Kaja Hussain vs State Of Kerala
2021 Latest Caselaw 20379 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
      THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
   FRIDAY, THE 1ST DAY OF OCTOBER 2021 / 9TH ASWINA, 1943
                       CRL.A NO. 6 OF 2020
   AGAINST THE JUDGMENT DATED 12.12.2019 IN SC 7/2018 OF
      ADDITIONAL SESSIONS JUDGE-II,PALAKKAD, PALAKKAD


APPELLANT/ACCUSED:

         KAJA HUSSAIN,
         AGED 42 YEARS
         W/O.WAHAB, MILMA ROAD, KALLEPPULLY, PALAKKAD.
         BY ADV NIREESH MATHEW


RESPONDENT/COMPLAINANT:

         STATE OF KERALA,
         REPRESENTED BY THE PUBLIC PROSECUTOR,
         HIGH COURT OF KERALA, ERNAKULAM,
         KOCHI - 682 031.

         SMT REKHA S -SR PP


     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
27.09.2021,     THE   COURT   ON   01.10.2021   DELIVERED   THE
FOLLOWING:
 Crl.A.No.06/2020
                                            2




                       R.NARAYANA PISHARADI, J
                       **********************
                              Crl.A.No.6 of 2020
                      -------------------------------------
                   Dated this the 1st day of October, 2021
                   -------------------------------------------


                               JUDGMENT

The appellant is the sole accused in the case S.C.No.7/2018

on the file of the Additional Sessions Court-II, Palakkad.

2. The appellant stands convicted and sentenced for

committing an offence punishable under Section 20(b)(ii)(C) of

the Narcotic Drugs and Psychotropic Substances Act, 1985 (for

short 'the Act').

3. The prosecution case, in short, is as follows: On

23.10.2017, the Circle Inspector of Police (PW2), Ottappalam

was conducting patrolling duty with police party. At about 16.15

hours, when he reached the place Erakottiri, he saw the accused

coming by riding the scooter bearing registration number

KL-52E-0164. A sack was seen placed on the platform between Crl.A.No.06/2020

the handle and the seat of the scooter. PW2 intercepted the

scooter and questioned the accused with regard to the contents

of the sack. The accused answered that the sack contained cow

dung powder. On suspicion, PW2 got the sack opened by the

accused in the presence of witnesses. The sack contained nine

brown colour paper packets. PW2 got the packets also opened by

the accused. The packets contained ganja. PW2 arrested the

accused at 16.30 hours. He conducted search of the body of the

accused after complying with necessary formalities. No

contraband substance was found on searching the body of the

accused. PW2 put the entire ganja in a plastic sack and weighed

it by using an electronic weighing machine.It had a weight of

20.190 kilograms. PW2 took three samples from the ganja, each

sample weighing 25 grams and packed and sealed the sample

packets. He prepared Ext.P1 mahazar and seized all the articles.

He returned to the Ottappalam police station and registered

Ext.P6 F.I.R.

Crl.A.No.06/2020

4. The investigation of the case was conducted by PW13,

who was the Circle Inspector of Pattambi. After completing the

investigation, he filed final report against the accused for the

offence punishable under Section 20(b)(ii)(C) of the Act.

5. The trial court framed charge against the accused for the

offence punishable under Section 20(b)(ii)(C) of the Act. The

appellant/accused pleaded not guilty and he claimed to be tried.

6. The prosecution examined the witnesses PW1 to PW13

and marked Exts.P1 to P23 documents and MO1 to MO5 material

objects. No oral evidence was adduced by the accused but

Exts.D1 to D3 were marked on his side.

7. The trial court found the accused guilty of the offence

punishable under Section 20(b)(ii)(C) of the Act and convicted

him thereunder and sentenced him to undergo rigorous

imprisonment for a period of ten years and to pay a fine of

Rs.1,00,000/- and in default of payment of fine, to undergo

rigorous imprisonment for a period of one year. Conviction

entered against and the sentence imposed on him by the trial Crl.A.No.06/2020

court are challenged in this appeal.

8. Heard learned counsel for the appellant and the learned

Public Prosecutor and perused the records.

