Santhosh vs State Of Kerala
2021 Latest Caselaw 20850 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
             THE HONOURABLE MRS. JUSTICE MARY JOSEPH
  WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943
                       CRL.A NO. 1418 OF 2019
 AGAINST THE JUDGMENT DATED 23.02.2019 IN S.C.NO.1131/2018 OF
             ADDITIONAL   SESSIONS COURT - IV, KOLLAM
APPELLANT/ACCUSED:

            SANTHOSH,
            AGED 40 YEARS, S/O SADASIVAN,
            C.NO.3336, CENTRAL PRISON AND CORRECTIONAL HOME,
            POOJAPPURA, THIRUVANANTHAPURAM AND RESIDED AT
            SANTHOSH BHAVAN, VETTIKKAVALA P.O, NADUKKUNNUMURI,
            VETTIKKAVALA VILLAGE, KOTTARAKKARA

            BY ADV. SRI.AJEESH S.BRITE


RESPONDENT/COMPLAINANT:


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

      2     THE CIRCLE INSPECTOR OF EXCISE, EXCISE RANGE OFFICE,
            KARUNAGAPPALLY

            BY SRI.PRASANTH M.P, PUBLIC PROSECUTOR



     THIS   CRIMINAL   APPEAL   HAVING    COME   UP   FOR   ADMISSION   ON
06.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.Appeal No.1418 of    2019

                                  2




                            JUDGMENT

Dated this the 06th day of October, 2021

Judgment passed by Additional Sessions Judge-IV, Kollam

(for short 'the court below') on 23.02.2019 in S.C.No.1131/2018

is assailed in the appeal on hand.

2. The appellant is the accused, who has been found

guilty by the judgment under challenge for an offence punishable

under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (for short 'the NDPS Act') and convicted

and sentenced to undergo rigorous imprisonment for ten years

and to pay a fine of Rs.1,00,000/- and to undergo simple

imprisonment for six months in case of default of payment of fine.

3. The case of the prosecution was that at about 10.30

a.m, on 17.08.2009, the accused was found traveling in an

autorickshaw bearing registration No.KL-02-AC-6278 with an air

bag and suitcase and was intervened by the Excise officials in

front of a Margin Free Shop at Chavara bus stand. The vehicle

was searched and from the suitcase and airbag, 12kgs and Crl.Appeal No.1418 of 2019

420gms of ganja were seized. Alleging that the accused was in

possession of ganja for the purpose of sale, after making him

convinced that possession of it is illegal, he was arrested. The

contraband was seized and crime was also registered.

Investigation was conducted by CW11 and a final report was laid

chargsheeting the accused for an offence punishable under

Section 20(b)(ii)(B) of the NDPS Act. Investigation was

proceeded with and on conclusion, a final report was laid before

Court of Sessions, Kollam. That court took cognizance of the final

report and registered S.C.No.143/2010 on file, on it's basis. The

case was made over to Additional Court of Sessions-IV, Kollam for

trial and disposal.

4. Though originally the case was taken on file as

S.C.No.143/2010, since the accused was absconding the matter

was transferred to the Long Pending Register as L.P.No.9/2013.

When the accused was arrested and produced, the case was

taken back to file by the court and re-numbered as

S.C.No.1131/2018. The prosecution and the defence were heard

and charge was also framed under Section 20(b)(ii)(B) of the

NDPS Act, which when read over and explained to the accused, he

pleaded not guilty and faced trial.

Crl.Appeal No.1418 of 2019

5. On the side of the prosecution PWs 1 to 6 were

examined and Exts.P1 to P17 and MOs 1 to 4 were marked. On

closure of the prosecution evidence, the accused was questioned

with reference to the incriminating circumstances brought in

evidence by the prosecution against him during examination

under Section 313(1)(b) Cr.P.C. The accused denied the questions

and has taken a stand that he has no connection whatsoever with

the contraband seized. Grounds having not been made out to

record an order of acquittal, the court below has asked the

defence to adduce evidence. But, the appellant did not.

