Criminal Appeal No. 595 of 2003 (NDPS Act)

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 29TH SEPTEMBER 2009 / 7TH ASWINA 1931 CRL.A.No. 595 of 2003() ----------------------SC.153/2002 of SPL.COURT (NDPS ACT CASES), VADAKARA .................... APPELLANT(S): 1ST ACCUSED: -------------------------------------------------- S. MANI, S/O. CHINNASWAMI, PORAMKUMAYAN STREET, UTHAMAPALAYAM TALUK, THENI DISTRICT, TAMIL NADU. BY ADV. SRI.SUNNY MATHEW RESPONDENT(S): COMPLAINANT: ----------------------------------------------------- THE C.I. OF POLICE, KASABA POLICE STATION, KOZHIKODE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V. RAMKUMAR, J.** **= = = = = = = = = = = = = Crl.Appeal.No.595 of 2003** **= = = = = = = = = = = = = = Dated this the 29[th] day of September, 2009** ## **JUDGMENT** In this appeal, the appellant, who was the 1[st] accused in S.C.No.153 of 2002 on the file of the Special Judge (NDPS Act Cases) Vadakara, challenges the conviction entered and the sentence passed against him for offences punishable under Section 20(b)(ii)(B) of the NDPS(Amendment) Act, 2001. 2. The case of the prosecution unraveled by the oral and documentary evidence is the following:- On 6.12.2001 at about 11.10 a.m, PW1 who was the Circle Inspector of Police, Kasaba, Kozhikode received a credible information to the effect that ganja (Cannabis Sativa) had been brought by two persons near the bus stand at Kozhikode. After recording the said information in the general diary of the Police Station and after reporting the matter to his immediate official superior namely Assistant Commissioner of **Crl.Appeal No.595 of 2003** 2 Police, Kozhikode south as per Ext.P1 report, PW1 along with his police party which consisted, inter alia, of PW3, Sub Inspector of Police, Crime Squad, Kozhikode city, proceeded to the spot at 11.20 a.m. On reaching the said spot, they identified A1 and A2 who were found standing near the main gate on the northern side of the new bus stand, Kozhikode. Seeing the Police party A1 and A2 made the hurried attempt to escape from there. They were, however, intercepted and restrained by the Police party. A1 was holding a bag in his hand and A2 was found in his company. On interrogation about the contents of the bag, A1 told to the police party that the bag contained dress materials. Getting suspicious, PW1 and his police party decided to conduct a body search of the accused persons. A1 and A2 were informed that they were going to be searched and that they had rights to be searched in the presence of a Magistrate or a Gazetted Officer and elicited their choice in that behalf. Both of them gave **Crl.Appeal No.595 of 2003** 3 Exts.P2 and P3 consent letters to the effect that there is no objection in PW1 conducting their body search. Accordingly, PW1 searched both A1 and A2 in the presence of independent witnesses examined as PWs.4 and 5. The bag hold by A1 (appellant herein) was examined and it was found to contain 1Kg and 5 gms of dried ganja wrapped in a plastic bag. A sum of Rs.150/-, believed to be the sale proceeds of ganja, was also seized from A1. A search of A2 resulted in the recovery of an amount of Rs.10/-. The ganja recovered from the bag hold by A1 was weighed, packed and sealed. Two samples each weighing about 10 gms and marked as S1 and SII were also drawn from the bulk quantity. The samples were also packed and sealed. The bulk quantity of ganja as well as sample packets were seized under Ext.P4 seizure mahazar to which the independent witnesses fixed their signatures as attestors. Both A1 and A2 were arrested and taken along with contraband substances and seizure mahazar **Crl.Appeal No.595 of 2003** 4 to the Police station from where Ext.P1 mahazar was registered as Crime No.410 of 2001 for an offence punishable under Section 20(b)(ii)(B) of the NDPS (Amendment) Act, 2001. Ext.P7 is the property list which shows that the properties were produced before the Special Court on 7.12.2001 and were received after verification as item No.PR192/2001. The two sample packets were also among the properties so produced. During the course of investigation, PW6, the Assistant Commissioner of Police, Kozhikode South city filed the original of Ext.P11 forwarding note requesting the samples to be forwarded to the Chemical Examiner, Kozhikode for analysis. The said request was complied with by the Special Judge