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1988 DIGILAW 496 (KER)

JOSEPH v. STATE OF KERALA

1988-10-24

SANKARAN NAIR

body1988
Judgment :- 1. Petitioner in Crl. R.P. 691 of 1986 was found guilty of the offence under S.55 (a) of the Abkari Act, by the courts below. His conviction is challenged in the revision petition. In Crl R. C. 99 of 1988, petitioner was directed to show cause why the sentence should not be enhanced. Prosecution case is that on receiving information that petitioner had ganja with, him, his house was raided at or about 2.30p.m. on 21-7-83 by PW1 Excise Inspector and others. When PWs.1 and 2 entered the house, petitioner ran away. They seized 16 K.gms. of ganja from a bedroom in the house. Ext. P2 mahazar was prepared for the seizure and PWs. 3 and 4 are the attestors to Ext. P2. A samble of the article seized was sent for chemical examination, and by Ext. P3 it was reported that the samble analysed was ganja. On this evidence, courts below found the charge. 2. Learned counsel for petitioner submitted that identity of the person who ran. away from the house was not established. The evidence of PWl is to the effect that on seeing the excise party, 'joy (accused) ran away through the backyard of the house'. It is not possible to say that identity has not been established. Then, it was contended that the house belongs to the father-in-law of the petitioner and not to him. Petitioner's father-in-law John was not examined as a witness, and this was adversely commented on. The door number as of the house is not clear, but there is evidence that petitioner was residing in the house. The finding entered on this evidence cannot be considered unreasonable. 3. It was the further contention of counsel that the certificate of analysis cannot be acted on in the light of the decision in State of Kerala v. Shaju (1985 K.L.T. 33). In the nature of the article seized, I am not inclined to think that the certificate does not conclusively establish its nature. May be, in certain cases details would be necessary. But, depending on the nature of the article, even without such details findings in the report can be accepted. Unlike illicit liquor, where the content of ethyl alcohol will be material, in the case of ganja identification by sight and smell by persons familiar with it such as excise Officials can be accepted. But, depending on the nature of the article, even without such details findings in the report can be accepted. Unlike illicit liquor, where the content of ethyl alcohol will be material, in the case of ganja identification by sight and smell by persons familiar with it such as excise Officials can be accepted. Apart from the evidence of the excise officials, there is the report of the Joint Chemical Examiner to prove the nature of the article. This evidence can be accepted as conclusive. Counsel raised a further contention that the certificate issued by the Joint Chemical Examiner cannot be accepted under S.293 of the Code, as Joint Chemical Examiner is not named in the section. I am not inclined to accept this submission. It is true that Joint Chemical Examiner is not named in the section. That may be because, such a post was not in existence at the material time Joint Chemical Examiner also is comprehended by the expression 'Chemical Examiner' and it is certainly not the intention of the legislature to exclude the joint Chemical Examiner when the Assistant Chemical Examiner has been included and considered competent. Thus, the finding based on the evidence of PWs. I and 2 corroborated by the evidence of PWs. 3 and 4 and certificate of analysis clearly establishes the offence, and conviction is proper. 4. Then arises the question of sentence. Only the minimum sentence prescribed is imposed. Imposition of minimum sentence, is common experience, in cases under this Act. It is not as if the minimum sentence, is the only sentence that could be imposed. Sentence should be commensurate with the gravity of the offence. In appropriate cases, a sentence above the minimum, is called for. Dealing in drugs, is a very serious offence and in the recent past such offence have reached distressing proportions. It has an impact on public health. A large percentage of the users of cannabis, are young people including adolescents. Those who sell such drugs are slowly but surely depersonalising those who use it, and condemning them to a worthless life and slow death. They have ho right to do this, and the crime committed by them is a crime without a name. A large percentage of the users of cannabis, are young people including adolescents. Those who sell such drugs are slowly but surely depersonalising those who use it, and condemning them to a worthless life and slow death. They have ho right to do this, and the crime committed by them is a crime without a name. Sentences imposed mindlessly amount to a blot on the justice system, and imposition of unduly lenient sentences clearly demonstrate a sense of levity on the part of those charged with the responsibility of administering law. Such is the case with the magistrate in the instant case. 5. Cannabis causes serious adverse effects. A recent article in the British Medical Journal, Volume 294, page 141 illustrates the adverse effects of cannabis, thus: "Cannabis is a prime example of a pharmacologically "dirty" drug. It contains many active substances with multiple effects and several (unknown) mechanisms of action. Cannabinoids exert Psychotropic, hypnotic, tranquillizing, antiemetic, anticonvulsant. and analgesic effects; they lower intraocular pressure, increase appetite, and affect the cardiovascular respiratory, reproductive, and immune systems. XX XX XX XX Its hedonic properties are well known and have long been exploited for recreational purposes, but dysphoric reactions are common. Acute exposure even to moderate doses of cannabis and tetrahydro¬cannabinol. especially in those not used to taking the drug, can precipitate anxiety and panic reactions, depersonalisation, and schizophreniform, manic, and confusional psychoses. Certain personality characteristics and environmental stress predispose to such reactions, but they can occur in patients without a psychiatric history. Cannabis can precipitate and aggravate schizophrenia in patients controlled on neuroleptics possibly it antagonises some antitpsychotic drug effects. "Flashback" and recurrence of¬dysphoria during drug abstinence may occur after heavy cannabis exposure". 6. In the instant case, the quantity seized is 16 K.gms. If the petitioner had not been apprehended, this quantity would have gone into the hands of inumerable people causing serious harm to them. The magistrate below acted in a very light hearted fashion in imposing minimum sentence. In the circumstances of the case, the sentence imposed is enhanced to R. 1. for two years. Crl. R. P. and Crl. R. C. are disposed of as above. Registrar of this court will communicate a copy of this order to the magistrate wherever he is.