IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 27TH JANUARY 2009 / 7TH MAGHA 1930 Crl.Rev.Pet.No. 13 of 2009() ---------------------------- CRA.837/2006 of ADDL. SESSIONS COURT (ADHOC)-II, TRIVANDRUM CC.544/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, TRIVANDRUM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------------------------------------- KAMALAMMA, D/O. RETNAMMA, ATTUVILUMBIL VEEDU T.C. 61/9, NERA ALTHARAMUKKU, MUTTATHARA, KAMALESHWARAM WARD, THIRUVANANTHAPURAM BY ADV. SRI.SUMAN CHAKRAVARTHY RESPONDENT(S): RESPONDENT/COMPLAINANT ----------------------------------------------------- STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.R.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.13 OF 2009 =========================== Dated this the 27th day of January,2009 ORDER Revision petitioner is the accused in C.C.544/2002 on the file of Judicial First Class Magistrate Court II, Thiruvananthapuram and the appellant in Crl.A.837/2006 on the file of Additional Sessions Judge, Thiruvananthapuram. Prosecution case was that on 3.11.2001 at about 2 p.m when PW1 the Sub Inspector of Police, Poonthura Police Station along with police party while on patrol duty, found the revision petitioner selling 55 gms and 5 mg of Ganja enclosed in 19 small packets and kept in the purse from the courtyard of her house situated near Altharamukku, Muttathara, and she thereby committed an offence under section 20(b)(ii)A of NDPS Act. Petitioner pleaded not guilty. Prosecution examined nine CRRP 211/2009 2 witnesses and marked five exhibits and identified M01 purse. Revision petitioner did not adduce any evidence. Learned Magistrate on the evidence found the petitioner guilty and convicted and sentenced her for the offence under section 20(b)(ii)A of NDPS Act and sentenced her to rigorous imprisonment for three months. She was given set off under section 428 of Code of Criminal Procedure for the period she was in custody from 4.11.2001 to 3.12.2001. Though revision petitioner challenged the conviction, in Crl.A.837 of 2006, learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for the revision petitioner and learned Public Prosecutor were heard. 3. The argument of the learned counsel is that courts below should not have believed the evidence CRRP 211/2009 3 of PW7 and on the evidence it should have been found there is violation of the mandatory provisions 50 of NDPS Act and therefore the conviction is not sustainable. Learned counsel also argued that petitioner is aged 70 years and she had been in custody for more than one month and in such circumstance leniency may be shown. Learned Public Prosecutor on instructions submitted that revision petitioner is involved in Crime 171/2004 for a similar offence which was committed on 23.92004 and as the revision petitioner is absconding and a non-bailable warrant is pending. 4. On hearing the learned counsel and going through the judgments of the courts below, I find no reason to interfere with the conviction. PW3 the Police Constable had accompanied PW1 the Sub Inspector along with PW5, another Police Constable. Evidence of PW1 was corroborated by the evidence of PW3 and PW5. Though Pws. 2 and 4 the independent witnesses turned hostile the learned Magistrate and CRRP 211/2009 4 learned Sessions Judge on proper appreciation of evidence of Pws.1, 3 and 5 found their evidence credible and reliable and their version is also corroborated by Ext.P2 the seizure mahazar a contemporaneous record. Though it was contended that there is violation of the mandatory provisions of Section 50 of NDPS Act, learned Magistrate and learned Sessions Judge found that PW7 Gazetted Officer was present at the time of search and seizure and therefore there is no violation of the provisions of Section 50. Evidence conclusively establish that revision petitioner was possessing 55 gms and 5 mg of ganja enclosed in 19 small packets which establish that it was intended for sale. In such circumstance, conviction of the revision petitioner for the offence under section 20(b)(ii) A of NDPS Act is perfectly legal. 5. Then the only question is regarding the sentence. Though revision petitioner was possessing small quantity, as provided in the NDPS CRRP 211/2009 5 Act, it is clear that she was possessing it for the purpose of sale as it was enclosed in 19 small packets. Revision petitioner was also involved in similar offence of this nature and is facing trial. In such circumstance, I do not find that revision petitioner is entitled to any leniency. The sentence provided for an offence under section 20(b)(ii)A is imprisonment which may extent to six months or fine which may extent to 10,000/- or both. Considering the condition of the revision petitioner learned Magistrate did not award any fine. The sentence of rigorous imprisonment for three months awarded is not excessive, in the nature of the offence. Revision is therefore dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006