Muhammed Mubashir V. P vs State Of Kerala
2024 Latest Caselaw 12293 Ker

Kerala High Court

Muhammed Mubashir V. P vs State Of Kerala on 20 May, 2024

Author: Mary Joseph

Bench: Mary Joseph

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
           THE HONOURABLE MRS. JUSTICE MARY JOSEPH
   MONDAY, THE 20TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946
                     CRL.A NO. 586 OF 2021
AGAINST THE JUDGMENT DATED 17.08.2021 IN SC (NDPS) NO.134 OF
      2019 OF SPECIAL COURT (NDPS ACT CASES), VATAKARA
  CRIME NO.409/2019 OF Kozhikode Town Police Station, Kozhikode


APPELLANT:
          MUHAMMED MUBASHIR V. P.,
          AGED 25 YEARS,
          S/O. MUHAMMED MUNDOLIPPARAMBA (H), WEST MANKAVU,
          MANKAVU P.O., KOZHIKODE - 673 007.

          BY ADVS.
             BALU TOM
             BONNY BENNY
             BEJOY JOSEPH P.J.
             VISHNU NARAYANAN
             JINSAB M.P(K/001332/2020)


RESPONDENT:

          STATE OF KERALA,
          REPRESENTED BY PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA,
          REPRESENTING SHO, KOZHIKODE TOWN POLICE STATION,
          KOZHIKODE DISTRICT - 673 001
          IN CRIME NO.409/2019.


          RENJITH GEORGE (SENIOR PUBLIC PROSECUTOR)


     THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON
08.07.2022 AND THE COURT ON 20.05.2024 DELIVERED THE
FOLLOWING:
 Crl.A. No.586 of 2021
                                 -:2:-



                          MARY JOSEPH, J.
                 -----------------------
                       Crl.A. No. 586 of 2021
                 -----------------------
                 Dated this the 20th day of May, 2024


                            JUDGMENT

The above appeal is originated from a judgment

passed by Special Judge (NDPS Act cases), Vatakara (for short,

'the trial court') on 17.08.2021 in S.C. (NDPS) No.134/2019.

The sole accused in the above case was found guilty for the

offences punishable under Sections 20(b)(ii)(A) and 22(c) of

the Narcotic Drugs and Psychotropic Substances Act, 1985 (For

short, 'the N.D.P.S Act') and was convicted and sentenced.

2. The accused was sentenced to undergo rigorous

imprisonment for a period of 10 years and to pay a fine of

`1,00,000/- (Rupees one lakh only) for the offence under

Section 22 (c) of the NDPS Act and to undergo rigorous

imprisonment for a period of one month in default of payment

of fine. The accused was also sentenced to undergo rigorous

imprisonment for a period of one month for the offence under

Section 20(b)(ii)(A) of the NDPS Act. The substantive

sentences of imprisonment are ordered to run concurrently.

3. Aggrieved by the judgment, the accused has

approached this Court in the appeal on hand.

4. It was contended by Sri.Balu Tom, the learned

counsel for the accused that as per the prosecution case, the

weight of LSD stamps recovered from the accused is 0.150 mg

but in Ext.P10, the Chemical Examiner has noted it's weight as

181.10 mg. According to him, the prosecution failed to

establish safe custody of the contraband after seizure till it's

production before the court as well as before the Chemical

Examiner and in the context where the quantum is stated

differently, chances of tampering cannot be ruled out.

According to him, the trial court failed to appreciate the

evidence in the above backdrop and had it been done, it ought

not have arrived at a finding of guilt of the accused, for the

offence charged against him and convicted and sentenced him.

According to him, the prosecution case is also defeated for non-

compliance of Sections 50 and 57 of the NDPS Act. According

to him, PWs 1 to 5, 7 and 12 were examined to prove that the

actual weight of LSD stamps is only 0.150 mg and that its

weight is wrongly shown in various documents marked in

evidence and relied on by the prosecution as Ext.P1 (seizure

mahazar), Ext.P4 (FIR), Ext.P6 (inventory) and Ext.P7 (the

mahazar prepared while drawing sample from the contraband).

