Kerala High Court
Biju @ Koppara Biju vs State Of Kerala on 10 January, 2018
Author: P.Ubaid
Bench: P.Ubaid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
THURSDAY, THE 5TH DAY OF APRIL 2018 / 15TH CHAITHRA, 1940
CRL.A.No. 79 of 2018
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AGAINST THE JUDGMENT IN SC 160/2016 of ADDL.SESSIONS COURT-I,
MAVELIKKARA DATED 10-01-2018
CRIME NO. 8/2015 OF CHENGANNUR EXCISE RANGE OFFICE, ALAPPUZHA
APPELLANT/ACCUSED :-
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BIJU @ KOPPARA BIJU,
S/O.RAJAN, ODUMPOLLIL VEETTIL,
EREZHA NORTH MURI,
KUNNAMANGALAM VILLAGE, MAVELIKARA TALUK.
BY ADVS.SRI.JOHN BRITTO
SRI.C.A.RAJEEV
RESPONDENT/COMPLAINANT :-
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STATE OF KERALA,
REPRESENTED BY CIRCLE INSPECTOR OF EXCISE,
RANGE OFFICE CHENGANNUR IN NDPS CR.NO.8/2015,
THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SMT.SREEJA V., PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-04-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
rkj
P.UBAID, J.
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Crl.Appeal No.79 of 2018
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Dated this the 5th day of April, 2018
JUDGMENT
The appellant herein is the sole accused in S.C. No. 160 of 2016 of the Court of Session, Alappuzha. He faced prosecution before the learned Additional Sessions Judge-I, Mavelikkara (Special Judge for NDPS Cases) under Section 20(b)(II)(B) of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) on the allegation that at about 5.00 p.m. on 10.07.2015, he was found possessing 1.250 kgs of ganja at Chengannur. The offence was detected by the Excise Inspector of the Chengannur Excise Range. He arrested the accused on the spot after complying with the procedural requirements under Section 50 of the NDPS Act, and seized the contraband articles as per a mahazar. Without delay, the accused and the properties were produced in court. Investigation was taken over by an Excise Inspector attached to the Chengannur Excise Crl.Appeal No.79 of 2018 2 Circle, and he submitted final report in court.
2. The accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against him under Section 20(b)(II)(B) of the NDPS Act. The prosecution examined six witnesses, and proved Exts.P1 to P14 documents in the trial court. The MO1 to MO4 properties were also identified during trial.
3. When examined under Section 313 Cr.P.C., the accused denied the incriminating circumstances, and projected a defence that he was in fact taken into custody by the excise officials at Palakkad, and a false case was foisted against him by using some quantity of ganja procured from somewhere for the reason that his wife had made a complaint against the Excise Inspector. The accused examined his wife in defence as DW1, and also proved Exts.D1 to D3 documents.
4. On an appreciation of the evidence, the learned trial Judge found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for five years, and to pay a fine of Crl.Appeal No.79 of 2018 3 Rs.1 lakh by judgment dated 10.01.2018. Aggrieved by the judgment of conviction, the accused has come up in appeal.
5. When this appeal came up for hearing, the learned counsel submitted that the prosecution does not have any consistent case as regards the exact time at which the offence was detected, and that the whole prosecution case is doubtful. The learned counsel also submitted that this false case was brought against the accused only because the wife of the accused had made a complaint against the Excise Inspector.
6. Of the six witnesses examined in the trial court, PW1 is the Excise Inspector who detected the offence, and PW5 is the Excise Civil Officer, who assisted PW1 in the process of detection. PW2 examined as independent witness turned hostile. PW3 is the Village Officer who prepared the scene plan. PW4 is the Excise Circle Inspector in whose presence the body of the accused was searched by PW1 under Section 50 of the NDPS Act, and PW6 is the Excise Inspector attached to the Excise Circle who conducted investigation, and Crl.Appeal No.79 of 2018 4 submitted final report.
