Research › Search › Judgment

Kerala High Court · body

2019 DIGILAW 348 (KER)

Kunjalan Alias Nani Moosa v. State of Kerala

2019-04-10

P.UBAID

body2019
JUDGMENT : P. Ubaid, J. The appellant in Cri.A.No.827/2015 is the 1st accused in S.C.No.69/2008 of the Court of Session, Thrissur, and the appellant in Crl.A.No.186/2015 is the 2nd accused therein. They faced trial before the learned Ist Additional Sessions Judge, Thrissur under Section 20(b)(ii)B of the Narcotic Drugs and Psychotropic Substances Act (for short, "the NDPS Act") on the allegation that at about 7.20 p.m., on 2.6.2007 at Kodunga, within the limits of the Vellikkulangara Police Station, they were found possessing and transporting 10.600 kgs of ganja on the motorcycle No.KL-8/Y-6050. The offence was detected by the Sub Inspector of Police, Vellikkulangara during his patrol. He saw the 1st accused as the rider of the motorcycle, and the 2nd accused as the pillion rider carrying a sack containing something on his lap. When the Sub Inspector gave signal to stop the vehicle, but the 2nd accused jumped off with the sack in his hands. After moving forward for a short distance, the 1st accused abandoned the motorcycle and escaped. The 2nd accused was arrested by the Sub Inspector on the spot, and the sack found in his possession was opened and examined. It was found containing 10.600 kgs of ganja. Body search of the 2nd accused was also conducted by the Sub Inspector. Though he was informed of his right to be searched in the presence of a gazetted officer or a Magistrate, the 2nd accused waived his right, and consented to be searched by the Sub Inspector himself. No contraband article was seized on body search. The huge quantity of ganja found in the sack carried by the 2nd accused was seized as per a mahazar, and the 2nd accused was arrested on the spot. The Sub Inspector registered a crime on the basis of the arrest and seizure made by him, and investigation was taken over by the Circle Inspector. During investigation, the 1st accused was detected and he was arrested. On the basis of the statements given by the accused Nos.1 and 2, the police arraigned 3rd accused also as the person for whom the quantity of ganja was transported. The case against the 3rd accused was split up and refiled when he remained consistently absent. 2. The accused Nos.1 and 2 appeared before the learned trial Judge, and pleaded not guilty to the charge framed against them. The case against the 3rd accused was split up and refiled when he remained consistently absent. 2. The accused Nos.1 and 2 appeared before the learned trial Judge, and pleaded not guilty to the charge framed against them. The prosecution examined eight witnesses and proved Exts.P1 to P17 documents in the trial court. The MO1 property was also identified during trial. The two accused denied the incriminating circumstances and projected a defence of total denial. In defence, they examined two witnesses, and also proved Ext.D1 document. On an appreciation of the evidence, the trial court found both the accused guilty. On conviction, they were sentenced to undergo rigorous imprisonment for 10 years each and to pay a fine of Rs.1,00,000/- each. Aggrieved by the judgment of conviction dated 31.12.2014, the two accused have come up in appeal. 3. On hearing both sides, and on a perusal of the materials, I find no reason for interference in appeal in the conviction made by the court below under Section 20(b)(ii)B of the NDPS Act. PW1 is the Sub Inspector, who detected the offence and PW8 is the Circle Inspector, who investigated the case. There is nothing to show that there was any flaw or irregularity or illegality in the investigation conducted by PW8. PW2 is the police officer, who assisted the Sub Inspector in the process of detection. PW3 examined as independent witness to prove the search and seizure turned hostile. The main evidence is that of PW1 and PW2. 4. The Sub Inspector has given evidence regarding the compliance of Section 50 of the NDPS Act. However, nothing was seized on body search. His evidence is that he had informed the 2nd accused of his right to be searched in the presence of a gazetted officer or a Magistrate, but, the 2nd accused waived his right. The waiver made by the 2nd accused is well proved by PW1. The huge quantity of ganja contained in a sack was seen by the Sub Inspector on the lap of the 2nd accused, who was the pillion rider. His evidence shows that on seeing the police party, and when the Sub Inspector gave signal to stop the vehicle, the 2nd accused jumped off, but, he could not escape. Before he could escape, he was caught by the police, and the sack carried by him was opened and examined. His evidence shows that on seeing the police party, and when the Sub Inspector gave signal to stop the vehicle, the 2nd accused jumped off, but, he could