Kerala High Court
Shibu vs State Of Kerala - Represented By on 7 April, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
WEDNESDAY, THE 24TH DAY OF SEPTEMBER 2014/2ND ASWINA, 1936
CRL.A.No. 666 of 2004 (A)
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AGAINST THE ORDER/JUDGMENT IN SC 420/2001 of IST ADDL.DISTRICT COURT,
THRISSUR DATED 07-04-2004
APPELLANT/ACCUSED::
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SHIBU,
S/O. CHUNDANGAPARAMBIL SRIDHARAN, MUNI NAGAR,
KANAKAMALA PAZHAMBILLY DESOM, KODAKARA VILLAGE.
BY ADVS.SRI.P.VIJAYA BHANU
SMT.P.MAYA
RESPONDENT/COMPLAINANT::
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STATE OF KERALA - REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.K.K.RAJEEV
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
24-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K. RAMAKRISHNAN, J.
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Crl.A.No.666 of 2004
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Dated this the 24th day of September, 2014.
JUDGMENT
The accused in S.C.No.420/2001 on the file of the First Additional Sessions Judge, Thrissur is the appellant herein.
2. The appellant was charge sheeted by the Circle Inspector of Excise, Excise Enforcement and Anti Narcotic Special Squad, Thrissur in Crime No.11/1999 under Section 20(b)(1) of Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the NDPS Act) stood prior to amendment.
3. The case of the prosecution in nutshell was that, on 25.10.1999 at about 5 p.m, the appellant was found to be in possession of 3.500 kgs of Ganja near Jaya Bharath Engineering Works at T.B. Raod in Kokkail desom at Thrissur in violation of the provisions of the NDPS Act.
4. After investigation, final report was filed before the Sessions Court, which was taken on file as S.C.No.420/2001, and thereafter, it was made over to the First Additional Sessions Court, Thrissur for disposal.
5. When the appellant appeared before the court, after hearing the counsel for the appellant as well as the Additional Public Prosecutor of that court, charge under Sections 8 and 20 Crl.A.No.666 of 2004 2
(b)(ii)B of the NDPS Act was framed and the same was read over and explained to him and he pleaded not guilty.
6. In order to prove the case of the prosecution, Pws 1 to 5 were examined, Exts.P1 to P13 and MOs 1 to 4 were marked on the side of the prosecution. After closure of the prosecution evidence, the accused was questioned under Section 313 of the Code of Criminal Procedure (hereinafter referred to as the Code) and he denied all the incriminating circumstances brought against him in the prosecution evidence. He had further stated that he had not committed any offence and he is innocent of the same and he has been falsely implicated in the case as he did not co-operate with the excise officials about giving of information regarding some persons, who were engaged in the sale of arrack and he was taken to the excise office and he has been falsely implicated in the case. Since evidence in this case do not warrant acquittal under Section 232 of the Code, the Additional Sessions Judge directed the appellant to enter on his defence, but no defence evidence was adduced on his side. After considering the evidence on record, the court below found the appellant guilty under Sections 8 and 20(b)(ii)B of the NDPS Act and convicted thereunder and sentenced him to undergo rigorous imprisonment for 4 years and also to pay a fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for one year more. Set off was allowed for the period of detention Crl.A.No.666 of 2004 3 already undergone by him under Section 428 of the Code. Aggrieved by the same, the present appeal has been preferred by the appellant/accused before this Court.
7. Heard the counsel for the appellant and the learned Public Prosecutor.
8. The learned counsel for the appellant submitted that the detecting officer, CW1 has not been examined. However, the evidence of Pws 1 to 4 is contradictory to each other regarding the place of detection, the manner in which detection and seizure were made etc. However, there is no explanation forthcoming from the side of the prosecution regarding non production of material objects immediately after seizure but on the next day. So it cannot be said that the prosecution has proved beyond reasonable doubt that the appellant was arrested along with the contraband articles. Further, there is no strict compliance of Section 50 of the NDPS Act. Mere asking of his right alone is not sufficient. Further, in the chemical analysis report, the quantity of sample shows that the sample was having a weight of 21.5 grams, whereas the evidence of prosecution witnesses will go to show that 25 grams was taken as sample. There is no explanation forthcoming from the side of the prosecution regarding the discrepancy in the weight of the sample said to have been taken and the weight shown in the chemical analysis report and that also gives an indication that the article said to Crl.A.No.666 of 2004 4 have been seized from the possession of the appellant is not the same articles that has reached the court and the lab so as to come to the conclusion that the chemical analysis report relates to that article alleged to have been seized from the possession of the appellant so as to convict him for the said offence and the lower court was not justified in convicting the appellant for the offence alleged. He had also submitted that the incident happened prior to the amendment and at that time there is no classification of the offence on the basis of quantity. The court charge will go to show that he has been directed to face the charge under Section 20(b)(ii)B of the Act which was not in existence at the time when the offence said to have been committed. So under the circumstances the entire trial is vitiated and he is entitled to get an acquittal.