According to him, the sample of the contraband was examined

by the Chemical Examiner and in the certificate issued and

marked in evidence as Ext.P10, the weight of LSD stamps was

shown as 181.10 mg. According to him, the weight of the

contraband shown in Ext.P6 inventory which forms primary

evidence being 0.150mg, that itself is sufficient to treat the

prosecution case as one foisted against the accused.

5. The prosecution examined the Magistrate who

verified the correctness of the contraband with the inventory

and certified it, as PW12. According to him, the ganja and the

LSD stamps seized from the accused were produced before him

alongwith an inventory prepared and marked as Ext.P6.

According to him, the LSD stamps were reported in Ext.P6 as

having a weight of 0.150 mg. He would also say that the

weight of LSD stamps seven in numbers would never be 0.150

mg. According to him, the trial court has drawn a conclusion

from the above version of PW12 that the difference in the

weight shown was only an arithmetical error. According to the

learned counsel, the safe custody of the contraband till it's

production before the court as well as before the Chemical

Examiner's Laboratory was not proved by the prosecution and

therefore, it cannot say with precision that the contraband was

not tampered or altered at any point of time. Therefore, he

urged for grant of that benefit of doubt in favour of the

accused. The learned counsel contended further that

independent witnesses examined by the prosecution as PWs 9

and 10 also turned hostile to the prosecution by deposing

against and thereby the prosecution case also lost independent

support.

6. The learned counsel urged vehemently on non-

compliance of the mandatory directions under Sections 50 and

57 of NDPS Act and canvassed for a reversal of the finding of

guilt of the accused on that basis.

7. The learned Public Prosecutor vehemently opposed

the arguments advanced as above and contended that the

evidence adduced by the prosecution was truly appreciated by

the trial court and arrived at a finding of guilt of the accused.

He canvassed for maintaining the finding of guilt of the accused

for the offences as well as the orders of conviction and

sentence, passed against the accused.

8. As per the case of the prosecution, at about 2.40

p.m on 26.06.2019, one person was found by the Sub Inspector

of Police, Kozhikode and his party, engaged in vehicle checking

in south beach, Kozhikode, proceeding in a scooter. Though

they signaled to stop the scooter, he proceeded ahead ignoring

that. He was intercepted at the next traffic signal and detained.

The shoulder bag carried by him was examined and some

packets were recovered by the Sub Inspector therefrom. The

packets were opened and examined and the contents, identified

as ganja and LSD stamps, seven in numbers. An electronic

weighing machine was brought by a gold appraiser to the spot

on the request of the Sub Inspector and the contraband was

weighed from a 'thattukada' situated nearby. The ganja

weighed 130 gram and LSD stamps, 0.150 mg. Those were

seized and the accused was arrested after duly complying with

the formalities of arrest. A crime was also registered against

him at the Police Station alleging commission of offences under

Section 20(b)(ii)(A) and 22(c) of the NDPS Act.

9. The accused was produced before the court and

remanded to judicial custody. The contraband was also

produced before the court alongwith an inventory prepared by

the investigating officer. Two samples of 65 mg were drawn

from the contraband by a Civil Police Officer in the presence of

Judicial First Class Magistrate Court-I, Kozhikode (for short, 'the

Magistrate') . The samples drawn from the ganja were packed

separately and seals of the Station House Officer as well as the

Magistrate court were affixed on the packets. Marking as S1

and S2 were also made on it. LSD stamps, seven in numbers

were also packed together and sealed in similar manner and

marking was made as S3.

10. The correctness of the contraband was ascertained

through the Magistrate and certified. The samples drawn from

the ganja and the LSD stamps as such were forwarded to the

Chemical Examiner's Laboratory for analysis and a certificate

was obtained confirming the samples forwarded as ganja and

the stamps as LSD.

11. Investigation was conducted and on completion, a

final report was laid chargesheeting the accused for the

offences under Section 20(b)(ii)(A) and 22(c) NDPS Act and the

trial court took cognizance of that. The presence of the accused

was procured from judicial custody. After holding a preliminary

hearing, charge was framed against the accused under Sections

20(b)(ii)(A) and 22(c) of the NDPS Act. It was read over and

explained, but he pleaded not guilty and faced trial.