9. The prosecution has examined thirteen witnesses. PW1 is

an autorickshaw driver who had witnessed seizure of ganja from

the accused. PW2 is the Circle Inspector who detected the

offence. PW3 is the Junior Sub Inspector of Ottapalam police

station who had brought the weighing machine and the seal of

S.H.O to the spot of the occurrence in compliance with the

direction given by PW2. PW4 is only an attestor to the scene

mahazar. PW5 is the owner of the shop from where the police

had obtained the electronic weighing machine. PW6 is the

photographer who had taken photographs of the sampling

process made before the Magistrate. PW7 is a civil police officer

who attested the mahazar prepared by the investigating officer

for seizing the documents found in the scooter. PW8 is the

registered owner of the scooter. PW9 is the person to whom PW8

had entrusted the scooter for selling and who sold the vehicle to Crl.A.No.06/2020

the accused. PW10 is a civil police officer who had attested the

mahazar prepared by the investigating officer for seizing the

extract of the general diary for the date 23.10.2017. PW11 is the

civil police officer who had attested the mahazar prepared by the

investigating officer for seizing the duty book of PW2. PW12 is a

civil police officer who was in the patrolling party led by PW2.

PW13 is the Circle Inspector who conducted the investigation of

the case and filed final report against the accused.

10. PW2 Circle Inspector has given evidence in detail

narrating the occurrence. His evidence, with regard to the seizure

of the ganja from the scooter driven by the accused, is

corroborated by the evidence of PW1, the independent witness

and also by the testimony of PW12. The recitals in Ext.P1

mahazar, the contemporaneous document prepared by PW2 at

the spot of the occurrence, also corroborate his testimony. There

is no striking improbability or material contradiction or

discrepancy in the evidence of PW1, PW2 and PW12 regarding

the seizure of ganja from the scooter driven by the accused. Crl.A.No.06/2020

11. There is no whisper of an allegation that PW2 had any

motive to falsely implicate the accused/appellant in such a

serious crime. There is also no allegation that PW1 has given

false evidence against the accused with any ulterior motive.

There is nothing to show that the police officers have falsely

implicated the appellant with a view to settle any personal score

with him. In such circumstances, there is no sufficient ground to

disbelieve the evidence of PW1, PW2 and PW12 regarding the

seizure of ganja from the possession of the appellant.

12. Though PW2 had taken samples at the spot of the

occurrence, the balance quantity of ganja and the samples had

been produced before the Judicial First Class Magistrate-I,

Ottapalam on the next day of the occurrence. Learned Magistrate

certified the inventory of the materials produced before him.

Ext.P10 proceedings of the Magistrate shows that representative

samples of the ganja were again taken in his presence. Ext.P22 is

the report of chemical analysis received in respect of the

samples sent for analysis. Ext.P22 report shows that the material Crl.A.No.06/2020

sent for analysis was ganja. Ext.P22 report shows that, when the

samples reached the laboratory for analysis, the seals on the

sample packets were intact and that they tallied with the sample

seal provided in the forwarding note. Therefore, it can be safely

concluded that the very same substance seized from the

possession of the accused was produced before the Magistrate

and the samples taken from the very same substance were forwarded

to the laboratory and tested there and that Ext.P22 is the result of the

chemical examination done in respect of those samples.

13. Learned counsel for the appellant has raised only three

contentions at the time of hearing the appeal. They are : (1) The

investigation of the case was conducted and the final report was

filed by an officer who had no authority to do so. Therefore,

cognizance of the offence taken by the court and the trial

conducted are vitiated. (2) The provision contained in Section

50(1) of the Act was not properly complied with and it has

caused prejudice to the accused. (3) There are discrepancies in

the weight of the ganja recorded in the documents and there is Crl.A.No.06/2020

every chance that the quantity of ganja seized from the

possession of the accused was less than the commercial quantity.

Plea of Illegality in Investigation

14. PW2, who detected the offence was the Circle

Inspector of Ottappalam. The offence was detected by him

within the area of his jurisdiction. PW13, who conducted the

investigation of the case was the Circle Inspector of Pattambi.

The offence was committed or detected not within the area of his

jurisdiction. However, as per Ext.P18 order dated 24.10.2017,

the Deputy Superintendent of Police, Shoranur had authorised

PW13 to investigate the case. The Circle Inspectors of

Ottappalam and Pattambi were under the jurisdiction of the

Deputy Superintendent of Police, Shoranur.

15. Learned counsel for the appellant contended that PW13

was an officer who had no jurisdiction over the place at which the

seizure of ganja was effected and therefore, he was not

competent to conduct the investigation of the case and to file

final report before the court. Learned counsel relied upon the Crl.A.No.06/2020

decision of this Court in Ashkar v. State of Kerala (2020 SCC

OnLine Ker 11770 : MANU/KE/1794/2020) in support of this

contention.

