JUDGMENT : The appellants herein are the three accused in S.C.No.39 of 2008 of the Special Court for the trial of NDPS Act cases, Vatakara. 2. They faced prosecution in the court below on the allegation that at about 5.00 p.m. on 05.07.2007 at the verandha of the second floor of the Co-operative Hospital at South Bazar, Payyannur, and in front of the Room No.329, the three accused were found jointly possessing a quantity of 1.250 kgs of ganja. The offence was detected by the Excise Circle Inspector of Taliparamba Range, on the basis of a secret reliable information received by him from the Excise Intelligence and Investigation Bureau, that ganja was being sold at the premises of the Co-operative Hospital. He recorded the information in the general diary kept at the Excise office, sent a report to the Superior officer under Section 42 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, and proceeded to the premises of the hospital with party. On the second floor of the hospital he saw the three accused in this case standing at the verandha in front of the Room No.329. He saw the first accused trying to conceal a packet on seeing the excise party, and the other two accused were also seen perplexed. On the bona-fide belief that the three accused had some narcotic drug or psychotropic substance in their possession he told them that he wanted to search their body. When informed about their precious right to be searched in the presence of a Gazetted officer, or a Judicial First Class Magistrate, the three accused consented for search by the Circle Inspector of Excise himself, waiving their right under the law, and gave written consent. Accordingly, he searched the body of the three accused. On search of the body of the first accused he seized some amount and a mobile phone, and when he seized the packet carried by the first accused, and examined it, he found some quantity of dried ganja. Then he conducted search of the body of the accused Nos.2 and 3. On search, he could seize 15 packets of ganja from the possession of the second accused, and 20 packets of ganja from the possession third accused. Then he conducted search of the body of the accused Nos.2 and 3. On search, he could seize 15 packets of ganja from the possession of the second accused, and 20 packets of ganja from the possession third accused. When he weighed the ganja, he found that the ganja possessed by the first accused was having a weight of 1.050 kgs, that possessed by the second accused in 15 small packets had a weight of 75 gms, and the quantity possessed by the third accused in 20 small packets had a weight of 100 gms. From the total quantity, he collected two samples of 25gms each, and the samples were well packed and sealed according to law. The remaining quantity of ganja was also well packed and sealed, and labels containing the signature of the accused and the witnesses were affixed on all the packets including the sample packets. The three accused were arrested, and all the contraband articles were seized as per a mahazar. Without any delay, the accused and the properties were produced at the Excise Office where an Excise Inspector registered the crime and occurrence report. Investigation was later taken over by another Circle Inspector of Excise of the Excise Enforcement and Anti Narcotic Special Squad. After investigation, he submitted final report in Court, against the three accused under Section 20(b)(ii)(B) of the Act on the allegation that the total quantity of 1.250kgs of ganja was possessed by the three accused jointly. 3. The three accused appeared before the trial court, and pleaded not guilty to the charge framed against them under Section 20(b)(ii)(B) of the NDPS Act. The prosecution examined seven witnesses including the detecting officer, and proved Exts.P1 to P20 documents. MO1 to MO5 properties were also identified during trial. When examined under Section 313 Cr.P.C., the three accused denied the incriminating circumstances, and projected a defence of total denial. They also examined one witness as DW1 in defence to prove that the first accused was in fact taken by him to the hospital in the morning as a patient. In fact, there is no dispute on this aspect. When examined under Section 313 Cr.P.C., the three accused denied the incriminating circumstances, and projected a defence of total denial. They also examined one witness as DW1 in defence to prove that the first accused was in fact taken by him to the hospital in the morning as a patient. In fact, there is no dispute on this aspect. Even the prosecution case is that the first accused came there under the pretext of some complaint of Asthma for admission with the object of making sale of ganja to the others, and he was discharged by about 4.45 p.m. On an appreciation of the evidence, the trial court found the three accused guilty under Section 20(b)(ii)(B) of the NDPS Act. On conviction, they were sentenced to undergo rigorous imprisonment for two years each, and to pay a fine of Rs.5,000/- (Rupees Five Thousand only) each by judgment dated 26.05.2009. Aggrieved by the said judgment of conviction, the three accused have come up appeal. 