No motive is suggested to either of the officials who belong to different departments why they were concocting a case against the accused. PW2 was also not questioned about any motive to implicate the accused. Therefore, the court below rightly came to a finding that ganja was seized from the shop of the accused. 8. Learned counsel for appellant strongly contended that it is not sufficient if the witnesses depose that ganja was seized from the shop of the accused, but there must be convincing evidence regarding the possession of shop by the accused. But, no documents are produced to establish that the accused was in possession of the shop from which ganja was seized. Even in the mahazar Ext.P3, nothing is stated about the ownership or possession of the shop by the accused. It is also submitted that none of the neighbouring witnesses were examined to speak about the seizure or the possession of shop by the accused. 9. Learned Public Prosecutor submitted that all the [Crl.A.No.443/03] 5 occurrence witnesses spoke about the possession of the shop by the accused. PWs1, 6, and 2 deposed that the contraband articles were seized from the shop of the accused. In fact, DW1, who was examined on behalf of accused also, sated that the shop belonged to the accused and that the police had come there and taken the accused to the police station. In the above circumstances, it cannot be said that the accused was not in possession of the shop from which ganja was seized, it is submitted. 10. On hearing both sides and on going through the evidence of Pws.1, 2 and 6 it is evident that PW6 had gone to the shop of the accused on getting information that ganja was being sold in the shop. All these witnesses have categorically stated that the search was conducted in the shop of the accused and that he was present there. PW1 stated that ganja was pointed out by the accused himself and the seizure was effected. There is absolutely no contradiction in the evidence adduced by Pws.1 and 2. The accused himself has a case that the police went to his shop and took him away. 11. To prove the above facts, DW1 was aslo examined. [Crl.A.No.443/03] 6 In such circumstances, this is not a case where the court must insist for production of any documentary evidence to establish the possession. It is only in cases where the oral evidence is shaky regarding the ownership and possession of a shop, in the light of the challenge that the court may insist for proof by documentary evidence. On the peculiar facts and circumstances of the case, the absence of production of documentary evidence to establish possession of the shop by the accused has not adversely affected the prosecution case or the veracity of the evidence given by PWs 1, 2 and 6. 12. On a reading of the evidence as a whole, I do not find any material discrepancy or infirmity in the evidence of any of the witnesses to hold that the incident did not occur as alleged. The seizure of ganja (60 grams) from the shop of the accused is established by the prosecution and he had no explanation to offer for the possession. Therefore, the conviction is only sustainable. 13. Learned counsel for the appellant submitted that the accused is aged 68 years and that his son is handicapped and hence, leniency may be extended to him in the question of sentence. Learned Public Prosecutor submitted that [Crl.A.No.443/03] 7 considering the antecedents of the accused, no leniency may be shown in the question of sentence. It was pointed out that in the course of examination of DW1, specific questions were put whether accused in this case was not involved in ganja case during the year 1989 and 1991 and whether he was sentenced for 3 years and 8 months. It appears that the specific suggestions were made and DW1 could not deny the same. 14. Learned counsel for appellant submitted that the accused was later acquitted. But, nothing is produced to show that he was acquitted. The sentence imposed is only for two months rigorous imprisonment and I do not think any more leniency is required. I am not inclined to reduce the sentence in a case involving contraband article under the NDPS Act. Sentence imposed is only proportionate to the gravity of offence committed by the accused. This appeal is dismissed. Sd/- K. HEMA, JUDGE. Krs. [Crl.A.No.443/03] 8 K.HEMA, J. ---------------------------------------- Crl. Appeal No. 443 of 2003 ---------------------------------------- Dated 11th October, 2010. JUDGMENT