16. In Ashkar (supra), the occurrence had taken place

within the territorial limits of Aluva Excise Circle. The

investigation of the case was conducted by the Excise Circle

Inspector of Ernakulam. The Deputy Excise Commissioner,

Ernakulam had authorised the Excise Circle Inspector of

Ernakulam to conduct the investigation of the case and also to

file final report before the court. A contention was raised before

this Court that the Excise Circle Inspector of Ernakulam had no

authority to conduct the investigation of the case and to file

complaint before the court. As per G.O.(MS) No.168/92/TD dated

20.10.1992 published in the Kerala Gazette Extraordinary dated

20.10.1992, the Government of Kerala had authorised all officers

of and above the rank of Excise Inspectors of the Excise

Department to file complaints in respect of offences under the

Act before the special courts within the area of their respective Crl.A.No.06/2020

jurisdiction under clause (d) of sub-section (1) of Section 36A of

the Act. This notification reads as follows:

"S.R.O.No.1356/92. -- Under clause (d) of sub- section (1) of Section 36A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985), the Government of Kerala hereby authorise all officers of and above the rank of Excise Inspectors of the Excise Department and all officers of and above the rank of Sub Inspectors of the Police Department to file complaints in respect of offences under the Act before the Special Courts within the area of their respective jurisdiction".

This Court found that the above notification cannot be

understood to mean that all officers of and above the rank of

Excise Inspectors of the Excise Department who have jurisdiction

over the entire area within the limits of a Special Court have got

power or authority to file complaint in respect of an offence

under the Act before such court and that the power to file

complaint invested as per the above notification was on all

officers of and above the rank of Excise Inspectors of the Excise Crl.A.No.06/2020

Department in respect of offences under the Act committed

within the area of their respective jurisdiction. This Court held

that the expression "their respective jurisdiction" relates to the

excise officers and not to the special courts and it meant that in

respect of offences under the Act committed within the area of

his jurisdiction only, an excise officer has got power to file a

complaint under the Act.

17. The decision in Ashkar (supra) does not come to the

rescue of the accused in the present case. Section 36A(1)(d) of

the Act states that, notwithstanding anything contained in the

Code of Criminal Procedure, 1973, a Special Court may, upon

perusal of police report of the facts constituting an offence under

the Act or upon a complaint made by an officer of the Central

Government or a State Government authorised in this behalf,

take cognizance of that offence without the accused being

committed to it for trial. This provision makes it clear that a

Special Court may take cognizance of the offence on a police

report or on a complaint made by an officer of the Central Crl.A.No.06/2020

Government or State Government authorised by the said

Government to file the complaint. The provision does not

mandate that when a police report is filed before the Special

Court, the officer who files it shall be a person authorised by the

Central Government or the State Government. The condition

regarding authorisation of officers by the Government is

applicable only to complaints filed before the Special Court and

not to police reports. The notification referred to above deals only

with filing of complaints before the Special Court. The notification

is silent with regard to police reports. Ashkar was a case in

which complaint was filed by an excise officer who had no

authority to file it as he was not an officer authorised by the

Government, as per the notification above, to file a complaint

before the Special Court. In the present case, cognizance of the

offence was taken on the basis of police report and not on the

basis of any complaint. The decision in Ashkar is not applicable

to the present case.

Crl.A.No.06/2020

18. Learned counsel for the appellant contended that the

Deputy Superintendent of Police had no authority to empower

PW13, Circle Inspector of another area, to conduct the

investigation of the case.

19. Learned counsel for the appellant has not brought to

the notice of this Court any provision in the Act which even

impliedly prohibits a superior police officer from authorising a

police officer subordinate to him to conduct the investigation into

an offence which was committed within the area of jurisdiction of

the superior police officer. The contention raised by the learned

counsel would have carried weight if the crime was committed

outside the area of jurisdiction of the superior police officer or if

the officer authorised by him was an officer not under his control.

That is not the situation here.

20. The investigation of the case conducted by PW13

cannot be found to be illegal or defective as he had been

authorised by the Deputy Superintendent of Police, Shornur, a

superior police officer, to conduct the investigation. Even Crl.A.No.06/2020

assuming that, the investigation of the case was conducted by an

officer who had no authority to do so, it does not vitiate the trial

of the case or conviction of the accused by the court.