9. On the other hand, the Public Prosecutor argued that Ext.P1 will go to show that CW1 is not in a position to give evidence and he could not be examined before court on account of his illness and Pws 1, 2 and 4 are the persons, who accompanied CW1 and witnessed the entire seizure and arrest of the accused. Further, PW3 is an independent witness, who proved the seizure as well and the investigation was conducted by PW5. Further, the evidence will go to show that Section 50 has been complied with and it was given in writing and the reply has also been obtained and there is nothing brought out to Crl.A.No.666 of 2004 5 discredit the evidence of witnesses regarding the seizure and arrest of the appellant with the contraband article. The discrepancy in the weight was because of further drying of the ganja. It is the natural process. In view of the fact that the article was produced before court without delay and without tampering, any discrepancy in the weight alone will not be sufficient to doubt the genuineness of the prosecution case. Further, as per Section 41 of the NDPS (Amendment Act), 2001, it has been specifically mentioned that the pending cases will have to be tried as per the Amendment Act, but if the punishment is less, then if he is found guilty, the punishment can be provided as provided under the Principal Act as amended and not under the unamended Act, but this will not be applicable to case pending in appeal. So the court below was perfectly justified in framing charge under the present Act and not prejudice has been caused to the appellant on account of the same. So, according to the Public Prosecutor, the lower court was perfectly justified in convicting the accused for the offence alleged.
10. The points that arise for consideration are: (1) Whether the court below was justified in convicting the appellant for the offence under Section 20(b)(ii)B of the NDPS Act, (2) if so, the sentence imposed is proper and legal.
11. Point No.1: The case of the prosecution as emerged from the prosecution witnesses was that on 25.10.1999 at about 5 Crl.A.No.666 of 2004 6 p.m while CW1 along with Pws 1, 2 and 4 and other officials were doing patrol duty at T.B. Road, Kokkail in Thrissur and when reached near Jaya Bharath Engineering Works, they saw the appellant standing on the side of the road with MO2 big shopper bag in his hand and on seeing the excise party, he tried to go away from that place. So, they stopped the vehicle near him and asked his name and address. Thereafter, CW1 informed the appellant that they wanted to conduct his body search and he himself is a Gazetted Officer and apprised his right to get himself examined by another Gazetted Officer or a Magistrate as provided under Section 50 of the NDPS Act and he had given Ext.P4 notice in writing to him stating these facts and the accused told him that it was not necessary and the search can be conducted by CW1 himself and he had given reply in writing to that extent in Ext.P4 itself. Thereafter in the presence of independent witnesses, PW3 and another, they have conducted their body search and prepared Ext.P3 and after convincing the appellant that there is no incriminating article in their possession, took MO2 big shopper bag from the appellant and found that it contained a packet and on examination of the same, they found that it was Ganja. He took some portion of the Ganja and on examining the same he was satisfied that it was Ganja and he convinced the same to the witnesses as well. Thereafter he weighed the entire Ganja with the paper and Crl.A.No.666 of 2004 7 had found that it is having a total weight of 3.660 kgs and when he weighed the Ganja alone, he found that it was having a weight of 3.500 kgs and thereafter he took 25 gms as sample and sealed the same after tied the same with twine, affixed the label containing signatures of the witnesses, himself and the appellant and thereafter he packed the remaining Ganja in the same fashion which is identified as MO1 in the court. Thereafter he conducted body search of the accused and found MO3 cash of Rs.17/-. Thereafter he seized MOs 1 to 4 as per Ext.P2 mahazer in the presence of witnesses. He arrested the appellant and prepared Ext.P5 arrest memo and gave Ext.P7 notice of arrest to the relatives through PW4. Thereafter he came to the excise office along with the appellant and the contraband article seized and registered Ext.P6 crime and occurrence report as NDPS CR.No.11/1999 of Excise Enforcement and Anti Narcotic Special Squad, Thrissur under Section 20(b)(ii)B of the NDPS Act and he had sent Ext.P8 intimation of the arrest and seizure to the higher authorities. He prepared Ext.P11 property list and sent the articles to court along with Ext.P10 forwarding note with a request to send the sample for analysis and it was sent from court and Ext.P13 Chemical Analysis Report was obtained which showed that the article seized was Ganja. The investigation in this case was conducted by PW5. He went to the place of occurrence and Crl.A.No.666 of 2004 8 prepared Ext.P9 scene mahazer in the presence of the witnesses and also Ext.P12 sketch plan and questioned the witnesses and completed the investigation and filed final report.
