Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN THURSDAY, THE7H DAY OF NOVEMBER201316TH KARTHIKA, 1935 CRL.A.No. 348 of 2002 ( ) -------------------------- AGAINST THE ORDER
/JUDGMENT
IN SC2281999 of II ADDL.D.C. & SESSIONS COURT,PALAKKAD DATED1104-2002 APPELLANT/ACCUSED: --------------------- KUTTAPPAN, S/O.CHATHAKUTTY, AGED34YEARS, CHITTILANGAD PARAMBU VEEDU, PERUMANNUR KARIMBA, CHALISSERY. BY ADV. SRI.GEO PAUL RESPONDENT/COMPLAINANT: -------------------------- STATE OF KERALA, REPRESENTED BY DEPUTY SUPERINTENDDENT OF POLICE SHORANUR-REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.N.SURESH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON0711-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: mns V.K.MOHANAN, J.
----------------------------- Crl.A.No.348 of 2002 ------------------------------ Dated this the 7th day of November, 2013 JUDGMENT
The above appeal is directed against the judgment dated 11.04.2002 in S.C.No.228 of 1999 of the court of IInd Additional Sessions Judge, Palakkad, at the instance of the sole accused in the above Sessions case as he is convicted and sentenced for the offence under Section 20(b) (1) of the Narcotic Drugs and Psychotropic Substances Act.
2. The prosecution case is that on 28.12.1998 at 8.45 a.m, the accused was found transporting 1 kg 600 grams of ganja, a narcotic substance in violation of the provisions of the Narcotic Drugs and Psychotropic Substances Act by travelling in a stage carriage bearing Registration No.KL-10B7470known by name shogun which was plying through Mannarkkad-Shornur public road and that, therefore, he committed the offence punishable under the above Section of the Narcotic Drugs and Psychotropic Substances Act. Thus according to the prosecution, the accused was convicted for the offence punishable under Section 20 (b) (1) of the Narcotic Drugs and Psychotropic Substances Act (for short 'the N.D.P.S Act') and on such allegation Crime No.711 of 1998 was Crl.A.No.348 of 2002 2 registered in the Mannarkkad police station. On completing investigation, charge was laid in the Sessions Court, Palakkad wherein S.C.No.228 of 1999 was instituted and the same made over to the present trial court for disposal.
3. When the accused were entered appearance, after hearing the prosecution and the accused, a formal charge was framed against him for the offence punishable under Section 20 (b) (1) of the N.D.P.S Act, which when read over and explained to the accused he denied the charge and pleaded not guilty and, therefore, the trial was continued during which PWs. 1 to 8 were examined and Ext.P1 to P7 were produced. Mos. 1 to 3 were also identified as material objects. The trial court finally found that the accused has committed the offence punishable under Section 20 (b) (1) of N.D.P.S Act and accordingly, he is found guilty and convicted thereunder. On such conviction the accused/appellant is sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.10,000/- and default of payment of fine, he is directed to suffer simple imprisonment for a further period of 6 months. Set off is allowed. It is the above finding and order of conviction and sentence that are challenged in this appeal. Crl.A.No.348 of 2002 3 4. Heard Sri.Jeo Paul, the learned counsel for the appellant and Sri.N.Suresh, the learned Public Prosecutor for the State.
5. Learned Public Prosecutor submitted that the appellant had already undergone the sentence and accordingly he is released from the Central Jail, Kannur on 06.08.2004 itself. The learned counsel for the appellant submitted that as the appellant had already undergone imprisonment he has no argument on merit and the same endorsed in the case file. The above submission is also recorded.