12. On the side of the prosecution, PWs 1 to 12 were

examined and Exts.P1 to P18 were marked. MOs 1 to 7 and

7(a) were also identified. On completion of the prosecution

evidence, the accused was questioned under Section 313(1)(b)

Cr.P.C with reference to the incriminating circumstances brought

against him in evidence by the prosecution. He denied all those

and took a stand that he was falsely implicated. Grounds

having not been made out to record an order of acquittal of the

accused, he was asked to enter on his defence, but he failed to

adduce any evidence.

13. The Sub Inspector of Police of Town Police Station,

Kozhikode was examined as PW1. He deposed categorically that

ganja and LSD stamps, seven in numbers were recovered from

the shoulder bag carried by the accused. According to him,

those were weighed by an electronic weighing machine

procured to the scene through a gold appraiser. According to

him, the contrabands were weighed at a 'thattukada' situated in

Kozhikode beach. Though he deposed categorically about the

recovery of seven LSD stamps, it was spoken as weighed 0.150

mg. PW1 also deposed in corroboration with that of PW2. PW3

and PW4 also deposed to the extent of their involvement in the

process of detection, seizure and other formalities. PW12 the

Magistrate, who witnessed the drawal of samples from the

ganja deposed that two samples each of 65 mg were drawn

from the ganja and packed and seven numbers of LSD stamps

as such were also packed. Though he had spoken about the

weight of the LSD stamps as 0.150 mg, he expressed doubt on

it and stated that the weight would be more than that.

14. Two independent witnesses were examined by the

prosecution as PWs 9 and 10. They deposed to have no

involvement in the process of search and seizure. They deposed

as if the seizure of the contraband was not witnessed by them.

They only went to the extent of stating that the contraband was

seen by them in the Police Jeep.

15. According to PW10, the accused was found by him

sitting inside the Police Jeep at the relevant time. Though they

turned hostile to the prosecution case of seizure of the

contraband from the accused, they admitted their presence at

the spot on the relevant day and time. They also deposed to

have seen the accused at the spot at the relevant time. Each of

them also admitted to have authored signatures in the seizure

mahazar, which according to PWs 1 and 2, prepared from the

spot, contemporaneous to the performance of various

formalities associated with search, seizure, packing and sealing

of the contraband and arrest of the accused by a team of

officers led by PW1. Each of them also deposed as if he had

witnessed the affixture of signature by the other in the seizure

mahazar from the spot of seizure of the contraband. Therefore,

the versions of PWs 9 and 10 to that extent being supportive,

can be relied on by the prosecution.

16. The Chemical Examiner who examined and analysed

the samples of the contraband has issued a certificate, marked

in evidence as Ext.P10. Ext.P10 is admissible in evidence

without examining it's signatory. Even then, the prosecution

examined the Chemical Examiner during trial as PW5. The

weight of the LSD stamps at the time when it was received by

the Chemical Examiner at the Laboratory was reported in

Ext.P10 as 181.10 mg. Three packets where marking was

given as S1, S2 and S3 were also spoken as received by him

and those after analysis was certified by him respectively as

ganja and LSD stamps.

17. It appears from the above discussion of the oral

evidence tendered by the prosecution witnesses that they were

very much convinced when they spoke that the LSD stamps

seized from the accused are seven in numbers. Therefore, the

question of utmost relevance in the context on hand is whether

the accused is prejudiced by the difference in the weight of LSD

stamps noted in various documents relied on by the

prosecution.

18. As per the prosecution case itself, seven numbers

of LSD stamps were seized from the possession of the accused

on 26.06.2019. It is their specific case that seven numbers of

LSD stamps after it's seizure from the accused were also

produced before the Magistrate. The Magistrate has verified the

correctness of the contraband produced before it with the

inventory furnished to him and certified the number of LSD

stamps as seven and the quantity of ganja as 130gm.

Therefore, the prosecution has a consistent version with respect

to the quantity of ganja seized. The only inconsistency brought

to notice was regarding the weight of LSD stamps. As already

stated, samples were not drawn from the LSD stamps, seized

from the accused and the stamps as a whole was forwarded to

the Chemical Examiner's Laboratory for analysis. PW5, the

Chemical Examiner also admitted to have received a packet

with marking S3, containing seven numbers of LSD stamps.

