CRL.A/504/2000 of CONVICT NO.6930 Vs STATE OF KERALA on 19 December 2005

JUDGMENT

The appellant was convicted and sentenced to undergo rigorousimprisonment for 2 years and to pay fine of Rs.10,000/- and in defaultto undergo rigorous imprisonment for six months more. Set off wasalso allowed. The said conviction and sentence were passed underSection 20(b)(1) of Narcotic Drugs and Psychotropic Substances Act(`NDPS Act’ for short) by the Addl. Sessions Judge, Kozhikode. Thesaid conviction and sentence are challenged in this appeal.

2. According to the prosecution, on 4.9.1996 at about 10.30 p.m.the accused was found to be in possession of 50 gram of ganja in 25small packets kept for sale by PW1, the Sub Inspector, PW2 PoliceConstable and other police party. PW1 proceeded to the spot ongetting reliable information that ganja is being sold at the place ofoccurrence and on reaching the place of occurrence, which is on thewestern side of the beach road lying in front of the Fisheries School,they found the accused in a scooter carrying a paper packet on hisright hand. On seeing, he was informed that they intend to searchhis body. After complying with the provisions under Section 50 of theNDPS Act, a search was conducted. A packet containing 50 grams ofganja, in 25 small packets, were seized. The body-search wasconducted in the presence of independent witnesses. The articleswere seized, sealed and labeled. The signature of witnesses andaccused were affixed on label. Accused was arrested on the spot.

3. To prove the prosecution case, PWs 1 to 6 were examined andExts.P1 to P14 and MOs 1 to 5 were marked. The court below, afteranalysis of the evidence, found that the accused was found inpossession of ganja as alleged by the prosecution.

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4. PWs 1 and 2 are official witnesses. PW1 is the Sub Inspectorand PW2 is the Police Constable accompanied PW1 to the scene. PW1and PW2 corroborated each other on all material particulars regardingthe search, seizure and arrest. Their evidence will disclose that on4.9.1996 at about 22.15 hours they got reliable information that aperson was selling ganja in front of Fisheries School on a scooter andon reaching there, they found the accused in a perplexed state. TheSub Inspector (PW1) informed about his right under Section 50 of theNDPS Act and thereafter a body search was conducted and packet wasseized from his possession. On opening, it contained MO2 series (25small packets) which were found to be ganja. The scooter was alsoseized and the accused was arrested.

5. There is nothing in the evidence of PWs 1 and 2 to disbelievethem. Though they are police officials, no motive is alleged againstthem to foist a false case against the appellant. His case is that he isengaged in fish business. He is falsely implicated. Except a baldassertion, nothing is brought out from the evidence to show that afalse case is foisted against him. Both of them stood the test of cross-examination and gave evidence fully supporting the prosecution case.Their evidence is also corroborated by the evidence of PW3 to a certainextent.

6. PW3 is an independent witness who has given evidence thathe had seen he accused being surrounded by the police in front of thefisheries school in 1996 in the morning though the date and monthare not remembered by him. He also said that he had signed in Ext.P1mahazar. He also stated that he had signed on the articles seized fromthe accused and identified the signature on MO1 and MO3. Theevidence of PWs 1 to 3, therefore, satisfies that an incident as allegedhad taken place and 25 packets of ganja were seized from the possession of the accused as alleged by the prosecution on the dateand time, alleged by the prosecution.

7. The ganja was sent for chemical analysis through the courtand it was certified to be pure ganja as per Ext.P9 chemical analyst’sreport. The contemporaneous document, Ext.P1 seizure mahazar, FIR,Ext.P3, the property list Ext.P6 would all add to the veracity of theversion given by these witnesses. The accused was produced within 24hours before the court. The contraband article was also producedbefore the court on the very next day of the incident within 24 hours.Thus, there is nothing on record which will cast reasonable doubt onthe case set up by the prosecution regarding seizure.

8. Learned counsel appearing for the appellant howeversubmitted that there is no compliance of Section 50 of the NDPS Act inthis case. PWs1 and 2 categorically deposed with respect to thedetails disclosing compliance of Section 50 of the Act. Both of themsaid that thought PW1 told the accused and alerted him on his right toget the search conducted in the presence of gazetted officer or aMagistrate, but the accused had not availed of such opportunity. Theevidence of PW3, a hostile witness, would go to show that he had notobserved the minute details regarding the seizure etc. and the officialformalities. Therefore, in the light of the evidence of PWs 1 and 2, itcannot be said that there is no compliance of Section 50 of NDPS Act.

In the above circumstances, I find that the conviction andsentence passed against the appellant are only sustainable and nointerference is called for.

Appeal is dismissed.

Krs.

K.HEMA, JUDGE.

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K.HEMA, J. ------------------------------M.F.A.NO.504 OF 2000 ------------------------------

JUDGMENT

19.12.2005