Kerala High Court
Nazar @ Achu vs State Of Kerala on 5 January, 2016
Author: B.Sudheendra Kumar
Bench: B.Sudheendra Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
TUESDAY, THE 5TH DAY OF JANUARY 2016/15TH POUSHA, 1937
CRL.A.No. 4 of 2009 (A)
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SC 330/2008 of ADDITIONAL SESSIONS COURT (ADHOC-1), ERNAKULAM
APPELLANT/ACCUSED:
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NAZAR @ ACHU, S/O.HAMSA,
VALIYAPARAMBIL, HOUSE NO. V/333, VSS
ROAD, BATHROOM BHAGOM, MATTANCHERRY KARA
MATTANCHARRY VILLAGE
BY ADV. SRI.ASHIK K.MOHAMMED ALI
RESPONDENT/COMPLAINANT:
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STATE OF KERALA, REPRESENTED BY THE
SUB INSPECTOR OF POLICE, FORT KOCHI
THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF, KERALA
ERNAKULAM.
BY PUBLIC PROSECUTOR, SHRI.R.GITHESH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-01-2016,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.SUDHEENDRA KUMAR, J.
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Dated this the 5th day of January 2016 J UD G M E N T The appellant is the accused in S.C. No.330 of 2008 on the files of the Assistant Sessions Court (Adhoc-1), Ernakulam, who in this appeal challenges the conviction and sentence passed by the courts below under Section 20
(b)(ii)(B) of the NDPS Act.
2. Heard.
3. The prosecution allegation is that on 29.02.2008 at about 3.25 p.m., the appellant was found in possession of 1 Kg. 50 gm. of ganja in a plastic bag for the purpose of sale near to the bus stop at Veli.
Crl.A.4/2009 : 2 :
4. Before the trial court, PW1 to PW6 were examined and Exts.P1 to P19 were marked for the prosecution, besides identifying MO1 to MO11. No evidence was adduced on the side of the appellant.
5. PW1 was the Sub Inspector of Police, Fort Kochi, who detected the offence. PW1 stated that he received information with regard to the possession of ganja by the appellant. He passed on the information to his superior officer in writing and thereafter, he proceeded to the spot. Then, the appellant was found carrying a bag. The appellant was informed by PW1 about his right of being searched in the presence of a Gazetted officer or a Magistrate. The appellant opted for the Gazetted Officer. Therefore, PW6 was informed. PW6 came to the spot and Crl.A.4/2009 : 3 :
in his presence, the body of the appellant was searched. However, nothing was recovered from his body. Therefore, his bag was inspected. The said bag contained ganja. The material was weighed by PW1. Thereafter, the sample was taken by him from the spot. The appellant was arrested by PW1 at the spot. Ext.P2 mahazar was also prepared by PW1.
6. PW2 was an independent witness to the occurrence. He also supported the evidence of PW1 in all material aspects. He admitted his signature in Ext.P2 mahazar, prepared in connection with the seizure in this case. PW3 was the Assistant Sub Inspector of Police, Harbour Police Station. He was attached to the office of PW6. He accompanied PW6 to the spot. He also Crl.A.4/2009 : 4 :
witnessed the incident of search and seizure. PW3 had given evidence corroborating with the evidence of PW1 in all material aspects. PW6 was the Circle Inspector of Police, who also had given evidence corroborating with the evidence of PW1. He stated that he received information from the Sub Inspector of Police regarding the occurrence. He reached the spot and carried out the search on the person of the accused. Thereafter, the bag was searched. He stated about the weighing, sampling and sealing in tune with the evidence of PW1.
7. The learned counsel for the revision petitioner has argued that the evidence of PW1 and PW6 would show that the balance used to weigh the contraband was a small balance, having a diameter of only six inches, with which Crl.A.4/2009 : 5 :
the contraband could not be admittedly weighed as a single lot and in the said circumstances, it cannot be said that the actual weight of the sample was above 1 Kg., which is the upper limit for the small quantity under the NDPS Act. The evidence of PW1 and PW6 would show that the balance used in this case was a common balance. It is clear from the evidence of PW1 and PW6 that the contraband could not be weighed as a single lot. PW6 could not state as to when the common balance used in this case to weigh the contraband was certified by the Legal Metrology department. PW1 also could not state about the period up to which the certificate was issued for the above said common balance by the Legal Metrology department. The evidence of PW1 would show that the weighing balance Crl.A.4/2009 : 6 :
used in this case was having two pans, each pan having a diameter of six inch each. The contraband in this case was not weighed by any scientific expert.
8. PW2 was an independent witness who supported the prosecution case in all material aspects. However, PW2 did not see the weighing of the contraband. The contraband seized in this case was 1 Kg. 50 gram. 1000 gram of ganja comes under the small quantity under the Act. There was 50 gm. of ganja in excess. Since there is no convincing evidence with regard to the accuracy of the balance, I am of the view that the benefit of doubt with regard to the quantity involved in this case can be granted to the appellant and the case of the appellant can be brought within the ambit of small quantity punishable Crl.A.4/2009 : 7 :
under Section 20(b)(ii)(A) of NDPS Act and accordingly, I order so. I have gone through the evidence of PW1, PW2, PW3 and PW6 and I am satisfied that their evidence with regard to the seizure of the contraband, sampling and the arrest of the accused is natural and convincing and hence acceptable. There is no allegation that the above said witnesses had any ill-motive to falsely implicate the appellant in a case like this. Having gone through the evidence on record, I am satisfied that the evidence with regard to the seizure of the contraband from the possession of the appellant on 29.2.2008 at 3.20 p.m., by PW1 and PW6 can be safely acted upon to convict the appellant. However, I am of the view that the section of offence can be altered to Section 20(b)(ii)(A) of the NDPS Act as Crl.A.4/2009 : 8 :
already mentioned above. The appellant had already undergone detention in connection with this case from 29.2.2008 to 2.4.2008. Therefore, the appellant can be sentenced to imprisonment to the period of detention already undergone by him and a fine of Rs.10,000/-
(Rupees ten thousand only) under Section 20(b)(ii)(A) of the NDPS Act to meet the ends of justice and accordingly, I order so. In default of payment of fine, the appellant shall undergo imprisonment for one month.
In the result, this Crl. Appeal stands allowed in part, as above.
The appellant shall appear before the court below on 1.3.2016 to suffer the sentence.
SD/ B.SUDHEENDRA KUMAR, JUDGE dl/.6.1..2016 // True Copy // PA to Judge