Aniyan (C.No.963) vs State Of Kerala
2022 Latest Caselaw 9462 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
  THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944
                     CRL.A NO. 908 OF 2016
AGAINST THE ORDER/JUDGMENTSC 704/2014 OF ADDITIONAL DISTRICT
                      COURT-I,MAVELIKKARA
APPELLANT/ACCUSED:

         ANIYAN (C.NO.963),
         CENTRAL PRISON,
         POOJAPPURA P.O, TRIVANDRUM -12

         BY ADV SRI.LIJOY P.VARGHESE, STATE BRIEF



RESPONDENT/COMPLAINANT:

         STATE OF KERALA
         REPRESENTED BY DGP,
         HIGH COURT OF KERALA

         BY ADV. SRI SANGEETHA RAJ-PP



     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
12.08.2022, THE COURT ON 25.08.2022 DELIVERED THE FOLLOWING:
 Crl.Appeal No.908/2016

                              -:2:-




                         J U D G M E N T

Dated this the 25th day of August, 2022

This appeal has been filed under Sections 374(2) and 383 of

the Cr.P.C by the first accused in S.C.No.704/2014 on the file of

the Additional Sessions Judge I, Mavelikkara against the judgment

dated 12th April, 2016 convicting him under Section 20(b)(ii)(B) of

the Narcotic Drugs and Psychotropic Substances Act (for short

'the NDPS Act')

2. The prosecution case in short in that on 15.05.2013 at

about 12.10 pm, while PW3 the Excise Inspector was checking

vehicles in front of KTDC beer parlour near Nangiarkulangara, he

found the appellant who is the first accused carrying 2.345

Kilograms of ganja, sitting on the back seat of autorickshaw

bearing Reg.No. KL-28-A-7464 driven by the second accused who

also possessed 100 grams of ganja and thus committed the

offence. The detecting officer introduced and informed them that

he was about to search them and also asked them whether they

required the presence of a gazetted officer or Magistrate to Crl.Appeal No.908/2016

search their body. Even though they said 'no', PW3 prepared

Ext.P3 letter addressed to PW7, the then Haripad Excise Circle

Inspector, requesting his presence at the scene of occurrence for

the purpose of conducting body search of the accused. PW7 came

to the scene of occurrence, introduced himself to the appellant

and also about the proposed body search. Thereafter, PW3

conducted body search of the appellant in the presence of PW7.

On search, PW3 detected a blue coloured plastic cover containing

grey coloured substance having pungent smell of ganja. On

physical examination, it was found to be the leaf on the top,

stem, flower and seed of ganja plant. He weighed the ganja and it

was found to be 2.345 kgs. He then seized the plastic cover

carried by the second accused and on inspection, he found 100

grams of ganja in it. PW3 seized those items including the

vehicle, properly packed, labelled and sealed the contraband in

the presence of the witnesses. He also prepared Ext.P2 seizure

mahazar and Ext.P1 search list in which PW7 put his signature.

Thereafter, PW3 produced the accused along with the records

and contrabands before PW7, who registered the crime and

occurrence report as per Ext.P15. The seized contraband Crl.Appeal No.908/2016

substance was produced at the court on the same day itself. The

contraband substance was sent for chemical analysis as per

Ext.P16. Then, PW8 took up the investigation. After analysis,

chemical analysis report was received, which was marked as

Ext.P14. After investigation, complaint was filed before the

Sessions Court, Alappuzha which was later made over to the

court below for trial and disposal.

3. The accused No.2 died during trial. After hearing the

prosecution and the defence, charge was framed against the

appellant under Section 20(b)(ii)(B) of the NDPS Act. The charge

was read over and explained to the appellant, who pleaded not

guilty.

4. The prosecution examined PW1 to PW8 and marked

Exts.P1 to P19. MO1 to MO4 were identified. After closure of the

prosecution evidence, the appellant was examined under Section

313 Cr.P.C. He denied all the incriminating circumstances brought

against him during evidence. He submitted that he is innocent.

After questioning him under Section 313 Cr.P.C, the court below

heard the learned Public Prosecutor as well as the learned Crl.Appeal No.908/2016

counsel for the appellant under Section 232 of Cr.P.C. It was found

that the appellant was not entitled to an order of acquittal at that

stage. The appellant was called upon to enter on his defence. No

defence evidence was adduced.

5. Considering the evidence on record, the court below

found the appellant guilty of the offence punishable under

Section 20(b)(ii)(B) of the NDPS Act and he was convicted for the

said offence. He was sentenced to undergo rigorous

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

₹1,00,000/-, in default to suffer rigorous imprisonment for a

period of one year. Aggrieved by the said conviction and

sentence, the appellant preferred this appeal.

6. Since the appellant is not represented by a lawyer, this

court appointed Sri. Lijoy. P. Varghese as Crown counsel. I place

on record the able assistance rendered by him.

7. I have heard Sri. Lijoy. P. Varghese, the learned counsel

for the appellant and Sri.Sangeetha Raj, the learned Public

Prosecutor.

Crl.Appeal No.908/2016

8. The learned counsel appearing for the appellant

impeached the finding of the court below on appreciation of the

evidence and resultant finding as to the guilt. The learned

counsel submitted that PWs 3 and 7, whose evidence were

heavily relied on by the court below, are official witnesses and

also there is non-compliance of Section 50 of the NDPS Act. The

counsel submitted that the quantity of the ganja seized from the

possession of the appellant is only 2.345 kgs and hence sentence

imposed is excessive. The learned Public Prosecutor on the other

hand, supported the findings and verdict handed down by the

court below and argued that necessary ingredients of Section

20(b)(ii)(B) of the NDPS Act had been established and the

prosecution has succeeded in establishing and proving the case

beyond reasonable doubt.

