Chacko v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** **TUESDAY, THE 7[TH] DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943** **CRL.A NO. 253 OF 2006 AGAINST THE JUDGMENT IN CC 29/2004 OF SPECIAL COURT (NDPS ACT CASES), THODUPUZHA, IDUKKI** ## **APPELLANT/ACCUSED:** CHACKO, S/O.JOSEPH, KALLAMCHERIYI HOUSE, AMAKANDAM KARA,, KUNJUTHANNI VILLAGE, DEVIKULAM. BY ADVS. SRI.C.J.JOY SRI.FENIL.T.PAUL SRI.V.J.JAMES ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REP. BY CIRCLE INSPECTOR OF EXCISE, MUNNAR, (CR.NO.9/1998 OF NARCOTIC ENFORCEMENT SQUAD,, ADIMALI) THROUGH PUBLIC PROSECUTOR,, HIGH COURT OF KERALA. BY ADV PUBLIC PROSECUTOR SRI SANGEETH RAJ, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 07.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A NO. 253 OF 2006 2 ## **JUDGMENT** This appeal has been filed challenging the conviction and sentence imposed on the appellant/accused in C.C. No.29/2004 on the file of the Special Judge for NDPS cases, Thodupuzha. 2. The gist of the prosecution case is that the accused had kept one kilogram of dried ganja in his house bearing building No.XI/98 of Vellathooval panchayat and thereby committed the offence under Section 20(b)(i) of the NDPS Act. This was on 28.12.1998. 3. Following investigation of the case, a complaint was filed on 16.09.2004 and a charge was framed for an offence under the aforesaid provision of the NDPS Act. On the date of the offence, the punishment provided for the offence was rigorous imprisonment up to five years and fine which may extend to Rs.50,000/-. The NDPS Act has been amended on 02.10.2001 providing for much stringer penalties. 4. The prosecution examined PWs 1 to 9 and marked Exts.P1 to P17 and material objects were identified and marked as MOs 1 to 3. No defence evidence was let in. 5. PW1, who was the Circle Inspector of Police Narcotic Enforcement Squad, Adimali deposed that while checking vehicles on 28.12.1998, about 04.00 pm, he CRL.A NO. 253 OF 2006 3 got information that the accused has kept dried ganja in his house for the purpose of sale. After recording the information (Ext.P1) and grounds for belief (Ext.P2), a search memo was prepared and dispatched to the Judicial First Class Magistrate, Adimali (Ext.P3). He had also sent the originals of Exts.P1 and p2 to the court as well as to the Assistant Excise Commissioner, Idukki. When he reached the house of the accused, accused was not in the house. However, his wife was present. PW2 was called as an independent witness from the neighbourhood and the house was searched. The dried ganja was found in a plastic bag beneath the bedding of a cot on the northern side of the house. The plastic bad contained two other plastic bags each containing ½ kilogram of dried ganja. Samples were taken and sealed. The independent witnesses affixed their signatures. The samples obtained after analysis were marked as MO1 and the remaining ganja as MO2. The search list (Ext.P4) was also prepared with the signature of PW1, the independent witness and the wife of the PW2. Ext.P5 mahazar was prepared together with crime and occurrence report which is marked as Ext.P6. The contraband articles were produced in court as per a property list which was marked as Ext.P7. The inventory list was produced and marked as Et.P8. The report submitted by PW1 to his superior officer is marked as Ext.P9. The note forwarding the sample for analysis is marked as Ext.P10. PW2, the independent witness and the neighbour of the accused turned hostile. Similarly, PW3, wife of PW2 also turned hostile and disputed that she had CRL.A NO. 253 OF 2006 4 witnessed the seizure of ganja, though she admitted her signature on the samples etc. PW4, the village officer identified and marked the site plan (Ext.P13). PW5, the Secretary of the Grama Panachayat marked the assessment register (Ext.P15), which proved that the accused is the owner of the residential building in question. PW7, the Excise Inspector, who accompanied PW1 has identified MO1 to MO3 and also confirmed the deposition of PW1 in every material aspect. PW8, the investigating officer has deposed regarding the investigation and has marked the analysis report. 6. On an analysis of the evidence, the trial court has come to the conclusion that notwithstanding the depositions of PWs 2 and 3, the prosecution has established that dried ganja was recovered from the house of the appellant/accused. On an analysis of the evidence given by the official witnesses and the deposition of the panchayat Secretary that the house in question belongs to the appellant/accused, the court below accepted the version of the prosecution that the dried ganja was recovered from the house of the appellant/accused. The court also found that the various provision of the NDPS Act, namely, Sections 43 and 57 had been complied with by the official witnesses. The trial court, therefore, found that the accused had committed the offence as alleged. The decision of this Court in _**Naushad v. State of Kerala**_ [2000(1) KLT 785] was found not applicable in the light of the fact that the facts of that case were completely different. The trial court, therefore, sentenced the appellant/accused CRL.A NO. 253 OF 2006 5 to rigorous imprisonment for six months and to pay a fine of Rs.10,000/- and in default of payment of fine to undergo imprisonment for a further period of three months. Set off as permissible under law was permitted. 