12. It is true that CW1, the Detecting Officer, was not examined in the case. But PW1 had deposed that CW1 was suffering from serious illness and he is unable to give evidence and he can identify the handwriting and signature of CW1 as he worked with him for quite long time and marked Ext.P1 medical certificate to show that CW1 was not in a position to give evidence as he is suffering from Castle men's disease and bilateral emphysema and he was under best rest and he is not able to give evidence. So non examination of CW1 is not fatal in the case as he could not be examined in court on account of his illness.
13. PW1 is the preventive Officer attached to the same Squad of which CW1 is the leader. He had categorically stated that he accompanied CW1 along with PWs 2 and 4 and when they reached near Jaya Bharath Engineering Works at T.B. Road in Kokkail, they saw the appellant standing with MO2 big shopper bag in his hand. On seeing them, he tried to move away from that place. So they stopped him and they informed him that they wanted to conduct his body search and apprised his right to ask for the presence of a Gazetted Officer or a Magistrate as provided under Section 50 of the NDPS Act to conduct his body Crl.A.No.666 of 2004 9 search and gave Ext.P4 notice in writing and the appellant had stated that he does not want the same and it can be done by CW1 himself and it was written by him in Ext.P4. Thereafter, they have conducted their body search to show that they do not have any incriminating article with them and then took MO1 big shopper bag from the hands of the appellant in the presence of PW3, the independent witness. Thereafter, he examined the contents of the packet found in MO2 big shopper bag and convinced that it was Ganja and thereafter he weighed the Ganja and found that it was having a weight of 3.500 kgs. Thereafter, he took 25 gms as sample, packed and sealed the same and affixed the label containing signature of CW1, witnesses and the appellant. He had packed the remaining Ganja also in the same fashion and he had conducted body search of the accused and found Rs.17/- (MO3 series) in his shirt pocket. He had packed MO2 big shopper bag also in the same manner. Thereafter, he seized the same as per Ext.P2 mahazer in the presence of witnesses.
14. Pws 2 and 4, the official witnesses, also corroborated with the evidence of PW1 in this aspect. Pws 2 and 4 have stated that the appellant was arrested from the spot and Ext.P5 arrest memo was prepared and Ext.P7 notice recording arrest was given to the relatives. Thereafter, all of them came to the excise office and the crime was registered. PW3, the independent Crl.A.No.666 of 2004 10 witness, also supported the case of the prosecution and he had admitted his presence at the time when seizure was effected from the possession of the appellant and also admitted the signature in Ext.P2 mahazer and the label seen on MO4 sample, which was received after Chemical Analysis and MO1 Ganja packet seized as per Ext.P2. Though an attempt was made by cross examining witnesses to bring out some discrepancy regarding the place of detection, a reading of their evidence will go to show that those discrepancies will not affect the credibility of the detection as such discrepancies are likely to occur when they were examined after the lapse of long time. Though the appellant had a case that he has been falsely implicated, since he failed to give information regarding certain persons, who were engaged in abkari offences as requested by the excise officials, he has been falsely implicated, no independent evidence was adduced on the side of the accused to prove this fact. So, under the circumstances the court below was perfectly justified in coming to the conclusion that the prosecution has proved beyond reasonable doubt that the accused was found to be in possession of 3.500 kgs of Ganja and he was arrested from the spot and the seizure was legal and it was effected after complying with Section 50 of the NDPS Act.
15. The evidence of Pws 1 and 5 will go to show that articles seized were produced by CW1 in court on the next day i.e, Crl.A.No.666 of 2004 11 26.10.1999. There was no delay in producing the article as well. Ext.P13 Chemical Analysis Report will go to show that the seal was intact and the seal tallied with the sample seal provided as well. That also will go to show that it was produced before the Chemical Analysis Lab also without tampering and there is no possibility of tampering as well. Ext.P13 will go to show that the article seized is Ganja. It is true that in Ext.P13 the weight of the sample was shown as 21.5 grams. It may be mentioned here that even at the time when the article was seized, it was in a dried condition. Further drying and evaporation of moisture found in the Ganja cannot be ruled out and that may be the reason for the reduction of weight seen at the time when it was weighed from the laboratory. Further, weighing was done by the officials from open space and in a laboratory the weighing will be done in an accurate manner. So, possibility of some difference in the weight seen in the seizure mahazer and in the Chemical Analysis Report will be possible in such circumstances and that cannot be taken as a ground to come to the conclusion that the article seized was not the article that was produced in court and reached the Laboratory and the Chemical Analysis Report do not relate to that sample. So, under the circumstances, the court below was perfectly justified in coming to the conclusion that the prosecution was perfectly proved beyond reasonable doubt that the accused was found to Crl.A.No.666 of 2004 12 be in possession of 3.500 kg of Ganja in violation of the provisions of the Abkari Act.
