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2002 DIGILAW 386 (KER)

T. A. Abdul Basheer v. State of Kerala

2002-06-20

M.R.HARIHARAN NAIR

body2002
Judgment :- The appellant is the accused in SC 85/1998 of the Special Court for trial of N.D.P.S. Act cases, Vadakara. The challenge is with regard to the conviction entered against the appellant by the said court for the offence under section 21 of the N.D.P.S. Act and the sentence of R.I. for 10 years and fine of Rs.1 lakh (in default S.I. for 6 months) imposed therefore. 2. The prosecution case is that at about 8.30 p.m. on 15.8.1997, PW3 – Circle Inspector of Police got information that the accused Abdul Basheer (son of Muhammed) was engaged in the sale of brown sugar in the shop of his father at Market Road, Koduvally. After recording the information and transmitting a copy to the Official Superior-by.S.P., Thamarassery, he proceeded to the spot accompanied by the other Police Officials and found the accused inside the shop. He was alerted of his rights under section 50 of the N.D.P.S Act and questioned about his option. The accused waived his rights and accordingly his body was searched by PW3. That revealed that existence of 20gms of brown sugar concealed in a packet kept underneath the underwear worn by the accused. 3. After the trial, the accused was convicted for the offence under section 21 of the N.D.P.S. Act as per judgment dt.16.3.1999. That was based on the evidence of PWs. 1 to 7, Exts.P1 to P12 and Mos. 1 to 3. The said conviction was challenged before this court in Crl.A.360/1999. On 28.5.2001 that appeal was allowed in part; the conviction was set aside and the case remanded with direction that the trial court should invoke its power under section 311 and issue summons to the other occurrence witnesses and decide the case based on the additional evidence. It was further directed that the accused might be released on bail pending further trial. 4. After the said judgment and based on the additional evidence adduced through PWs.6 and 7, DWs.1 and 2 and Exts.D1 and D2, besides the other evidence already recorded, the court passed fresh judgment on 17.11.2001 which is now under challenge. 5. It was further directed that the accused might be released on bail pending further trial. 4. After the said judgment and based on the additional evidence adduced through PWs.6 and 7, DWs.1 and 2 and Exts.D1 and D2, besides the other evidence already recorded, the court passed fresh judgment on 17.11.2001 which is now under challenge. 5. The learned counsel for the appellant submitted that even the additional evidence recorded is insufficient to find that the accused is guilty and that in any event the trial court should have given the benefit of the amended provisions which came into effect on 2.10.2001 based on the N.D.P.S. Act of 2001 (Act 9 of 2001) and reduce the punishment imposed for the offence. 6. On the arguments advanced in the case, the points that arise for decision are:- 1) Whether there is adequate evidence to find that the accused was in possession of 20gms of brown sugar on 15.8.1997 as alleged? 2) Whether there is violation of the mandatory provisions contained in the N.D.P.S. Act? 3) Whether the quantum of brown sugar possessed by the accused is lesser than the commercial quantity? 4) Whether the conviction and sentence entered in the case warrant any modification? 7. Point No.1:- I am not repeating the facts in this judgment as they are contained in paragraph 2 of the impugned judgment. PW3, who is the Circle Inspector of Police had given evidence to the effect that he got information with regard to the sale of contraband going on in the shop of the father of the accused and accordingly proceeded to the spot and after giving the statutory option to the accused, who was seen there regarding his right to be searched in the presence of a Gazetted Officer or a Magistrate, searched his body whereupon the accused took a packet containing brown sugar from underneath his underwear and handed over to the same to PW3, which, on weighment, was found to be of 20gms. He also spoke of the procedural formalities including sampling and preparation of search list. 8. The independent occurrence witnesses cited by the prosecution namely, PWs.1 and 2 had turned hostile and that was the background in which the case was remanded earlier with direction to invoke power under section 311 of the Cr.P.C. to examine the other occurrence witnesses whose names had been mentioned in the original charge. 