Jallu Rahman Sain vs State Of Kerala
2021 Latest Caselaw 4836 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

       THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

 WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942

                      CRL.A.No.550 OF 2016

 AGAINST THE ORDER/JUDGMENT IN SC 682/2013 DATED 12-03-2015
   OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - VIII,
                         ERNAKULAM

  CRIME NO.40/2013 OF Ernakulam E.E & A.N.S.S., Ernakulam


APPELLANT/S:

               JALLU RAHMAN SAIN,
               S/O MAFEJ SAIN, AGED 30 YEARS,
               HARIKRISHNAPURGHAT, HEGAL BADIYA, GOPALPUR,
               NADIYA DISTRICT, WEST BENGAL

               BY ADVS.
               SRI.ANIL K.MOHAMMED
               SRI.V.S.MANSOOR

RESPONDENT/S:

               STATE OF KERALA,
               REPRESENTED BY THE PUBLIC PROSECUTOR,
               HIGH COURT OF KERALA.



OTHER PRESENT:

               SMT. M. K. PUSHPALATHA, SR.PP

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
10.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 CRL.A.No.550 of 2016


                             -2-



                          JUDGMENT

The appellant was convicted and

sentenced by the court below under Section

20(b)(ii)(B) of the Narcotic Drugs and

Psychotropic Substances Act (for short, 'the

NDPS Act').

2. The prosecution allegation is

that on 13.10.2013 at 3.30 p.m., the

appellant was found in possession of 2 kg of

ganja in a bag possessed by him at a place

near to Millupady Junction, Aluva, in

contravention of the provisions of the NDPS

Act.

3. The offence was detected by PW1.

He also arrested the appellant and CRL.A.No.550 of 2016

registered the crime. PW7 conducted the

investigation and after completing the

investigation, he filed the final report

before the court.

4. In the trial, PW1 to PW7 were

examined and Exts.P1 to P18 were marked for

the prosecution, besides identifying MO1 to

MO10. No evidence was adduced for the

defence.

5. Heard.

6. The learned counsel for the

appellant has argued that since the

appellant had already undergone the sentence

awarded by the court below, the appellant is

not pressing this appeal for hearing on

merits. However, this being a criminal CRL.A.No.550 of 2016

appeal filed against the conviction and

sentence, this Court can dispose of the

appeal only on merits.

7. PW1 was the Circle Inspector of

Excise Special Squad, Ernakulam during the

relevant period. On getting information,

PW1 proceeded to the place of occurrence

with party on 13.03.2013 after recording the

information and informing the matter to his

superior officer. PW1 and party reached the

place of occurrence at about 1.55 p.m. Then

they saw the accused standing at the place

of occurrence. The accused was intercepted.

It was found that the accused could speak

only in Hindi. PW5, who accompanied PW1

could speak in Hindi. So he informed the CRL.A.No.550 of 2016

accused about his right to be searched in

presence of the Gazetted Officer or

Magistrate. Thereafter, PW6, who was the

Circle Inspector of Excise, Aluva, was

summoned to the place of occurrence. PW6

conducted the body search of PW1 and

thereafter, PW1 conducted the body search of

the accused in the presence of PW6 and

others. No contraband article was recovered

from the accused in the body search.

However, an amount of Rs.1040/- was

recovered from him. The bag carried by the

accused contained 2 kg of ganja in the

search. The ganja was rapped in plastic

covers. PW1 arrested the appellant. He also

prepared Ext.P7 search list. He had also CRL.A.No.550 of 2016

taken two samples, each sample contained

25 gm each, from the contraband.

Thereafter, he sealed the samples and also

the remaining contraband. He also prepared

Ext.P8 mahazar. Thereafter, he proceeded to

the Excise Office along with the appellant,

the contraband articles and the contemporary

records. Thereafter, he registered Ext.P9

crime and occurrence report.

8. PW5 was the Officer who

accompanied PW1 to the place of occurrence.

He also supported the evidence of PW1 in all

material aspects including the detection of

the offence, the arrest of the appellant,

the seizure of the contraband, the sampling

and the sealing of the samples. CRL.A.No.550 of 2016

9. PW2 is an independent witness. He

also supported the evidence of PW1 and PW5

in material aspects. PW6 also stated about

the body search and the seizure of the

contraband. PW6 also stated about the

recovery of an amount of Rs.1040/- from the

pocket of the appellant in tune with the

evidence of PW1 and PW5. Even though PW3

was also examined as an independent witness,

he did not support the prosecution case.

10. PW7 was the Investigating

Officer, who conducted the investigation and

filed the final report before the court.

The evidence of PW1, PW2, PW5 and PW6 would

prove the arrest of the appellant, the

seizure of the contraband, the sampling and CRL.A.No.550 of 2016

the sealing of the samples.

11. PW1 produced the contraband and

the samples before the court. He also sent

one of the samples to the laboratory

through the court along with Ext.P12

forwarding note containing the specimen seal

of PW1.

12. Having gone through the evidence

of PW1, PW2, PW5 and PW6, I do not find any

reason to disbelieve their evidence with

regard to the arrest of the appellant, the

seizure of the contraband, the sampling and

the sealing of the samples. There was also

compliance with the provisions of Sections

50 and 57 of the NDPS Act. Ext.P18 is the

report of the Chemical Examiner, which would CRL.A.No.550 of 2016

show that the sample analysed in the laboratory

was identified as ganja (Cannabis Sativa).

13. Having gone through the relevant

inputs, I am satisfied that the prosecution

could succeed in establishing that the

appellant was found in possession of 2 kg of

ganja on 13.10.2013 at about 3.30 p.m. as

alleged by the prosecution. In the said

circumstances, the court below was justified

in convicting the appellant under Section

20(b)(ii)(B) of the NDPS Act. The court below

had awarded a sentence of rigorous

imprisonment for five years and a fine

of Rs.25,000/- with a default clause for

simple imprisonment for one year under

Section 20(b)(ii)(B) of the NDPS Act. CRL.A.No.550 of 2016

Having gone through the relevant inputs, I

am satisfied that the sentence awarded by

the court below also does not warrant any

interference by this Court.

In the result, this appeal stands

dismissed.

Sd/-

B. SUDHEENDRA KUMAR, JUDGE STK