Therefore, with regard to recovery of seven numbers of LSD

stamps, from the accused, the evidence of the prosecution is

static and clear. During his examination under Section 313(1)

(b) Cr.P.C, the accused took a stand of total denial of seizure of

the contraband from him and his false implication in the case.

With regard to the number of LSD stamps seized from the

possession of the accused, the documentary evidence relied on

by the prosecution is also consistent. Therefore, the

prosecution case that seven numbers of LSD have been seized

from the accused on 26.06.2019 was proved beyond reasonable

doubt.

19. True that an error has been crept in while reporting

the weight of LSD stamps. It was shown differently in the

various documents relied on by the prosecution. The accused

was chargesheeted by the police after holding investigation

into an accusation of being in unauthorized possession of ganja

and seven numbers of LSD stamps. Charge was also framed

by the trial court against him for unauthorized possession of

130 gms of ganja and seven numbers of LSD stamps.

Witnesses of the prosecution have also consistently spoken

about the weight of ganja and the number of LSD stamps

seized from the accused.

20. The version of PW2 was also that LSD stamps seven

in numbers have been recovered by him and forwarded to the

Chemical Examiner's Laboratory for analysis. According to him,

the analysis reveals to him that the seven stamps together

weigh 181.10 mg. The Chemical Examiner, has also reported in

Ext.P10 that LSD stamps weighed 181.10 mg.

21. As PW5, the Chemical Examiner also deposed that

LSD stamps weighed 181.10 mg. The learned counsel

contended in the backdrop of difference in weight of LSD

stamps that it was not the quantity seized from the accused

that reached before the Chemical Examiner's Laboratory.

22. It has been held by the Apex Court in E.Micheal Raj

Vs. Intelligence Officer, Narcotic Control Bureau [(2008) 5

SCC 161] that when any narcotic drug or psychotropic

substance is found mixed with one or more neutral substance/s,

for the purpose of imposition of punishment, the actual content

of narcotic drugs or psychotropic substance shall be taken into

consideration by the accused. A question was referred to the

larger bench of the Apex Court for consideration whether

quantity of neutral substance (s) was to be taken into

consideration with the actual content of the contraband, while

determining small or commercial quantity in relation to narcotic

drugs or psychotropic substances in mixture with one or more

neutral substance(s), in Hira Singh and Ors. Vs. Union of

India (UOI) and Others [AIR 2020 SC 3255], the court

answered the reference by holding that an interpretation of the

relevant provisions of the statute canvassed on behalf of the

accused and the intervener that quantity of neutral substance

(s) was not to be taken into consideration and it was only the

actual content of the weight of the offending drug, which is

relevant for the purpose of determining whether it would

constitute small quantity or commercial quantity, could not be

accepted.

23. The Apex Court while answering the point in the

affirmative observed:-

" The problem of drug addicts was international and the mafia is working throughout the world. It was a crime against the society and it had to be dealt with iron hands. Use of drugs by the young people in India had increased. The drugs were being used for weakening of the nation. During the British regime control was kept on the traffic of dangerous drugs by enforcing the Opium Act, 1857. The Opium Act, 1875 and the Dangerous Drugs Act, 1930. However, with the passage of time and the development in the field of illicit drug traffic and during abuse at national and international level, many deficiencies in the existing laws have come to notice. Therefore, in order to remove such deficiencies and difficulties, there was urgent need for the enactment of a comprehensive legislation on Narcotic Drugs and Psychotropic Substances, which led to enactment of NDPS Act. The Act was a special law

and had a laudable purpose to serve and was intended to combat the menace otherwise bent upon destroying the public health and national health. The guilty must be in and the innocent ones must be out. The punishment part in drug trafficking was an important one but its preventive part is more important. Therefore, prevention of illicit traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 came to be introduced. The aim was to prevent illicit traffic rather than punish after the offence was committed. Therefore, the Courts will have to safeguard the life and liberty of the innocent persons. Therefore, the provisions of NDPS Act were required to be interpreted keeping in mind the object and purpose of NDPS Act impact on the society as a whole and the Act was required to be interpreted literally and not liberally which may ultimately frustrate the object, purpose and preamble of the Act."