9. The prosecution mainly relied on the oral testimony of

PWs 3 and 7, and Exts.P1, P2, P3, P8, P14 and P16 to prove the

possession of the ganja by the appellant and arrest and seizure of

the same. PW3, the detecting officer, deposed that at about 12

noon on 15.05.2013, while he was checking vehicles in front of Crl.Appeal No.908/2016

KTDC beer parlour which is about 200 metres South to

Nangiarkulangara junction, he saw a bajaj autorickshaw bearing

Reg.No. KL-28-A-7464 coming towards south and he gave a signal

to stop the vehicle and it stopped about 20 meters north from the

place where they were standing. He further deposed that, the

driver as well as the passenger sitting were found perplexed and

the appellant who was sitting on the back side of the

autorickshaw carrying a blue coloured plastic cover attempted to

run away. He suspected that the appellant was carrying

contraband substance and hence he told the appellant his right

to have his body search in the presence of a Magistrate or a

gazetted officer. He further deposed that he conducted the body

search of the appellant in the presence of PW7 and he could seize

the contraband substance. MO1 is the contraband substance and

MO2 is the blue plastic cover. His evidence would further show

that MO1 was properly packed, labelled and sealed. He has also

prepared a scene mahazar, which was marked as Ext.P2. PW3

further deposed that he arrested the appellant at 1.40 pm,

produced him along with the contraband before PW7 and crime

was registered. Ext.P15 is the crime and occurrence report. PW3 Crl.Appeal No.908/2016

also identified the appellant and the material objects at the court.

Ext.P14 chemical examination report would clearly show that the

seized material objects forwarded to the Forensic Science

Laboratory were intact and the parcel containing the MOs was

sealed with impression of the seal corresponding to the seal

impression forwarded as per the forwarding note. He clearly

deposed about the arrest of the appellant, search and seizure of

the contraband substance. Thus, search and seizure of the

contraband substance and the arrest of the appellant were amply

proved.

10. The next question is whether there is any violation of

the provisions of Section 50 of the NDPS Act. The evidence of

PWs 3 and 7 would show that PW3 prepared Ext.P3 letter and

sent to PW7 requesting his presence at the place of occurrence

for conducting body search of the appellant. Thereafter, the body

search was conducted by PW3 in the presence of PW7. The

evidence would further show that the appellant was apprised of

his right to get the body search conducted in the presence of a

gazetted officer or Magistrate. Hence, I am of the view that there Crl.Appeal No.908/2016

is compliance of Section 50 of the NDPS Act as well. That apart,

strictly speaking, Section 50 is not attracted inasmuch as the

seizure is not from the body of the appellant, but from the plastic

bag carried by him.

11. The learned counsel for the appellant next argued that

the appellant is entitled to get the benefit of doubt as the colour

of the contraband mentioned in Exts.P16 and P17 are different.

PWs 3 and 7 described the contraband substance as grey

coloured while in Ext. P14, the physical appearance is green

colour, argued the counsel. On the other hand, PW6 the Assistant

Chemical Examiner deposed that the colour of the contraband

substance is greenish brown colour and as the leafy material is

dry, it will appear in brownish colour. He further deposed that a

mere look may give the impression that it is grey coloured. That

apart, no circumstance is brought out in evidence to show that there is

a manipulation or tampering of the contraband substance.

12. Ext.P14 is the chemical analysis report. It would show

that the parcel containing the material object sent to the forensic

science laboratory was sealed with the impression of the seal, Crl.Appeal No.908/2016

corresponding with the seal impression forwarded and the seals

were intact. It will also show that the seized material objects

tallied with the seal impression forwarded. In Ext.P14 the details

of the chemical examination conducted have been clearly

mentioned. In Ext.P14 it is clearly stated that cannabis sativa

(ganja) was detected. Cannabis sativa (ganja) is a narcotic drug.

The quantity of ganja seized from the possession of the appellant

was 2.345 kgs. Thus, the prosecution has established that the

material object seized is a psychotropic substance as defined

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

13. The next question is regarding the sentence. The court

below sentenced the appellant to undergo rigorous imprisonment

for a period of seven years. The quantity involved is only 2.345

kgs which is just above the small quantity and much below the

commercial quantity. The petitioner has no criminal antecedents.

A report filed by the Jail Superintendent would show that the

petitioner had already undergone the actual imprisonment of 6

years, 8 months and 4 days as on 16/7/2022 including the period

of remand set off u/s 428 of Cr.P.C. The petitioner was also

sentenced to pay a fine of ₹1,00,000/-, in default to suffer Crl.Appeal No.908/2016

rigorous imprisonment of one year. Thus, if the substantive

sentence is reduced to 5 years of rigorous imprisonment, the

actual imprisonment already undergone by him will take the

entire sentence including the default sentence so that he can be

released from jail.

14. Considering the entire facts and circumstances of the

case, the substantive sentence of imprisonment is reduced to 5

years. Since the appellant has already undergone the modified

sentence including the default sentence, he shall be released

forthwith, if he is not required otherwise.

Crl.Appeal is allowed in part as above.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE Rp