4. On an appreciation of the entire materials and evidence, I find that the accused Nos.2 and 3 were in fact wrongly convicted by the trial court under Section 20 (b)(ii)(B) of the NDPS Act, because, the quantity of ganja seized from their possession is really small quantity, and there is nothing to show that the whole quantity was jointly possessed by them, except that they were seen together at the verandha of the hospital. Even the statements of the first accused given to the detecting officer, and reproduced by him in the mahazar will show that the accused Nos.2 and 3 in fact reached there to purchase ganja from the first accused. If so, the liability of the second accused must be for the 75 gms which he purchased from the first accused in 15 packets, and the liability of the third accused must be for the possession of 100gms which he purchased in 20 packets from the first accused. In the absence of any definite and satisfactory evidence to prove otherwise that the entire quantity was jointly possessed by the three, the accused Nos.2 and 3 cannot be punished under Section 20(b)(ii)(B) of the NDPS Act. Their conviction can be only under Section 20(b)(ii)(A) of the NDPS Act for the small quantity possessed by them. 5. In the absence of any definite and satisfactory evidence to prove otherwise that the entire quantity was jointly possessed by the three, the accused Nos.2 and 3 cannot be punished under Section 20(b)(ii)(B) of the NDPS Act. Their conviction can be only under Section 20(b)(ii)(A) of the NDPS Act for the small quantity possessed by them. 5. PW1 is the Excise Circle Inspector who detected the offence, and PW4 is the Excise Range Inspector, Payyannur who registered the Ext.P15 crime and occurrence report. PW2 is the Assistant Excise Inspector who assisted the Circle Inspector in the process of detection. PW1 and PW2 have given definite and consistent evidence proving the process of detection in this case involving the arrest of the accused, and the seizure of different quantities of ganja from the possession of the three accused as per the Ext.P11 mahazar. 6. The evidence given by PW1 and PW2 is that PW1 proceeded for detection on the basis of reliable information from the Excise Intelligence Squad, and when the party reached at the Verandha of the 2nd floor of the hospital along with the hospital officials, the excise party saw the three accused there in a suspicious circumstance. Both the witnesses are consistent that on seeing the excise party, the first accused tried to conceal a packet, and the other were also seen perplexed. PW1 wanted to search the body of the three accused to see whether they had any contraband article in their possession. When he told them about their precious right to be searched in the presence of a Gazetted officer or a Judicial Magistrate, the three accused waived their right, and gave written consent for search by the Inspector himself. Accordingly, PW1 searched the body of the three accused. On body search of the first accused, only some amount and a mobile phone could be seized. But when he opened and examined the plastic packet carried in his hands, he saw 1.050kgs of ganja therein. He again searched the body of the accused Nos.2 and 3. He got 15 packets of ganja from the possession of the second accused, and 20 packets of ganja from the possession of the third accused. All were small packets containing small quantities of ganja. The ganja seized from the three accused was weighed by him at the spot of detection itself. The total quantity was 1.250 kgs. He got 15 packets of ganja from the possession of the second accused, and 20 packets of ganja from the possession of the third accused. All were small packets containing small quantities of ganja. The ganja seized from the three accused was weighed by him at the spot of detection itself. The total quantity was 1.250 kgs. Of the total quantity, the quantity possessed by the second accused is only 75 gms, and the quantity possessed by the third accused is only 100 gms. The remaining quantity of more than 1 kg was seized from the possession of the first accused. From the total quantity, he collected two samples of 25 gms each, and the sample packets were well packed and sealed according to law. The three accused were arrested on the spot, and the articles were seized as per mahazar. This evidence given by PW1 and PW2 is not in any manner discredited in cross examination. There is no reason why these witnesses should foist a false against the three accused, or give any foist evidence against them. Thus, I find that their evidence is really convincing and satisfactory to prove the detection. 7. Ext.P20 chemical analysis report relates to the two samples sent from the Court for analysis. The packets containing the remaining quantity after analysis were identified by the material witnesses during trial as MO5 series. MO1 packet containing the remaining quantity of ganja was also identified well by the witnesses during trial. I am well satisfied that the Ext.P20 report relates to the material collected by the PW1 from the total quantity of ganja seized from the accused. Thus, it stands proved that the material seized by the detecting officer from the possession of the accused is nothing but ganja. 