1. This appeal is at the instance of the sole accused in S.C.No.61/2012 on the files of the Special Court under the Narcotic Drugs and Psychotropic Substances Act (for short, ‘the NDPS Act’ hereinafter) Cases, and he impugns the judgment dated 15.06.2015 in the above case.
2. Heard the learned counsel for the appellant/accused as well as the learned Public Prosecutor. Perused the judgment under challenge along with the records of the Special Court.
3. In this matter, the appellant/accused was charged for the offence punishable under Section 20(b)(ii)(B) of the NDPS Act, when he was found in possession of 1.250 Kg of ganja against the prohibitions contained in the NDPS Act, at 4.00 p.m. on 13.04.2012.
4. The Special Court recorded evidence on completing pre-trial formalities. During trial, PW1 to PW6 were examined and Exts.P1 to P12 and MO1 to MO5 were marked on the side of the prosecution. No defence evidence was adduced.
5. The learned Special Judge, on appreciation of evidence, found that the appellant/accused committed offence punishable under Section 20(b)(ii)(B) of the NDPS Act and accordingly, he was sentenced as under:
“In the result, the accused is sentenced to undergo Rigorous Imprisonment for a period of two years and to pay a fine of Rs.20,000/-for the offence punishable u/s.20(b)ii(B) of NDPS Act. In default of payment of fine, the accused shall undergo simple imprisonment for a further period of two months. The accused was in custody from 14.4.2012 to 23.7.2012. The period of remand of the accused shall be set off u/s.428 Cr.P.C. MO1 will be destroyed as per the Circular No.1/2001 of the Hon'ble High Court of Kerala. MOs.2 to 5 being valueless shall be destroyed after the period of appeal is over.”
6. The learned counsel for the appellant would submit that going through the verdict impugned on par with the evidence available, the same is insufficient to sustain the conviction. But the learned counsel miserably failed to point out any sustainable contention to upset the verdict. When this aspect is brought to the notice of the learned counsel, he would submit that, if no valid grounds available to unsustain the verdict, in the matter of sentence, maximum leniency may be shown to reduce the sentence.
7. The learned Public Prosecutor seriously opposed interference in the conviction, while conceding reasonable reduction in sentence, taking note of the seriousness of the offence found to be convicted.
8. Adverting to the rival arguments, the points arise for consideration are;
(i) Whether the Special Court was right in holding that the appellant/accused committed offence punishable under Section 20(b)(ii)(B) of the NDPS Act?
(ii) Whether the verdict would require interference?
(iii) The order to be passed?
Point Nos.(i) to (iii)
9. Here, in order to prove the occurrence, prosecution examined PW1, Sub Inspector of Police, Nilambur supported by the evidence of PW4. PW1 deposed that on 13.04.2012, at about 3.45 p.m., while he was on duty at his office, he received a telephone message that a person was indulging in the sale of ganja by sitting on a culvert near Urvasi Park on Rajiv Gandhi Bye-pass Road, Nilambur. PW1 stated that he recorded the said information in the General Diary and prepared a report in compliance with Section 42 of the NDPS Act, which was forwarded to his superior officer, the Circle Inspector of Police, Nilambur, through CPO No.5123. The said report was marked as Ext.P1. Thereafter, PW1, along with PW2, the Senior Civil Police Officer of Nilambur Police Station, and the police party proceeded to the place of occurrence in the departmental jeep. On reaching the spot, they saw a person answering the description contained in the information sitting on the culvert on Rajiv Gandhi Bye-pass Road carrying a maroon-coloured big shopper. On seeing PW1 and the police party, he became perplexed and attempted to escape from the spot. PW1 and the police party intercepted him and interrogated him. During interrogation, the accused disclosed his name and address. PW1 introduced himself to the accused and informed him that he had reached the spot on receiving information that the accused was carrying ganja. Thereafter, PW1 asked the accused whether he required the presence of a Gazetted Officer or a Magistrate for conducting his body search and also informed him of his right to have the body search conducted in the presence of such officer. The accused replied in the negative and stated that there was no need for the presence of a Gazetted Officer or a Magistrate and that he was willing to be searched by PW1. Thereafter, after satisfying the accused, and after subjecting himself to a body search before the witnesses, Liyakath Ali and Sakkeer Hussain, to demonstrate that he was not carrying any incriminating articles, PW1 searched the bag carried by the accused. On searching the big shopper, PW1 found ganja concealed in a blue-coloured plastic cover. Thereafter, PW1 arrested the accused at the spot. Ext.P2 identified as the arrest memo and Ext.P3 identified as the inspection memo prepared at the time of the arrest of the accused. PW1 informed the father of the accused about the arrest by issuing a notice as Ext.P4. PW1 then weighed the ganja found in the bag carried by the accused using