24. The court further observed:-

" It was required to be noted that illicit drugs are seldom sold in a pure form. They were almost always adulterated or cut with other substance. Caffeine was mixed with heroin, it causes that heroin to vaporize at a lower rate. That could allow users to take the drug faster and get a big punch sooner. Aspirin, crushed tablets, they could have enough powder to amend reversal doses of drugs. Take example of heroin. It was

known as powerful and illegal street drug and opiate derived from morphine. This drug can easily be cut with a variety of different substances. This means that drug dealer would add other drugs or non-intoxicating substances to the drug so that they could sell more of it at a lesser expense to themselves. Brown-sugar/smack is usually made available in power form. The substances was only about twenty percent heroin. The heroin was mixed with other substances like chalk powder, zinc oxide, because of these, impurities in the drug, brown- sugar was cheaper but more dangerous. These were only few examples to show and demonstrate that even mixture of narcotic drugs or psychotropic substance was more dangerous. Therefore, what was harmful or injurious was the entire mixture/tablets with neutral substance and Narcotic Drugs or Psychotropic Substances. Therefore, if it was accepted that it was only the actual content by weight of offending drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, in that case, the object and purpose of enactment of NDPS Act would be frustrated. There may be few punishment for commercial quantity. Certainly that would not have been the intention of the legislature"

25. In the case on hand, a complete strip having 6 LSD

stamps and another one having only one, have been seized

from the custody of the accused. Therefore, the case of the

prosecution was that the accused was in possession of 130 gms

of ganja and a strip containing 6 LSD stamps and another

containing only one, and those were seized from his possession.

From the discussion hereinabove made, this Court is convinced

that the prosecution has proved its case that the accused was in

possession of ganja weighing 130 gms and seven numbers of

LSD stamps totally weighing 0.150 mg. Seizure mahazar was

prepared from the spot and it is the primary document

prepared contemporaneously with the performance of the

formalities envisaged under the NDPS Act, pursuant to seizure

of a contraband. Seizure mahazar is marked in evidence as

Ext.P9. As per Ext.P9 the total weight of seven LSD stamps

was 0.150 mg. In the crime registered following the seizure of

the contraband also the total quantity of the LSD stamps was

shown as 0.150 mg. The FIR is marked in evidence as Ext.P4.

An inventory was prepared by the detecting officer under

Section 52A(2) of NDPS Act and forwarded to Judicial First Class

Magistrate Court, Kozhikode which is marked in evidence as

Ext.P6. The total weight of LSD stamps was also found

reported in Ext.P6 as 0.150 mg.

Sub Section (4) of Section 52 (A) reads:-

52-A Disposal of seized narcotic drugs and

psychotropic substances:-

xxx

"(4)Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every Court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances and any list of samples drawn under subsection (2) and certified by the Magistrate, as primary evidence in respect of such offence."

Therefore, the inventory, correctness of which is certified by the

Magistrate as envisaged under Clause (a) of Sub-section (2) of

Section 52A shall be treated as primary evidence in respect of

the offence with reference to the possession of contraband for

which the accused was tried. Therefore, the trial court ought to

have relied on Ext. P6 as the primary evidence rather than

Ext.P10 for deciding the quantity of the contraband that was

recovered from the accused.

26. Immediately after the seizure and arrest of the

accused, a full report of all particulars regarding the arrest and

seizure was forwarded by the detecting officer to his immediate

official superior as contemplated under Section 57 NDPS Act

and that is marked in evidence as Ext.P5. A mahazar was also

prepared while drawing samples of the contraband and that is

marked in evidence as Ext.P7. In Ext.P5 as well as in Ext.P7,

the total weight of LSD stamps is shown as 0.150 mg. A final

report was laid on completion of investigation in the crime and

there also the total weight of LSD stamps was shown as 0.150

mg. The number of LSD stamps find a place in all the above

documents as 7. As per Ext.A9, sample was not drawn from

seven numbers of LSD stamps for the purpose of analysis at the

Chemical Examiner's Laboratory.