8. Now the question is whether there is evidence proving the compliance of the statutory requirements under Sections 42, 50 and 57 of the NDPS Act. Ext.P1 is the Section 42 report proved by PW1. Though it does not contain very many materials, it actually contains the minimum required materials under Section 42 of the NDPS Act. There is nothing to doubt about this document. Ext.P2 to P4 are the consents given by the three accused in writing. These documents are also proved by PW1. Nothing was asked on behalf of any of the accused as regards these written consent, in cross examination. There is nothing to doubt about this document. Ext.P2 to P4 are the consents given by the three accused in writing. These documents are also proved by PW1. Nothing was asked on behalf of any of the accused as regards these written consent, in cross examination. Thus, practically the evidence of PW1 regarding the compliance of Section 50 procedure, and also the genuineness of the Exts.P2 to P4 written consent stands not challenged. PW1 is definite that he had very well told the three accused about their precious right under Section 50 of the NDPS Act, but the three accused waived their right, and gave their consent in writing for search by PW1. Thus, I find that compliance of Section 50 of the NDPS Act stands well proved in this case. 9. Ext.P12 is the report sent by PW1 after detection under Section 57 of the NDPS Act. This report also contains the essentials required under Section 57 of the NDPS Act. Nothing material was asked by the defence about this report. This report stands well proved by PW1. 10. PW6 is the Village Officer who proved the Ext.P19 sketch. PW3 is the Chief Executive Officer of the Co-operative Hospital, Payyannur. He proved the Ext.P11 certificate that the first accused was admitted in the hospital in the morning on 05.07.2007, and he was discharged at about 4.30 p.m. on the same day. This witness had also witnessed the arrest of the accused, and the seizure of ganja from their possession. He is definite in his evidence that he had seen the Excise Circle Inspector and party seizing different quantities of ganja from the possession of the three accused on body search, weighing the total quantity with a table top balance, and also taking sample from the total quantity. This witness identified his signature in the detection mahazar. This witness has well corroborated PW1 on all material particulars. Thus, I find that the prosecution case in this case stands well proved beyond any reasonable doubt. 11. PW7 is the Circle Inspector of Excise who investigated the case, and submitted final report. There is nothing to show that there was any flaw, or irregularity or illegality in the investigation conducted by him. PW5 is the Revenue Superintendent of the Payyannur Municipality who issued the Ext.P18 ownership certificate relating to the hospital building. 11. PW7 is the Circle Inspector of Excise who investigated the case, and submitted final report. There is nothing to show that there was any flaw, or irregularity or illegality in the investigation conducted by him. PW5 is the Revenue Superintendent of the Payyannur Municipality who issued the Ext.P18 ownership certificate relating to the hospital building. This evidence does not assume much importance because, these aspects are not very much in dispute. Detection at the hospital verandha stands well proved even otherwise. Thus, on an appreciation of the entire evidence, I find that the conviction in this case against the first accused under Section 20(b)(ii)(B) of the NDPS Act is only to be confirmed in appeal. As regards the other two, I find that the conviction will have to be altered to one under Section 20(b)(ii)(A) of the NDPS Act, and the sentence also will have to be modified and reduced accordingly. 12. The sentence imposed by the court below is rigorouos imprisonment for two years, and a fine of Rs.5,000/- (Rupees Five Thousand only). No previous crime of similar nature is seen reported against the first accused. He must be now aged about 65 years. The quantity of ganja seized from his possession is just 50gms in excess of the small quantity. On a consideration of all the relevant aspects including the quantity of ganja, and also the age and ailments of the first accused, I find that rigorous imprisonment for one year will be the adequate sentence in this case. When the conviction against the others is being altered to Section 20(b)(ii)(A) of the NDPS Act, there must be reduction and modification in the sentence also. I find that simple imprisonment for two months besides the fine sentence imposed by the trial court will be the adequate sentence. In the result, the appeal is allowed in part as follows; the conviction against the first appellant under Section 20(b)(ii)(B) of the NDPS Act is confirmed, and the conviction as against the accused Nos.2 and 3 is altered to one under Section 20(b)(ii)(A) of the NDPS Act. The sentence of fine imposed by the court below is maintained with the default sentence thereon. The substantive jail sentence imposed by the court below on the first accused will stand reduced to rigorous imprisonment for one year. The sentence of fine imposed by the court below is maintained with the default sentence thereon. The substantive jail sentence imposed by the court below on the first accused will stand reduced to rigorous imprisonment for one year. So also the substantive sentence imposed by the trial court on accused Nos.2 and 3 will stand reduced and modified to simple imprisonment for two months each. If the accused have already undergone the period of sentence including remission and default sentence, they can be released.