an electronic weighing balance brought by the police party in the investigation kit, and its weight was found to be 1.250 kg. PW1 thereafter drew three samples of ganja weighing 50 grams each in separate plastic covers. The plastic covers were separately wrapped with brown paper, tied and sealed after inserting signed slips bearing the signatures of the accused, the witnesses and PW1. After drawing the samples, the remaining 1.100 kg of ganja was kept in a plastic cover, similarly wrapped with brown paper, tied and sealed, and was marked as MO1. The blue-coloured plastic cover used for concealing the ganja inside the big shopper was also seized and marked as MO2. The maroon-coloured big shopper used for carrying the ganja was seized and marked as MO3. PW1 also seized the shirt and dhoti worn by the accused at the time of detention after providing him with another set of clothes. The shirt and dhoti were marked as MO4 and MO5 respectively. All the material objects were seized as per Ext.P5 seizure mahazar. Thereafter, PW1 brought the accused and all the material objects to Nilambur Police Station at about 5.30 p.m. and registered Crime No.325 of 2012 for the offence punishable under Section 20(b)(ii)(B) of the NDPS Act. The First Information Report was marked as Ext.P6. PW1 further deposed that he prepared a detailed report regarding the detection of the offence in compliance with Section 57 of the NDPS Act and forwarded the same to his superior officer. The said report was marked as Ext.P7. Ext.P8 property list was also marked through PW1.
10. PW4, an occurrence witness to the incident, deposed that he was residing at Vadapuram. PW4 further deposed that on 13.04.2012, at about 4.00 p.m., he witnessed the police intercepting the accused on the Bye-pass Road leading from Nilambur to the Market and seize ganja from the big shopper carried by the accused. He further deposed that the police weighed the ganja and found its weight to be 1.250 kg. Thereafter, the police drew three samples of the ganja, packed them separately, and also packed the remaining quantity of ganja after seizure. PW4 deposed that he signed Ext.P5 seizure mahazar as a witness. He identified his signature in Ext.P5 and also identified the accused in the dock as the person apprehended by the police at the spot.
11. PW2, the Senior Civil Police Officer of Nilambur Police Station, who was present along with PW1 at the time of detection, also deposed in tune with the evidence of PW1. PW2 identified the accused in the dock as the person who was arrested at the spot with the contraband. The evidence of PW1, coupled with that of PW2 and PW4 would clearly show that the accused was in possession of 1.250 Kg of ganja and that all the material objects seized were properly packed, sealed and labelled. Ext.P11 report, read along with the evidence of PWs 1 and 2 and further would show that the seals on the material objects forwarded to the Regional Forensic Science Laboratory, Thrissur, were found intact and that the parcel containing the material objects was sealed with a seal impression corresponding to the specimen seal impression forwarded along with the forwarding note.
12. In this case, the report prepared by PW1 in compliance with Section 42 of the NDPS Act, marked as Ext.P1, was forwarded to the Circle Inspector of Police, who was examined as PW6. Both PW1 and PW6 identified and admitted Ext.P1. Therefore, compliance with Section 42 of the NDPS Act could be seen from the prosecution evidence. Scanning the evidence of PW1 and PW4, along with the evidence of PW2, who forwarded the seized contraband to the Forensic Science Laboratory, Thrissur, which resulted in Ext.P11 report showing a positive result, it is evident that the prosecution has categorically established the commission of the offence punishable under Section 20(b)(ii)(B) of the NDPS Act, by the appellant/accused. That is the reason why the learned counsel for the appellant/accused failed to point out any sustainable contention to upset the verdict impugned.
13. Coming to the sentence, the same requires modification, considering the facts and circumstances of the case and in view of the submission made by the learned counsel for the appellant seeking maximum leniency in the matter of sentence. Accordingly, the substantive sentence imposed by the Special Court for the offence under Section 20(b)(ii)(B) of the NDPS Act is reduced as under:
The conviction imposed by the Special Court is confirmed. The substantive sentence of rigorous imprisonment for a period of two years imposed by the Special Court is reduced to rigorous imprisonment for a period of eighteen (18) months, while maintaining the sentence of fine and the default sentence, as such.
In the result, this appeal is allowed in part. The order suspending sentence and granting bail to the appellant/accused stands cancelled and the bail bond executed by the appellant/accused also stands cancelled. The appellant/accused is directed to surrender before the Special Court, forthwith to undergo the modified sentence, failing which, the Special Court is directed to execute the sentence, without fail.
Registry is directed to forward a copy of this judgment to the Special Court, forthwith, without fail, for information and compliance.