Thereupon, the prosecution as well as the defence were heard

and the impugned judgment was passed.

6. Sri.Ajeesh S Brite, the learned counsel for the

appellant on State Brief has contended that independent

witnesses examined did not support the prosecution case and the

finding of guilt of the accused was arrived at by the court below

solely based on the evidence tendered by official witnesses. It

was contended by the prosecution that the contraband was

allegedly seized from an autrorickshaw wherein the appellant was

travelling as a passenger. The driver of the autorickshaw was not

made a witness by the prosecution and not examined. According Crl.Appeal No.1418 of 2019

to the learned counsel, the alleged recovery was not from the

person of the accused but only from a suit case and an air bag,

which were seized from the autorickshaw. The learned counsel

has also invited the attention of this Court to a statement

recorded from the driver of the autorickshaw under Section 161

Cr.P.C that the autorickshaw does not belong to him and at 8.30

on 17.08.2009 one person came with two suit cases and travelled

in the autorickshaw. According to the learned counsel, as per the

prosecution case an air bag and a suit case were involved but as

per the version of the autorickshaw driver two suit cases were

involved. It was contended by the learned counsel that the

appellant was arrested on 17.08.2009 itself and was released on

bail on 23.02.2011.

7. According to the learned counsel, the appellant has

already suffered imprisonment for more than 4 years and 6

months. According to the learned counsel the court below has

imposed rigorous imprisonment for 10 years and fine of

Rs.1,00,000/-. It is urged by the learned counsel, in the absence

of any similar crimes registered against the appellant and being

the first offender under the NDPS Act, there is every justification

in modifying the term of imprisonment and confining it to the Crl.Appeal No.1418 of 2019

period already suffered by him.

8. The learned Public Prosecutor contended that PW1 and

PW2 who are official witnesses examined by the court had

categorically deposed to support the prosecution case. An

independent witness was also examined but, he did not support

the versions of PW1 and PW2.

9. The trial court was convinced of the guilt of the

accused from the corroborative versions of the official witnesses.

It is also settled position of law that if the versions of the official

witnesses, on a thorough scrutiny, are found as lending support to

the prosecution case, there is nothing wrong in relying on those

to find the accused guilty of the offence alleged against him.

10. A report was also filed in the case as directed by this

Court stating that the appellant has no other case registered

against him under the NDPS Act or Abkari Act and the case on

hand is the only one wherein his involvement is reported.

11. As per the information received from the Office of

Additional Court of Sessions-IV, the accused has served custody

from 17.08.2009 till 23.02.2011 and from 28.09.2018 till Crl.Appeal No.1418 of 2019

23.02.2019 and is still continuing. Therefore, he has suffered the

sentence imposed on him for more than 4 years and 6 months as

on date.

12. The quantity involved in the case on hand being 12 kgs

and 420 gms of ganja, the sentence liable to be imposed under

Section 20(b)(ii) (B) of NDPS Act is rigorous imprisonment for a

term which may extend to ten years, and with fine which may

extend to one lakh rupees. Therefore there is scope for exercise

of discretion in the matter of imposition of substantive sentence.

In the above circumstances, the quantity being 12kgs and 420

gms and appellant being the first offender, this Court is inclined to

limit the period of substantive sentence imposed, to the period

already suffered by the appellant. The fine amount imposed by

the impugned judgment is maintained and directed to be

deposited on or before 20.12.2021. On failure of the appellant to

deposit the fine amount of Rs.1,00,000/- on or before

20.12.2021, the court below shall proceed to execute the default

sentence of simple imprisonment for six months as directed by

the judgment assailed, forthwith.

Crl.Appeal No.1418 of 2019

Crl.Appeal is allowed in part to the above extent. The

Registry shall send a copy of this judgment immediately to the

Superintendent of the jail in which the appellant/accused is

detained. The appellant/accused shall be released forthwith.

sd/-

MARY JOSEPH JUDGE

NAB