16. It is true that the offence was committed on 25.10.1999. At that time there is no categorization of offence on the basis of quantity of psychotropic substances or the drug seized. Such a categorization was done only after the amendment in the year 2001.
17. The counsel for the appellant submitted that charge was framed as per the Amendment Act which is not proper. But that submission has no substance in view of Section 41 of the NDPS Amendment Act, 2001 which reads as follows:
41.Application of this Act to pending cases: (1) Notwithstanding anything contained in sub-section (2) of section 1, all cases pending before the courts or under investigation at the commencement of this Act shall be disposed of in accordance with the provisions of the principal Act as amended by this Act and accordingly, any person found guilty of any offence punishable under the principal Act, as it stood immediately before such commencement shall be liable for a punishment which is lesser than the punishment for which he is otherwise liable at the date of the commission of such offence;:
Provided that nothing in this section shall apply to cases pending in appeal.
(2) For the removal of doubts, it is hereby declared that no act or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this Act has not come into force".
18. So, it is clear from the above, for the pending case also, the Amendment Act will be applicable, but subject to the Crl.A.No.666 of 2004 13 punishment provided, as it stood as per the Amendment Act if it is lesser in nature as per the present Act but it is not applicable cases pending in appeal. So the court below was perfectly justified in framing charge under the present Act as the quantity found is intermediary quantity, which is more than small quantity but less than the commercial quantity which will be an offence under Section 20(b)(ii)B of the NDPS Act. So the court below was perfectly justified in convicting the appellant for the offence under Section 20(b)(ii)B of the NDPS Act and the finding does not call for interference.
19. Point No.2:
The learned counsel for the appellant submitted that the sentence imposed is harsh and he is a first offender and there is no other crime registered against the appellant and he is now leading a good life with his family and he was under custody for nearly 100 days. So he prayed for some leniency.
20. This was opposed by the Public Prosecutor.
21. The Supreme Court, while considering the sentencing policy, has categorically stated that the sentence must be in commensurate with the gravity of the offence and its impact on the society, and showing unnecessary leniency while providing sentence as well give a wrong message to the society. NDPS Act deals with punishment for possession and sale of Narcotic Drug or Substance. Further, the offence being committed by persons Crl.A.No.666 of 2004 14 for their personal gain ignoring the impact of their act on the younger generation of the society and the ill effect that is likely to be caused in a person who consumes these articles. So, under the circumstances, showing unnecessary leniency in imposing sentence will give a wrong message as well. But the offence was committed prior to the amendment and at that time the maximum punishment provided for possession of Ganja is 5 years and fine of Rs.50,000/-, that can be taken into consideration while imposing sentence and so considering the circumstances and also the age of the accused and that there is no case for the prosecution that he had involved in any other crime, but at the same time considering the quantity, this Court feels that imposing rigorous imprisonment for one year and also to pay a fine of Rs.50,000/-, in default, to undergo rigorous imprisonment for one year will be sufficient punishment and that will meet the ends of justice. So, the substantive sentence of four years rigorous imprisonment and also to pay a fine of Rs.10,000/-, in default to undergo rigorous imprisonment for one year more is set aside and the same is modified as follows:
The appellant is sentenced to undergo rigorous imprisonment for one year and also to pay a fine of Rs.50,000/-, in default, to to undergo rigorous imprisonment for one year. The point is answered accordingly.
In the result, the appeal is allowed in part. The order of Crl.A.No.666 of 2004 15 conviction passed by the court below against the appellant under Section 20(b)(ii)B of the NDPS Act is hereby confirmed. But, the sentence of 4 years rigorous imprisonment and fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for one year is set aside and the same is modified as follows:
The appellant is sentenced to undergo rigorous imprisonment for one year and also to pay a fine of Rs.50,000/-, in default, to undergo rigorous imprisonment for one year more. Set off is allowed for the period of detention already undergone by him in this case.
Office is directed to communicate this judgment along with the back records to the court below at the earliest.
Sd/-
K. RAMAKRISHNAN, JUDGE.
cl /true copy/ P.S to Judge Crl.A.No.666 of 2004 16