6. Even though the submissions are made, as the challenge is against the conviction and sentence, I have perused the evidence and materials on record. On such perusal, it is seen that the Sub Inspector of police Mannarkkad police station received telephonic information during the morning of 28.12.1998 from PW3, Head Constable attached to Mannarkkad police station. According to PW3 while he was travelling in Shogun bus, plying through Mannarkkad-Shornur Public road which bearing registration NO.KL-10B-7470, for reporting duty to Mannarkkad police station and when the bus reached at Pakkulam, he found the accused sitting at the back Crl.A.No.348 of 2002 4 seat of the said bus holding a bag which he doubted as containing ganja as he smelled the same. Thus according to the prosecution, on getting such information, PW1 after informing the matter to Dy.S.P. and entering the matter in General Diary and waited in front of the Mannarkkad police station with his party and when the said bus arrived in front of the Mannarkkad police station, the bus was stopped and the accused was identified and he was brought down and, thereafter, the ganja was searched out in the presence of Divisional Forest Officer, who is a Gazetted Officer and ganja was seized from the bag carried by the accused. The total quantity of the ganja was found as 1.600 kgs and out of this, three samples, each sample containing 50 grams were separated and samples were packed in polythene cover and properly sealed and the residue weighing 1.450 kgs was also separately packed, tied with twine and sealed properly. The label containing the signatures of the accused, PW1 the detecting officer, PW4 and PW5 (Conductor) was also affixed on both packets. The entire proceedings including the seizure sampling etc are elaborately described in the seizure mahazar, Ext.P1. Thereafter, a crime was registered in the Mannarkkad Crl.A.No.348 of 2002 5 police station and, thereafter, the accused was produced before the court as well as the contraband articles and also the other material objects were produced. The investigation was undertaken by PW7, the then DYSP.
7. When PW1 was examined, he had deposed strictly in terms of the prosecution allegation and he had stated the facts and circumstances under which the ganja was seized from the possession of the accused on 28.12.1998. As I have already narrated the said facts and I am not proposed to repeat the same. Though PW1 was extensively cross examined nothing brought on record to discredit his version. When PW1 was examined Ext.P1 Seizure mahazar, Ext.P2 FIR, Ext.P3 arrest memo and Ext.P4 letter etc are proved through PW1. He had also identified 2 samples of 3 ganja packets as MO1 and residue of the ganja as MO2. PW2 is a Police Constable attached to Mannarkkad police station who also attended the search proceedings and seizure of the contraband article from the possession of the accused and when PW1 examined he had also deposed in tune with the deposition of PW1. The role of PW3 I have already mentioned. PW4 is the then Divisional Forest Officer who is a Gazetted Officer at whose presence the Crl.A.No.348 of 2002 6 seizure was effected. PW4 has also deposed that on getting letter from PW1 requesting him to his presence for search of bag held by a passenger in the above mentioned bus, he reached at police station at about 8.40 am and he had also deposed the procedures adopted by PW1 towards the search and seizure of ganja from the possession of the accused. He had also admitted his signature on the sample packet and the residue packet and also Ext.P1 seizure mahazar and during trial he had identified MO2 material objects and Ext.P1 seizure mahazar. PW5 the conductor of the said bus when examined, he had also deposed in favour of the prosecution and he had also identified MO1 series, 2 sample packets and residue as MO2 and also identified MO3 plastic cover. The evidence of PW7, the investigating officer shows that the samples were sent for chemical analysis report and thus obtained Ext.P7 chemical analysis report. These are the evidence and materials referred to by the learned judge in support of his finding. On re-appreciation of the evidence and on materials, I am of the view that the learned Judge of the trial court is fully justified in its finding and convicting the appellant especially when no argument is advanced on merit. Crl.A.No.348 of 2002 7 In the result, I find no reason to interfere with the finding of the court below and accordingly, this appeal is dismissed confirming the conviction recorded by the trial court against the appellant for the offence under Section 20 (b) (1) of the N.D.P.S Act and the sentence imposed thereunder, as per the judgment dated 11.04.2002 in SC.228/1999 of the court of IInd Additional Sessions Judge, Palakkad. Accordingly, the above appeal is dismissed. V.K.MOHANAN JUDGE mns