IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 18TH JANUARY 2008 / 28TH POUSHA 1929 CRL.A.No.1150 of 2007 (C) ------------------------------- SC.418/2006 of II ADDL. SESSIONS COURT, PALAKKAD .................... APPELLANT: PETITIONER ----------------------------- MALLAN S/O.KONAN, CONVICT NO.4561 CENTRAL JAIL, KANNUR BY ADV. K.K.RAJEEV [STATE BRIEF] RESPONDENT/RESPONDENT: ---------------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.THOMAS JOHN AMBOOKAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.1150 of 2007 ------------------------------------------------ Dated this the 18th day of January, 2008 JUDGMENT Convict No.4561, Mallan is the appellant in this appeal preferred from Central Prison, Kannur. He was convicted for offence under Sections 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 as amended by Act 9 of 2001 (hereinafter referred to as 'N.D.P.S Act') and sentenced thereunder to undergo rigorous imprisonment for a term of six years and to pay a fine of Rs.50,000/- and in default to undergo imprisonment for a further term of two years vide judgment of the Sessions Judge, Palakkad in S.C.418/06. 2. The prosecution case is that at about 9.30 a.m. on 14/12/05, the appellant was found in possession of 4.500 kilograms of dry ganja in a big shopper carried by him at Keerippara - 1967 Government Teak Plantation and thereby Crl. Appeal No.1150 of 2007 -2- he is detected to have committed the offence punishable under Section 8(c) and 20(b) of the N.D.P.S Act. It was also alleged that on the same day and at the same time he committed the offence of trespassing into the forest owned by the Government and thereby committed offences under Section 27(1)(e)(iv) of the Kerala Forest Act as well. 3. On production of the appellant before the Sessions Court pursuant to issuance of production warrant a lawyer was engaged on State Brief on his request to conduct the case on his behalf as he had not engaged a lawyer of his choice. Thereafter, the Sessions Judge heard preliminary arguments; framed charge against the appellant under Section 8(c) read with Section 20(b) of the N.D.P.S Act and under Section 27(1)(e)(iv) of the Kerala Forest Act; read over and explained it to him and he was questioned. Thereupon, he pleaded Crl. Appeal No.1150 of 2007 -3- not guilty and consequently, a trial of the case was conducted. 4. Prosecution examined PWs.1 and 2 and got marked Exts.P1 to P10 and got identified MOs.1 to MO2(b). On the prosecution closing their evidence the appellant was questioned under Section 313 Cr.P.C by the court below. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. According to him, he was being apprehended from bus and was being taken to a room and kept locked up and he is not aware of anything else. However, he did not adduce any evidence in defence. 5. The court below considered the case in the light of the evidence adduced as aforesaid; found the appellant not guilty of the offence punishable under Section 27(1)(e) (iv) of the Kerala Forest Act and acquitted Crl. Appeal No.1150 of 2007 -4- him of the said offence, but found him guilty of the offence under Section 20(b)(ii)(B) read with Section 8(c) of the N.D.P.S Act convicted him thereunder; heard him on the question of sentence and sentenced him as already stated. Hence, this appeal from jail by the aggrieved appellant. 6. As the appellant was not able to engage a lawyer of his choice, Advocate Sri.K.K.Rajeev was appointed on State Brief to argue the appeal on behalf of the appellant. Arguments of the counsel on State Brief and the Public Prosecutor are heard. 7. The arguments advanced before me by the learned counsel for the appellant are that there is non-compliance with the procedure prescribed under Section 42 of the Act that Section 57 of the Act is not complied with and further that in the matter of direction in which the detecting party was proceeding and Crl. Appeal No.1150 of 2007 -5- the direction in which the accused was coming there is discrepancy between the evidence tendered by PWs.1 and 2 and similarly, as regards taking of sample and the balance ganja also there is discrepancy between the testimonies of PWs.1 and 2 who were in the detecting team and that would suggest that actual seizure had not been taken place but that the case was being foisted against the appellant by the forest officials; and that the appellant is hence, entitled to an acquittal. 8. Section 42 of the Act deals with power of the officials for entry, search and seizure and arrest without warrant or authorisation and that has no application to the instant case where the appellant was only being intercepted and seizure of the contraband that was being carried by him was being effected. Section 57 has been held by the Apex Court, is Crl. Appeal No.1150 of 2007 -6- only directory and not mandatory. However, according to PW2, he has furnished the full report of arrest and seizure to his superior officials. It is however, not necessary that the prosecution should cause production of the reports so furnished to the superior officials to prove that such a report has been furnished to the superior officer. Thus, there is no merit in the contentions advanced; that Sections 42 and 57 of the Act are violated. 9. PW1 has stated that himself and the patrol party was proceeding from North to South. When he was asked as to from which direction was the accused coming, he stated that he is unable to say. No further question was asked as regards his knowledge of the directions and consequently, it can only be taken that he is not one who is capable of mentioning the directions when asked. On the other hand, PW2 has stated in cross Crl. Appeal No.1150 of 2007 -7- examination that the accused was coming from West to East and the patrol party was proceeding from East to West. This means that the accused was coming just in the opposite direction in which the patrolling party was proceeding. No such question which would be intelligible to PW1/a Reserve Watcher in the Forest Station had been asked. Probably, had he been asked as to whether the accused was coming in the opposite direction or whether the patrolling party was chasing him from behind he would have given an answer which would have corroborated with the testimony of PW2. The inability of PW1 to mention the directions cannot be taken advantage of by the appellant. 