21. Vinod Kumar Garg v. State (AIR 2020 SC 1797)

was a case under the Prevention of Corruption Act in which the

conviction by the trial court for an offence under that Act was

challenged. One of the grounds raised in challenging the

conviction was that the officer who investigated the case was not

an officer of the rank of Deputy Superintendent of Police, who is

empowered to do so under Section 17 of that Act, but the

investigation was conducted by a police officer junior in rank. The

Supreme Court held that the defect in the investigation will not

vitiate the trial or conviction by the court. The Supreme Court

has held thus:

"A defect or irregularity in investigation however serious, would have no direct bearing on the competence or procedure relating to cognizance or trial. Where the cognizance of the case has already been taken and the case has proceeded to termination, the invalidity of the Crl.A.No.06/2020

precedent investigation does not vitiate the result, unless a miscarriage of justice has been caused thereby."

22. In the present case, learned counsel for the petitioner

has not pointed out the prejudice, if any, caused to the accused

by conducting of the investigation of the case by PW13 Circle

Inspector. There did not occur any miscarriage of justice by the

investigation conducted by that officer. On the other hand, if the

investigation had been conducted by PW2 Circle Inspector

himself, who detected the offence, the accused would have then

got a contention that prejudice was caused to him on account of

the fact that the detecting officer and the investigating officer

was the same person.

23. Ashkar (supra) did not deal with the illegality of

investigation conducted by a police officer. In Ashkar (supra),

cognizance of the offence taken by the court was found to be bad

in law for the reason that it was taken on the basis of a complaint

filed by an officer not authorised by the Government as provided

under Section 36A(1)(d) of the Act.

Crl.A.No.06/2020

Non-compliance with Section 50(1) of the Act

24. The evidence of PW2 Circle Inspector and the recitals

in Ext.P1 mahazar would show that, before conducting the search

of the body of the accused, the accused was made aware of his

right to be searched in the presence of a Magistrate or a gazetted

officer. PW2 had made the accused aware of his right by telling

him that he had the right to get searched in the presence of a

gazetted officer or an Executive Magistrate. PW2 had also given

Ext.P4 notice to the accused making him aware of that right.

25. Learned counsel for the appellant contended that PW2

did not make the accused aware that he had the right to get his

body searched in the presence of a Judicial Magistrate. PW2 had

made the accused aware that he had right to get the body

searched in the presence of only an Executive Magistrate. It is,

therefore, contended that there was no proper compliance with

Section 50(1) of the Act.

26. Section 50 of the Act prescribes the conditions under

which personal search of a person is required to be conducted. Crl.A.No.06/2020

Section 50(1) of the Act provides that, when any authorised

officer is about to search any person, he shall, if such person so

requires, take such person without unnecessary delay to the

nearest Gazetted Officer of any of the departments mentioned in

Section 42 or to the nearest Magistrate.

27. It would be imperative on the part of the empowered

officer to apprise the person intended to be searched of his right

to be searched before a gazetted officer or a Magistrate. In so far

as the obligation of the authorised officer under sub-section (1)

of Section 50 of the Act is concerned, it is mandatory and

requires a strict compliance. Failure to comply with the provision

would render the recovery of the illicit article suspect and vitiate

the conviction if the same is recorded only on the basis of the

recovery of the illicit article from the person of the accused

during such search.

28. Section 50(1) of the Act would apply only in cases

where the contraband substance is seized or found on conducting

search of the body of the accused. In the present case, the ganja Crl.A.No.06/2020

was seized not on conducting search of the body of the accused.

The ganja was seized from the scooter which was driven by the

accused.

29. Section 50 of the Act applies in case of personal

search of a person. It does not extend to search of a vehicle or a

container or a bag, or premises. In case, the recovery of the

contraband substance is made from a container being carried by

the individual, the provisions of Section 50 of the Act would not

be attracted. A bag, briefcase or any such article or container,

under no circumstances, can be treated as body of a human

being. It is not possible to include these articles within the ambit

of the word "person" occurring in Section 50 of the Act. The

provisions of Section 50 of the Act will come into play only in the

case of personal search of the accused and not of some baggage

like a bag, article or container, etc. which the accused may be

carrying (See Rajendra v. State of M.P : AIR 2004 SC 1103,

State of Himachal Pradesh v. Pawan Kumar : AIR 2005 SC

2265, State of Rajasthan v. Daulat Ram : AIR 2005 SC Crl.A.No.06/2020

3816, Jarnail Singh v. State of Punjab: AIR 2011 SC 964,

Ram Swaroop v. State : AIR 2013 SC 2068 and Kulwinder

Singh v. State of Punjab : AIR 2015 SC 2488).

