IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 25TH JANUARY 2008 / 5TH MAGHA 1929 CRL.A.No.1230 of 2007(C) ------------------------------ SC.11/2007 of II ADDL. SESSIONS COURT, PALAKKAD .................... APPELLANT: ACCUSED -------------------------- THOMAS, S/O.ANTONY JOSEPH KOOVAKKAD MATTAM VEEDU THEKKUMKARA, KANJIKULAM NOW AT C.N.4404, CENTRAL PRISON, KANNUR BY ADV. P.V.VIJAYAKUMAR[STATE BRIEF] RESPONDENT: ----------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR PALAKKAD, WALAYAR POLICE STATION, CRIME NO.32 OF 2000 BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.1230 of 2007 ------------------------------------------------ Dated this the 25th day of January, 2008 JUDGMENT Convict No.4404, Thomas of Central Prison, Kannur has preferred this appeal against the conviction and sentence passed against him by the Additional Sessions Judge, Palakkad vide judgment dt.31/01/07 in S.C. 11/07 for offence under Section 20(b)(ii)(B) of the N.D.P.S Act, 1985. On conviction he is sentenced by the court below 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 term of one year. 2. In this appeal preferred from Jail Advocate Sri.P.V.Vijayakumar was appointed on State Brief to argue the appeal on behalf of the appellant as he had not engaged a lawyer of his choice to argue the appeal. Crl. Appeal No.1230 of 2007 -2- 3. The quantity of ganja involved in the commission of the offence is 10 kgs. which is below commercial quantity and above small quantity. The only argument that is advanced before me by the learned counsel for the appellant is that the appellant was one who was suffering from mental ailment and while the case was pending in the court below he had been referred for treatment and he was subjected thereafter to examination by medical board which certified that he is fit to stand trial and it is thereafter that the case, trial in which was almost over and stage of questioning the appellant under Section 313 Cr.P.C had reached, was continued further; that it is doubtful whether the appellant was fit to stand trial while the evidence on the side of the prosecution was adduced as the mental illness of the appellant came to light to the court below only when he was questioned Crl. Appeal No.1230 of 2007 -3- under Section 313 Cr.P.C and till then the question as to whether the appellant was mentally ill or is fit to stand trial was not considered at all; that however, for the last four and a half years the accused is in custody either as an under trial prisoner or as a convict and therefore, his only prayer is to have the sentence reduced rather than probing into the details of the correctness of the prosecution case as according to him, the question as to whether the appellant was fit to stand trial also is a question that may crop up for consideration in that event. 4. As rightly urged by the counsel for the appellant, I am of the view that considering the entire circumstances of the case, it is not a fit case where a further probe is to be made and that in any event a probe into the question as to whether the appellant was mentally sound to withstand Crl. Appeal No.1230 of 2007 -4- trial while the prosecution witnesses were being examined is not feasible at this stage. It is felt advisible to confirm the conviction and to reduce the sentence awarded to the appellant as submitted by the counsel for the appellant in the circumstances of this case. 5. In the result, I confirm the conviction of the appellant under Section 20 (b)(ii)(B) of the N.D.P.S Act, 1985, but all the same, reduce the substantive term of imprisonment awarded to him thereunder to three years maintaining however, the sentence of imposition of fine as also the default sentence. 6. Forward a copy of this judgment to the appellant through the Superintendent of Central Prison, Kannur. Also address the Superintendent of Central Prison, Kannur to release the appellant forthwith if his detention is not required to be had in Crl. Appeal No.1230 of 2007 -5- connection with any other case as he has already undergone imprisonment for four years taking into account also the period of detention he has undergone as an under trial prisoner which period is allowed to be set off under Section 428 of the Cr.P.C. K.P.BALACHANDRAN, JUDGE kns/-