8. The independent occurrence witnesses cited by the prosecution namely, PWs.1 and 2 had turned hostile and that was the background in which the case was remanded earlier with direction to invoke power under section 311 of the Cr.P.C. to examine the other occurrence witnesses whose names had been mentioned in the original charge. PWs.6 and 7 so examined after the remand are the Police Constable and Sub Inspector respectively, who had accompanied PW3 during the journey to the shop of the accused and witnessed the entire process. Both of them have given clear evidence corroborating the evidence of PW3. The cross examination of those witnesses has not brought out anything to disbelieve them. PWs.1 and 2 who had been examined earlier also have not totally denied their knowledge about the transaction. PW1, though hostile, admitted in cross examination by the prosecutor that he had seen the presence of the police in front of the shop of the accused and that he had signed as attesting witness in Ext.P6. Though he proceeded to state that such signature was affixed not at the spot; but at the Police Station, he admitted in further examination that though not a close relative, the accused had been known to him earlier. 9. PW2 also admitted that he had seen the police party in front of the shop of the accused on the relevant date and that he was told by the police then that the contraband had been seized from the possession of the accused. He further admitted that he had signed in some papers at the spot to witness the seizure of the contraband. In answer to another question put by the learned Public Prosecutor he admitted that the accused belongs to the same place to which the witness belonged and that the accused had been known to him even earlier. Thus the mere fact that the two independent witnesses turned hostile does not render the prosecution case totally unreliable. These two witnesses switched loyalty in order to save the accused whom they had known earlier. Notwithstanding that fact, there is adequate evidence available from PWs.3,6 and 7 to show that seizure of contraband material actually took place. 10. During hearing, reliance was placed on Exts.D1 and D2 judgments showing that there was seizure of contraband by the very same Police Officer from two other persons on the same day. Notwithstanding that fact, there is adequate evidence available from PWs.3,6 and 7 to show that seizure of contraband material actually took place. 10. During hearing, reliance was placed on Exts.D1 and D2 judgments showing that there was seizure of contraband by the very same Police Officer from two other persons on the same day. The suggestion is that in all probability a part of the contraband seized from the accused in those cases might have been used to set up a false case against the present accused. I am not satisfied that the statement of the accused under section 313 coupled with the fact that there was infact two other seizures made by the very same officer on the same day is sufficient to conclude that the present case was actually cooked up. There is adequate evidence to show that the seizure had taken place as alleged by the prosecution. The seized article, when examined at the laboratory, was found to be ‘heroin (brown sugar)’ as certified in Ext.P10 report of Analyst. It is therefore safe to conclude that seizure of 20gms of brown sugar took place as alleged. 11. Point No.2:- PW3 has deposed that he had sent Ext.P3 report to his Official Superior, who is the Dy.S.P. In view of the said fact and in view of the reasoning given in the earlier judgment dated 28.5.2001 in paragraph 8, I conclude that the trial in the case is not vitiated for violation of section 42(2) of the N.D.P.S. Act. 12. The evidence of PW3 that the accused was given option to be searched before a Gazetted Officer or a Magistrate and that he opted against such search is corroborated by Ext.P5 endorsement in the handwriting of the accused himself that there was no need for bringing a Magistrate or a Gazetted Officer. PWs.6 and 7 have also corroborated PW3 in that regard. In the circumstances, there is no violation of section 50 of the N.D.P.S. Act also in the present case. 13. Point No.3:- Section 21 of the N.D.P.S. Act (Act 61/85) along with some other sections, underwent amendment through Act 9 of 2001 which came into effect on 2.10.2001. PWs.6 and 7 have also corroborated PW3 in that regard. In the circumstances, there is no violation of section 50 of the N.D.P.S. Act also in the present case. 13. Point No.3:- Section 21 of the N.D.P.S. Act (Act 61/85) along with some other sections, underwent amendment through Act 9 of 2001 which came into effect on 2.10.2001. Section 21(b) newely introduced stipulates that where a person possesses any manufactured drug or any preparation containing manufactured drug he shall be punishable, where the contraband involves quantity lesser than ‘commercial quantity’, but greater than ‘small quantity’, with rigorous imprisonment for a term which may extend to 10 years and with fine which may extend to 1 lakh rupees. There is no minimum punishment prescribed for this offence now though under section 21 as it stood on the date of occurrence, there was a minimum punishment of not less than 10 years and minimum fine of not less than rupees 1 lakh prescribed for that offence. 