7. PW1 and PW5 have given convincing and satisfactory evidence proving the detection of offence in this case. Their evidence is that during usual patrol at Chengannur, in the evening on 10.07.2015, they saw the accused carrying a plastic carry bag in his hands on the public road at Chengannur near the Raj International Hotel. On seeing the excise party, the accused made an attempt to escape, but he was immediately intercepted by the Excise Inspector. When the Excise Inspector examined the plastic carry bag, he found a packet therein. When he opened it, he found some quantity of dry ganja in the packet. Finding the necessity of conducting body search of the accused, PW1 told the accused about his right to be searched in the presence of a gazetted officer or a judicial Magistrate. When the accused insisted on the presence of a gazetted officer, PW1 gave a request to the Excise Circle Inspector immediately, and within a few minutes, the Excise Circle Inspector reached the spot. In the presence of the Excise Circle Inspector, the body of the accused was searched, Crl.Appeal No.79 of 2018 5 but nothing was seized on body search. However, the packet of ganja seen carried by the accused in the plastic carry bag was seized as per a mahazar, and the accused was arrested on the spot. The required samples were also collected from the total quantity of ganja. When he weighed the total quantity, it was found having a weight of 1.250 kgs. PW1 and PW5 are consistent, and they are definite on factual aspects as regards the process of detection, and the arrest of the accused. I find no reason to disbelieve them, or to reject their evidence. Just because PW1 is an official, or just because PW5 is the subordinate officer of PW1, their evidence cannot be doubted by the court, and their evidence cannot be casually or mechanically rejected, if the evidence is otherwise acceptable and worthy of credence. The learned counsel cited a decision of the Honourable Supreme Court in Kishan Chand v. State of Himachal Pradesh (2018 (1) SCC 222) where the Honourable Supreme Court held that in the absence of examination of the independent witnesses, the evidence given by the official witnesses will have to be thoroughly Crl.Appeal No.79 of 2018 6 scrutinized with great care by the court. The Honourable Supreme Court also held that the harsher is the punishment, the more is the strictness of proof required from prosecution. However, the Honourable Supreme Court also held that the testimony of the official witnesses cannot be rejected on the ground of non- corroboration by independent witnesses if that evidence is otherwise worthy of credence and acceptable. In this case, I find no reason to suspect the evidence given by PW1 and PW5, or to reject their evidence. The two witnesses have given evidence proving the seizure of a packet of ganja from the hands of the accused, and also proving the procedural formalities including the compliance of Section 50 of the NDPS Act, and also the collection of sample from the total quantity of ganja.
8. The evidence of PW1 and PW5 is clear as regards the process of collection of samples. The samples were produced in court, and sent for analysis. On analysis, the material contained in the sample was identified as ganja. PW1 has given satisfactory evidence that the sample was collected from the total quantity of Crl.Appeal No.79 of 2018 7 ganja seized from the hands of the accused. The remaining quantity of ganja contained in the packet was also well identified by him during trial.
9. This is not a case where Section 42 of the NDPS Act is applicable. In fact, Section 50 of the NDPS Act is also not applicable in this case because, the contraband article was not seized on body search. It was contained in a packet carried by the accused in his hands in a plastic carry bag. Thus, this is simply a case of seizure from the hands of the accused. Anyway, finding the necessity of compliance of Section 50 of the NDPS Act, PW1 informed the accused of his precious right to be searched under Section 50 of the NDPS Act in the presence of a gazetted officer, or a Magistrate. When so informed, the accused wanted the presence of a gazetted officer, and accordingly, the Ext.P13 requisition was given by PW1 to the Excise Circle Inspector. PW4 is the Excise Circle Inspector in whose presence the body of the accused was searched by PW1. Seizure of ganja from the possession of the accused is well proved by the evidence of PW4 also. PW4 proved Crl.Appeal No.79 of 2018 8 the Ext.P13 requisition received by him from PW1. It stands well proved that PW1 had well complied with Section 50 of the NDPS Act. I find no reason to suspect the evidence of PW4, or to reject his evidence regarding compliance of Section 50 of the NDPS Act, and the seizure of ganja from the possession of the accused.
10. Ext.P5 is the report sent by PW1 to his superior officer under Section 57 of the NDPS Act. This report contains all the required details like the name and details of the accused, the time of detection, the time of arrest, the nature and descriptions of the contraband article seized, the compliance of the procedural formalities, collection of samples etc.. No question was asked by the defence to PW1 regarding the Ext.P5 report. I find that Section 57 of the NDPS Act was also well complied with by PW1.