not escape. Before he could escape, he was caught by the police, and the sack carried by him was opened and examined. It was found containing huge quantity of ganja. Though the 1st accused escaped after abandoning the motorcycle, he was later identified and arrested by the Circle Inspector. However, during trial, the Sub Inspector clearly identified the 1st accused as the rider of the motorcycle, who ran off and escaped. Had he been not a party to the possession of ganja by the 2nd accused, the 1st accused would not have escaped from the scene after abandoning his motorcycle. Any way, the huge quantity of ganja was seized from the possession of the 2nd accused, and this seizure stands well proved by the evidence of PW1 and PW2. 5. The Sub Inspector has also given evidence regarding the compliance of Section 57 of the NDPS Act. This is not a case where Section 42 of the NDPS Act is applicable. This is a case of spot detection on a public road. The evidence on facts given by PW1 and PW2 is quite convincing, definite and consistent. I find no reason to disbelieve PW1 or reject his evidence regarding the seizure of huge quantity of ganja from the possession of the 2nd accused. Compliance of all statutory requirements also stands proved by PW1. 6. Of course, it is true that ganja was not seized from the possession of the 1st accused. But, evidence well convinces the court that he was also a party to the possession and transportation of ganja by the 2nd accused. If he were not, he would have stopped the vehicle when asked by the Sub Inspector. The fact that he did not stop the vehicle and also took to his heels after abandoning the motorcycle proves his complicity in the alleged act of offence. 7. Of course, the independent witness turned hostile, but, the evidence of PW1 and PW2 well proves the case on factual aspects. The evidence given by PW2 is consistent with that of PW1. 8. The required sample was taken from the total quantity by the Sub Inspector, and the sample was sent for analysis. 7. Of course, the independent witness turned hostile, but, the evidence of PW1 and PW2 well proves the case on factual aspects. The evidence given by PW2 is consistent with that of PW1. 8. The required sample was taken from the total quantity by the Sub Inspector, and the sample was sent for analysis. The Ext.P17 report of analysis shows that the sample was identified as ganja at the laboratory. So, I find that the accused Nos.1 and 2 were rightly found guilty and convicted by the trial court. 9. Now, the question of sentence. The detection was made on 2.6.2007. The appellants had undergone remand for more than two months. The judgment of conviction was pronounced by the trial court on 31.12.2014. The appellants have already undergone sentence for more than four years. The sentence imposed by the trial court is rigorous imprisonment for ten years each, and a fine of Rs.1,00,000/- each. On a consideration of the various aspects, including the quantity of ganja and the circumstances of the accused, I find that rigorous imprisonment for four years will be the adequate sentence in this case, and an amount of Rs.40,000/- will be the adequate fine amount also. The default sentence also can be appropriately reduced. The prosecution has not produced any material to prove that the appellants are persons of bad antecedents, or that there is any other conviction to their credit under the NDPS Act. The 1st accused was aged 49 years, and the 2nd accused was aged 38 years on the date of detection. They have been undergoing sentence ever since the date of conviction. In the particular facts and circumstances, I feel that the total term of sentence can be limited to what they have undergone. 10. In the result, the conviction against the appellants under Section 20(b)(ii)B of the NDPS Act is confirmed, and the appeals are disposed of accordingly. However, the substantive sentence imposed by the trial court will stand reduced to rigorous imprisonment for four years each, and the amount of fine will stand reduced to Rs. 40,000/- (Rupees Forty thousand only) each. The default sentence will also stand reduced to rigorous imprisonment for three months each. If the two appellants have already undergone sentence for the required period, including the default sentence, they can be released from custody, if they are not required in any other case. 11. 40,000/- (Rupees Forty thousand only) each. The default sentence will also stand reduced to rigorous imprisonment for three months each. If the two appellants have already undergone sentence for the required period, including the default sentence, they can be released from custody, if they are not required in any other case. 11. Communicate the gist of this judgment to the Superintendent of the Jail, where the appellants have been undergoing sentence. Order accordingly.