14. Section 41 of Act 9 of 2001 which came into effect on 2.10.2001 reads as follows:- 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. 15. It is obvious from the above that a person found guilty of any offence punishable under the principal Act (Act 61 of 1985) as it stood immediately before commencement of Act 9 of 2001, shall be liable only for a punishment which is lesser than the punishment for which he is otherwise liable on the date of such offence. 15. It is obvious from the above that a person found guilty of any offence punishable under the principal Act (Act 61 of 1985) as it stood immediately before commencement of Act 9 of 2001, shall be liable only for a punishment which is lesser than the punishment for which he is otherwise liable on the date of such offence. The proviso to the section makes the aforesaid benefit inapplicable only to cases pending in appeal. 16. The question arises whether this case was pending in appeal or pending trial as on 2.10.2001 on which date Act 9 of 2001 came into force. As already mentioned as per judgment dated 28.5.2001 the case had been remanded and the impugned judgment was passed only on 17.11.2001. Obviously as on 2.10.2001 when Act 9 of 2001 came into force the case was very much pending before the trial court and in that perspective that trial court could have invoked the amended provisions for giving the benefit contemplated in section 41 of Act 9 of 2001 to the accused herein. What is obvious from the impugned judgment is that the trial court did not go into the said aspect; probably because it was not urged before the court at the time when the matter was heard before the judgment was passed. Whatever that be, now that the benefit is claimed, this Appellate court can very well consider the grant of the benefit instead of remanding the case to the trial court for examining the question and to grant adequate relief. 17. Commercial quantity with regard to heroin (brown sugar) prescribed by notification S.O.1055(E) dated 19.10.2001 published in the Gazette of India dated 19.10.2001 is 250gms and the small quantity concerned is 5gms. The quantity seized in the case is 20gms and it is hence above the small quantity and below commercial quantity. In the circumstances, I am of the view that the accused herein can be given the benefit of section 21(b), the maximum imprisonment prescribed for which is only 10 years besides fine which may extend to 1 lakh rupees. 18. In the present case the accused to underwent pre-trial detention in the course of investigation from 15.8.1997 to 15.11.1997. In the circumstances, I am of the view that the accused herein can be given the benefit of section 21(b), the maximum imprisonment prescribed for which is only 10 years besides fine which may extend to 1 lakh rupees. 18. In the present case the accused to underwent pre-trial detention in the course of investigation from 15.8.1997 to 15.11.1997. Pursuant to the earlier judgment dated 16.3.1999 convicting him for the offence under section 21 he underwent imprisonment for the period from 16.3.1999 to atleast 28.5.2001 when the earlier judgment of remand of this court in Crl.A.360/1999 was passed directing his release on bail. After the impugned judgment passed on 17.11.2001 he has been continuing in the prison. Thus the total period that the accused has undergone in the prison and in custody in connection with this case exceeds three years. Considering the quantum of brown sugar seized in the case as also the other facts and circumstances, I am of the view that the imprisonment already under gone as above is sufficient to meet the ends of justice. 19. Point No.4:- In view of my findings as above the conviction entered against the accused for the offence under section 21 of the N.D.P.S. Act is altered as under section 21(b) of the Act and the sentence is reduced from 10 years and fine of Rs.1 lakh to the period of imprisonment already undergone in connection with this case. 20. The appeal is allowed to the above extent. The accused will be released from imprisonment forthwith unless his continued detention is necessary in connection with some other case.