11. The learned counsel for the appellant submitted that there is some inconsistency and suspicion in this case regarding the actual time of arrest. Ofcourse, it is true that the time is seen differently stated in different documents. However, the defence Crl.Appeal No.79 of 2018 9 got it explained by PW1 in cross-examination as to when exactly the accused was seen by the Excise team, when exactly the contraband article was seized, and when exactly the accused was arrested. PW1 well explained in cross-examination that the accused was seen at about 5.00 p.m. on the public road, that PW4 reached the spot at about 5.10 p.m., and the accused was arrested in between 5.15 p.m. and 5.20 p.m. The time shown in the detection mahazar is 5.20 p.m. It is explained that this is the time at which PW1 started preparation of the mahazar. Ofcourse, it is true that the Ext.P13 requisition does not contain the time at which the accused was taken into custody. Something is seen erased in this. But curiously note no question was asked about this to PW1 or PW4 by the defence.
12. Ext.P6 is the statement given by the accused under Section 67 of the NDPS Act. It is well settled that such a statement is admissible in evidence. This statement was proved by PW1 during trial. He also explained that before giving such a statement the accused was cautioned that such a statement would be Crl.Appeal No.79 of 2018 10 used against him during trial. It is pertinent to note that nothing was asked by the defence in cross-examination to PW1 regarding the Ext.P6 statement recorded by him under Section 67 of the NDPS Act. I find that the Ext.P6 statement also is well proves the prosecution case.
13. The defence case is that this is a false case foisted by the Excise Inspector due to the personal enmity, or because the wife of the accused had made a complaint against him. DW1 is the wife of the accused. Her evidence is that she had made a complaint against the accused. The defence case is that the accused was in fact taken into custody at Palakkad along with PW2, and by utilising some quantity of ganja procured from somewhere this false case was foisted. It is not known when exactly, or on what date the accused was taken into custody at Palakkad. DW1 claims to have made a complaint against the accused. But the copy of the complaint is not seen produced in Court. It is not known what are the contents of the said complaint, or what happened to the said complaint. I find that the evidence given by DW1 will not in any manner probabilise the Crl.Appeal No.79 of 2018 11 defence case regarding his arrest at Palakkad, or that this is a false case foisted against him.
14. As discussed above, I find that the prosecution case stands well proved by the evidence of PW1, PW4 and PW5. It is true that all these witnesses are official witnesses, and there is no independent corroboration. But on an examination of the entire evidence, I find that there is no reason to reject their evidence or suspect their evidence. The officials have proved the compliance of the statutory requirements under Sections 50 and 57 of the NDPS Act, and the prosecution case is further proved by the statement given by the accused under Section 67 of the NDPS Act. I find no reason for interference in the findings and the conviction made by the trial court.
15. Now the question of sentence. The quantity of ganja involved in this case is 1.250 Kgs. Though it was submitted before this Court when the application for suspension of sentence came up for consideration, that the accused is involved in other crimes, no such material was placed before the trial Crl.Appeal No.79 of 2018 12 court by the prosecution. It is not known what are the other cases, or what are the facts of the other cases. The prosecution did not produce any material to prove that the accused is not a first offender, or that there is some other conviction to his credit under the NDPS Act. The sentence imposed by the trial court is rigorous imprisonment for five years, and a fine of Rs.1 lakh. On a consideration of all the relevant aspects including the age and the circumstances of the accused, I find the necessity of reducing the sentence appropriately. I feel that rigorous imprisonment for eighteen months, and a fine of Rs.10,000/- will be the adequate and reasonable sentence in this case.
In the result, the conviction against the appellant under Section 20(b)(II)(B) of the NDPS Act in S.C.No.160 of 2016 of the Court of Session, Alappuzha is confirmed, and the appeal is disposed of accordingly. However, the jail sentence imposed by the trial court will stand reduced to rigorous imprisonment for eighteen (18) months, and the fine sentence will stand reduced to an amount of Rs.10,000/-. Accordingly, the default Crl.Appeal No.79 of 2018 13 sentence also will stand reduced to rigorous imprisonment for three months. The appellant will get the benefit of set off as already ordered by the trial court.
Forward a copy of this judgment without delay to the Superintendent of the jail where the appellant has been undergoing sentence.
Sd/-
ds/rkj P.UBAID, JUDGE