10. As regards the packing of the material objects, PW1 has stated that he was the one who weighed the ganja; took the sample; packed them and sealed them. He has Crl. Appeal No.1150 of 2007 -8- stated that the balance ganja after taking the samples was covered in plastic and above that it was covered with white cotton cloth and that was further tied with white thread and sealed and Deputy Ranger prepared the mahazar. He has also stated that while going to the forest, common balance, cloth, seal etc. had been taken with them. He further deposed that he was doing things as directed by the Deputy Ranger and in his presence. He has also emphatically denied the suggestion that actually no seizure of ganja was effected from the appellant. The inconsistency in the statement of PW2 stated by the counsel for the appellant is that PW2 has deposed that 50 gms. was taken as sample from 4.500 kgs. of ganja; that the sample was covered with newspaper and it was further covered with white cloth and tied with white thread and thereafter, label was affixed thereon on white paper. Nothing Crl. Appeal No.1150 of 2007 -9- was asked to PW2 as regards the manner of packing of the balance ganja of which alone PW1 had given evidence and to PW1 nothing had been asked as regards the manner in which the sample had been packed. Thus, there is no contradiction at all between the testimony of PWs.1 and 2 as regards the procedure adopted in the manner of packing the ganja and the samples taken therefrom. 11. It is further contended before me by the learned counsel for the appellant that the appellant is an illiterate tribal and it cannot be assumed that he has signed in Ext.P3 agreeing to have his body searched otherwise than in the presence of a gazetted officer or a Magistrate as PW2 has stated in his deposition. PW2 was asked in cross examination as to whether the accused knows to read and write to which he has said that he is not aware but however, he stated that if one does Crl. Appeal No.1150 of 2007 -10- not know how to read and write, the finger print will be taken but in the instant case, the appellant knew how to sign and it was therefore, that in Ext.P3 his signature was taken. However, PW2 is not asked as to whether the contents of Ext.P3 had been read over to the appellant but the question was only as to whether it is recorded that Ext.P3 was read over to the appellant. It is worthy to note in this context that the appellant when questioned under Section 313 Cr.P.C has not stated that he is illiterate or that he does not know how to read and write. His signature in 313 statement is also seen to be exactly similar to his signature taken in Ext.P3. If at all he did not know to affix signature he would not have signed in the 313 statement but his thumb impression would have been taken. Thus, unless there is evidence to show that the appellant did not know how to read and Crl. Appeal No.1150 of 2007 -11- write and affix signature, it is futile to contend that there is no evidence that Ext.P3 was signed by him without knowing the contents thereof or that he had not been asked as to whether the search of his body has to be conducted in the presence of a gazetted officer or of a Magistrate. 12. It was further argued by the counsel for the appellant that the material objects were got back from the Magistrate's Court and were produced before the Sessions Court by the Forest officials and that there is no evidence that it had not been tampered with. PW2 has stated that on receiving back of the material objects from the Magistrate's Court till its production before the Sessions Court, he himself was having safe custody thereof. No question has been put in cross examination suggesting that any tampering has taken place during the time when the material objects were Crl. Appeal No.1150 of 2007 -12- in the custody of PW2 in between his taking back possession thereof from the Magistrate's Court and producing it before the Sessions Court. 13. Yet another contention advanced is that for non-examination of CW5/the investigating officer, prejudice has been caused to the appellant. CW5 is the investigating officer and he was not examined as a witness as he was no more by the time the case came up for trial. There is no statement as contradiction or omission brought out in examination of PWs.1 and 2 and consequently, it cannot be said that any prejudice as such has been caused to the appellant by the non-examination of the investigating officer. It is further so when PWs.1 and 2 are the persons in the detecting team and they have offered themselves for cross examination. Crl. Appeal No.1150 of 2007 -13- 14. Finally, it is argued by the counsel for the appellant that the prosecution case is that the accused was intercepted in the vested forest and that no notification is produced. It is worthy to note that the offence for which the appellant is convicted is offence under the N.D.P.S Act and not under the Forest Act and hence, the production of notification which is necessary in cases of commission of forest offences is not applicable at all to the instant case. 15. No other argument was advanced before me by the learned counsel for the appellant assailing the conviction of the appellant for offence under Section 20(b)(ii)(B) of the N.D.P.S Act. In view of the discussions I have made above, I am not of the view that the offence alleged against the appellant does not stand proved. The court below was rightly coming to the conclusion that the offence Crl. Appeal No.1150 of 2007 -14- under Section 20(b)(ii)(B) of the N.D.P.S Act, 1985 as amended by Act 9 of 2001 is established on evidence. 16. Counsel for the appellant advanced a further argument that the sentence awarded to the appellant is excessive and that a lesser sentence should have been awarded to the appellant. The offence being under Section 20 (b)(ii)(B) of the N.D.P.S Act which provides imprisonment for a term which may extend to ten years and with fine which may extend to Rs.1 lakh much leniency could not have been extended to the appellant especially when the quantity of ganja in his possession was 4.5 kgs. However, considering the entire aspects of the case, I am of the view that some concession as regards the substantive term of imprisonment can be granted to the appellant. 17. In the result, while confirming the conviction of the appellant under Section 20 Crl. Appeal No.1150 of 2007 -15- (b)(ii)(B) of the N.D.P.S Act, 1985 as amended by Act 9 of 2001, I reduce the substantive term of rigorous imprisonment awarded to the appellant by two years and reduce the sentence in default of payment of fine to one year. In all other respects, I confirm the sentence. Thus, the sentence imposed on the appellant as modified above will be to undergo rigorous imprisonment for a term of four years and to pay a fine of Rs.50,000/- and in default to undergo imprisonment for a further term of one year. 18. This appeal is thus allowed in part. Communicate a copy of this judgment to the appellant through the Superintendent of Central Prison, Kannur forthwith. K.P.BALACHANDRAN, JUDGE kns/-