7. Before me, it is the primary contention of the learned counsel appearing for the appellant that going by the law laid down by this Court in Naushad _(Supra)_ and by the Orissa High Court in _**Hemlal Chandrakar V. State of Orissa**_ [2019 KHC 4330], the seizure was invalid as there is no evidence that the seizure was effected from a place within the exclusive possession of the appellant/accused. 8. In _**Naushad** (supra)_ , it is seen that the recovery in that case was from a place within the possession of the accused in that case and his brother. It is found that though search warrant was issued against the brother as well, and no action was taken against the brother, the prosecution has failed to establish that the recovery was from a place within the exclusive possession of the accused in that case. This Court in _**Naushad** (supra)_ also found that the complainant and the investigating officer were one and the same and this was contrary to the well settled proposition of law. This Court also found that the evidence did not support the prosecution case regarding the quantity of the contraband article and also found that the accused in that case has been in custody for more than four years and after noticing that fact, reversed the conviction and sentence recorded by the trial court. CRL.A NO. 253 OF 2006 6 9. In _**Hemlal Chadrakar** (supra)_ , the Hon'ble Orissa High Court was dealing with a case, where again the place from which the contraband was recovered was in possession of the accused in that case and two others. Therefore, the Court found that the mere fact that there was evidence to show that the upstairs portion from which the ganja was recovered was in the occupation of the appellant was not sufficient to establish that the contraband was recovered from the exclusive possession of the accused in that case. 10. The fact situation in this case is completely different from the fact situation in _**Naushad** (supra)_ and the fact situation noticed by the Orissa High Court in _**Hemlal Chandrakar** (supra)_ . In the facts of the present case, the appellant/accused was the sole male member in occupation of the residential house from which the ganja was recovered. The evidence of the panchayat Secretary established that the house belongs exclusively to the appellant/accused. Though the independent witnesses have denied recovery of ganja, they have admitted their signatures on the mahazar etc. In the totality of the evidence tendered also, I am of the opinion that the trail court was right in coming to the conclusion that the prosecution has established that the ganja was seized from the possession of the appellant/accused. The fact that the independent witnesses had turned hostile, does not discredit the evidence tendered by the official witnesses. In such cases, it is often the case that the independent witnesses turn hostile at the time of trial. In that view of the matter, CRL.A NO. 253 OF 2006 7 the conviction imposed on the appellant/accused under Section 20(b)(i) of the NDPS Act is sustained. 11. Learned counsel appearing for the appellant would then contend that the sentence imposed on the appellant/accused may be modified. He submits that the appellant/accused is now aged 70 years and refers to certain documents produced in this Court along with Crl.M.A. No.1/2021 in the above appeal to contend that the appellant/accused is suffering from various age related ailments and had undergone angioplasty. He submits that the sentence may be modified by restricting the period of imprisonment to the period already undergone at the stage of investigation. The appellant/accused was in custody from 07.01.1999 and was released on bail on 25.01.1999 at the crime stage. The trial court has imposed rigorous imprisonment for six months and a fine of Rs.10,000/-. Learned counsel appearing for the appellant/accused submits that while restricting the period of imprisonment to the period already undergone, the fine amount can be enhanced, taking consideration the gravity of the offence. Taking into account the aforesaid facts and especially, the fact that the appellant/accused is now 70 years of age and is suffering from various ailments, I am of the opinion that the sentence in this case can be modified by reducing the period of imprisonment to the period already undergone, i.e., between 07.01.1999 to 25.01.1999 and by increasing the fine to a sum of Rs.35,000/(Rupees thirty five thousand only), which shall be deposited by the CRL.A NO. 253 OF 2006 8 appellant/accused before the trial court within one month from the date of receipt of a certified copy of this judgment. In default of payment of fine, the appellant/accused shall undergo rigorous imprisonment for a period of one month. The Crl.Appeal is accordingly allowed in-part and disposed in the manner indicated above. **Sd/-** **GOPINATH P. JUDGE** ajt