30. In Mohinder Singh v. State of Punjab : AIR 2018

SC 3798, the Apex Court has observed as follows:

"In the present case, the appellant was carrying the contraband-about seven kilos of "opium" in the bag which he was carrying in the scooter. Carrying the contraband in the scooter/bag cannot be said to be 'by the person' necessitating compliance of Section 50 of the NDPS Act for personal search".

(emphasis supplied)

31. In the instant case, ganja was seized from the scooter

driven by the accused. Of course, after the seizure of the ganja

from the scooter, PW2 had conducted search of the body of the

accused but no contraband substance was seized on conducting

search of his body.

32. When search of the body of the accused as well as

search of a vehicle is conducted and the contraband substance is

seized on conducting search of the vehicle and not on conducting Crl.A.No.06/2020

search of the body of the accused, then Section 50(1) of the Act

has no application.

33. In State of Punjab v. Baljinder Singh : AIR 2019

SC 5298, the Apex Court has held as follows:

"In the instant case, the personal search of the accused did not result in recovery of any contraband. Even if there was any such recovery, the same could not be relied upon for want of compliance of the requirements of Section 50 of the Act. But the search of the vehicle and recovery of contraband pursuant thereto having stood proved, merely because there was non-compliance of Section 50 of the Act as far as "personal search" was concerned, no benefit can be extended so as to invalidate the effect of recovery from the search of the vehicle. ..... Since in the present matter, seven bags of poppy husk each weighing 34 kgs were found from the vehicle which was being driven by accused - Baljinder Singh with the other accused accompanying him, their presence and possession of the contraband material stood completely established".

34. Thus, if a person is found to be in possession of a

vehicle, bag, container etc and search of the body of the person Crl.A.No.06/2020

as well as the vehicle or the bag or the container is made and if

the contraband substance is recovered not on conducting search

of the body of the person but from the vehicle or the container,

then non-compliance with the requirements under Section 50 of

the Act would be of no consequence and the accused will not be

entitled to be acquitted on that ground. The dictum laid down in

Baljinder Singh (supra) squarely applies to the facts of the

present case.

35. Of course, in Raju @ Abdul Haque @ Jaggar v.

State of West Bengal : AIR 2018 SC 4255, the Supreme

Court has held that as soon as the search of the person takes

place, the requirement of mandatory compliance with Section 50

of the Act would be attracted, irrespective of whether contraband

is recovered from the person of the detainee or not.

36. In Than Kunwar v. State of Haryana: (2020) 5

SCC 260, the Apex Court has taken note of the divergent views

in Baljinder Singh (supra) and Raju alias Abdul Haque

(supra). After making a reference to the decision of the Crl.A.No.06/2020

Constitution Bench in State of Punjab v. Baldev Singh :

(1999) 6 SCC 172, in Than Kunwar (supra) it has been held

as follows:

"As already noticed, we are not oblivious of the observation which has been made in the other three Judge Bench judgment of this Court in Sk. Raju (supra), which it appears, was not brought to the notice to the Bench which decided the case later in Baljinder Singh (supra). We notice however that the later decision draws inspiration from the Constitution Bench decision in Baldev Singh (supra). We also notice that this is not a case where anything was recovered on the alleged personal search. The recovery was effected from the bag for which it is settled law that compliance with Section 50 of the Act is not required".

37. In the instant case also, no contraband substance was

recovered on conducting search of the body of the accused and

therefore, this Court is inclined to follow the decisions in

Baljinder Singh (supra) and Than Kunwar (supra) and hold

that the provision contained in Section 50(1) of the Act does not

apply to the facts of the case.

Crl.A.No.06/2020

Discrepancy in the Weight of Ganja

38. The recital in Ext.P1 mahazar is that the ganja found

in nine packets was put in a sack and it was weighed by using an

electronic weighing machine and then it was found that the ganja

weighed 20.190 kilograms. The evidence given by PW2 is also to

that effect.

39. It is clear from the evidence of PW2 and the recitals in

Ext.P1 mahazar that the weight of the ganja mentioned as

20.190 kilograms includes the weight of the sack in which it was

put. However, there is no evidence to show what was the weight

of the sack in which the ganja was put by PW2 for weighing it.