27. As per the case of the prosecution, seven numbers of

LSD stamps seized from the possession of the accused as such

were forwarded to the Chemical Examiner's Laboratory for

analysis. Certificate of Chemical Examination was also obtained

by the court and marked in evidence as Ext.P10. The Assistant

Chemical Examiner who conducted analysis of LSD stamps was

also examined as PW5. It was found reported in Ext.P10 that

the LSD stamps weighed at the Chemical Examiner's Laboratory

as 181.10 mg. The Assistant Chemical Examiner when

examined as PW5 also deposed about the total weight of LSD

stamps in a corroborative manner. On a verification of the

court charge, it is found that the total quantity of LSD stamps

was shown there as 150 mg instead of 0.150mg.

28. Therefore, in most of the documents relied on by the

prosecution as discussed hereinabove, the total weight of LSD

stamps was shown as 0.150 mg. In the certificate of Chemical

analysis marked in evidence as Ext.P10, the LSD stamps were

weighed with its packing materials and a plastic container

having a screw cap and therefore found as 181.10 mg. The

Chemical Examiner during examination before the court as PW5

also deposed that the LSD stamps with plastic container having

a screw cap and packing materials was weighed and found as

181.10 mg.

29. In the charge framed by the court, the total quantity

of LSD stamps was shown as 150 mg. The court charge is

framed based on the materials proposed to be relied on by the

prosecution and made available to the court. When the weight of

LSD stamps was shown in the documents produced before the

court alongwith the chargesheet, report it as 0.150 mg, the weight

crept into the court charge as 150 mg can only be consider ed as a

mistake crept in due to the oversight of the court concerned while

framing charges. When the difference in the weight noted in

Ext.P10 is self explanatory, the trial court ought not to have

relied on that while arriving at a finding of illegal possession of

commercial quantity of LSD by the accused and punishing him

for the offence under Section 20(b)(ii)(A) NDPS Act.

30. With regard to the number of LSD stamps, the

prosecution witnesses examined before the court and the

documents relied on by the prosecution in evidence have

consistency and the number is seven. 0.002 gm is small

quantity of LSD and 0.1g is commercial quantity. The total

weight of LSD consistently reflected in various documents relied

on by the prosecution being 0.150 mg, that alone ought to have

been considered by the trial court to fix the exact weight of the

contraband.

31. The prosecution in the case on hand has established

by the evidence adduced by it before the trial court that 130

gms of ganja and 7 numbers of LSD stamps having a total

weight of 0.150 mg were seized from the possession of the

accused. As far as the weight of ganja is concerned 130 gms is

only small quantity and as far as weight of LSD is concerned,

0.150 mg, is only intermediary quantity.

32. When the contraband was established by the

prosecution as seized from the accused, the presumption under

Section 54 NDPS Act would be attracted that the accused has

committed an offence under the Act in respect of the

contraband seized from him, for the possession of which he fails

to account satisfactorily, unless and until the contrary is proved

by him. In the case on hand, evidence of any nature was not

adduced by the accused availing the opportunity granted by the

trial court to establish on the contrary. While being examined

under Section 313 (1)(b) Cr.P.C also, he has taken a stand of

denial of the commission of the offence and false implication.

But he failed to adduce any evidence to rebut the presumption

under Section 54 NDPS Act. Even in the appeal on hand, the

challenge was raised only against the quantum of contraband

seized and not against it's possession. Therefore, it appears as

if the accused has admitted the seizure of 130 gms of ganja

and 7 LSD stamps from him. This Court finds that the finding

of guilt arrived at by the trial court is only to be maintained.

The conviction of the accused and the sentence imposed on him

for the offence under Section 20(b)(ii)(A) NDPS Act is only to

be confirmed. The finding of guilt of the accused under Section

22(c) NDPS Act, orders of conviction and imposition of

sentence thereunder are liable to be reversed.

In the result, the appeal on hand is allowed in part. The

judgment to the extent it found the accused guilty for illegal

possession of LSD stamps is confirmed and he is convicted and

punished as if he was in possession of intermediary quantity of

LSD stamps. Thus he is convicted for the offence under Section

20(b)(ii)(B) NDPS Act and sentenced to undergo rigorous

imprisonment for six years and also to pay `1,00,000/- as fine.

He is also sentenced to undergo simple imprisonment for one

year in case of default in payment of fine. Set off is also

allowed under Section 428 Cr.P.C. The substantive sentences

are ordered to run concurrently.

Sd/-

MARY JOSEPH JUDGE JJ