40. PW2 had used an electronic weighing machine for

weighing the ganja. Therefore, he could have weighed the

empty sack first and ascertained the weight of it and thereafter,

he could have put the ganja in the sack and weighed it so that

the exact weight of the ganja alone (excluding the weight of the

sack) could have been ascertained. PW2 did not care to adopt

that course. Instead of doing that, the case projected by the Crl.A.No.06/2020

prosecution is that the accused possessed 20.190 kilograms of

ganja, which amounts to commercial quantity.

41. Section 20(b)(ii)(B) of the Act provides that, whoever,

in contravention of any provisions of the Act or any rule or order

made or condition of licence granted thereunder, produces,

manufactures, possesses, sells, purchases, transports, imports

inter-State, exports inter-State or uses cannabis shall be

punishable, when such contravention involves quantity lesser

than commercial quantity but greater than small quantity, with

rigorous imprisonment for a term which may extend to ten years

and with fine which may extend to one lakh rupees. Section

20(b)(ii)(c) of the Act provides that, when such contravention

involves commercial quantity, he shall be punishable with

rigorous imprisonment for a term which shall not be less than ten

years but which may extend to twenty years and shall also be

liable to fine which shall not be less than one lakh rupees but

which may extend to two lakh rupees.

Crl.A.No.06/2020

42. As per Entry 55 of the Notification dated 19/10/2001

issued by the Central Government, which deals with ganja, small

quantity has been mentioned as 1000 grams and commercial

quantity has been mentioned as twenty kilograms.

43. The above provisions would show that, in a case of

this nature, even a marginal difference in the weight or quantity

of the contraband substance found in the possession of the

accused would have serious consequences in relation to the

finding to be made with regard to the offence, if any, committed

by him and also the punishment to be imposed. For example, in

the instant case, if the actual quantity of ganja found in the

possession of the accused was less than 20 kilograms, there is no

need for imposing the minimum sentence of rigorous

imprisonment for a period of ten years and fine of Rs.1,00,000/-

on the accused. In such cases, the prosecution cannot take

matters very lightly. The prosecution has got the obligation to

prove in such cases the exact quantity of the contraband

substance found in the possession of the accused. Crl.A.No.06/2020

44. In the instant case, the trial court has omitted to note

that the weight of the ganja mentioned in Ext.P1 mahazar as

20.190 kilograms includes the weight of the sack which contained

it. The court cannot assume that the weight of the sack, in which

the ganja was put by PW2 for weighing, had only a weight of less

than 190 gms and therefore, the weight of the ganja found in the

possession of the accused was 20 kilograms or above. In the

absence of evidence adduced by the prosecution regarding the

weight of the sack and the exact weight of the ganja (excluding

the weight of sack), the benefit of it should be given to the

accused and it has to be found that he possessed ganja which is

less than the commercial quantity but above the small quantity,

that is, intermediate quantity.

45. The discussion above leads to the conclusion that the

prosecution was able to establish beyond reasonable doubt that

the accused possessed ganja which was less than the commercial

quantity but above the small quantity. It follows that the

prosecution has proved that he has committed an offence Crl.A.No.06/2020

punishable under Section 20(b)(ii)(B) of the Act. It further

follows that the conviction of the accused by the trial court under

Section 20(b)(ii)(C) of the Act has to be altered to conviction

under Section 20(b)(ii)(B) of the Act.

46. Regarding the punishment to be imposed on the

accused, I find that a sentence of rigorous imprisonment for a

period of six years and fine of Rs.50,000/- would be reasonable

in the circumstances of the case.

47. Consequently, the appeal is allowed in part and it is

ordered as follows:

i) Conviction of the appellant/accused by the trial court

for the offence under Section 20(b)(ii)(C) of the Act is altered to

conviction for the offence under Section 20(b)(ii)(B) of the Act.

ii) In supersession of the sentence imposed on the

appellant/accused by the trial court, he is sentenced to undergo

rigorous imprisonment for a period of six years and to pay a fine

of Rs.50,000/- (Rupees fifty thousand only) and in default of

payment of fine, to undergo rigorous imprisonment for a period Crl.A.No.06/2020

of six months.

(iii) The appellant/accused is entitled to get set off under

Section 428 Cr.P.C.

48. The Registry shall send a copy of this judgment to the

superintendent of the jail in which the accused is detained.

                   (sd/-)    R.NARAYANA PISHARADI, JUDGE

jsr



            True Copy

                            PS to Judge