sending the sample packets to the Chemical Examiner. Ext.P12 is the certificate of chemical analysis dated 20.6.2002 it shows that the two sample packets marked as S1 and SII were received by the Government Chemical Examiner on 27.4.2002 as forwarded by the Special judge as per letter No. **Crl.Appeal No.595 of 2003** 5 PR192/2001 dated 27.4.2002 and that the seals on the packets were in tact. The colour and appearance of the samples showed that they were partially crushed and dry greenish leafy material with flowering tops and fruiting tops and identified to be the genuine ganja (Cannabis Sativa). This in short is the prosecution case as unraveled by the oral and documentary evidence. 3. Assailing the conviction entered and sentence passed against the appellant the learned counsel made the following submissions before me:- This is a false case foisted against the appellant and A2. The very fact that the total weight of the contraband substance shown as 1Kg and 50gm itself will indicate that the police wanted to ensure that the quantity is just above the small quantity fixed for ganja so that the accused will not be able to canvas for leniency in the sentence. There has been noncompliance of Sections 42, 50 and 57 of the NDPS **Crl.Appeal No.595 of 2003** 6 Act rendering the conviction entered and the sentence passed unsustainable. The sentence imposed on the appellant is also excessive. 4. I am afraid that I cannot agree with the above submissions. As for the 2[nd] accused, since he was only found in the company of the appellant without having been found in possession of any narcotic drug or psychotropic substance, the court below was inclined to give him the benefit of doubt. But in the case of the appellant (A1) he was found in carrying a bag which was eventually found contained 1Kg and 50 gms of dried ganja answering the definition of “Cannabis” as defined under Section 2(iii)(b) of the NDPS Act and punishable under Section 20(b)(ii)(B) of the NDPS Act. The earlier view that anything carried by a person a bag, or any such article or container is a logical extent of the body involving a body search is no more good Law. Search and seizure of a bag carried by the accused in his hand does not involve any body search insisting compliance of Section 50 of the NDPS Act. **State of Rajasthan v. Daulat Ram** (AIR **Crl.Appeal No.595 of 2003** 7 2005(3) SC 3816) and **State of Haryana v. Ranbiralias Rana** (2006(2) KLT 370) and **Ravindran @ John v. Superintendent of Customs** (2007(3) Crl.L.J. 3414). It was by way of abundant caution that PW1 was following the procedure for Section 50 which was really unnecessary in this case. 5. The question of complying with Section 42 will apply only to a case of information relating to availability of the contraband in a building, conveyance or enclosed places and not in a public place. Hence, compliance with Section 42 is not necessary in case the concerned seizure are effected from a public place falling within Section 43 of the Act ( See **Abdul Azeez v. State of Kerala** -2001(1) KLT 805, **Ravindran v. Superintendent of Customs with Peter John v. Superintendent of Customs** - 2007(6)SCC 410, **Sayar Puri v. State of Rajasthan** - AIR 1998 SC 3224 and **State of Haryana v. Jarnail Singh** - 2004(2) KLT 1024 SC ) But this is a case in which both Section 42(1) and 42(ii) as also Section 57 has been complied with by PW1 and therefore **Crl.Appeal No.595 of 2003** 8 non-compliance of those provisions, though not necessary, cannot vitiate the investigation or the resultant trial. 6. The court below was, therefore, fully justified in recording the conviction against the appellant/1[st] accused who was found in possession of 1Kg and 50 gm of dried ganja. His conviction under Section 20(b)(i)B) of the NDPS Act is accordingly confirmed. What now survives for consideration is the legality of the others on the sentence imposed on the appellant. 7. The court below has sentenced him to rigorous imprisonment for one year and a fine of Rs.15,000/- and on default to pay the fine to simple imprisonment for three months. Having regard to the quantity of the ganja, I do not think that the aforesaid sentence is excessive or disproportionately harsh. Narcotic drugs have ruined several families. Adolescents are the first casualties of these toxic substances which have been scientifically proved to have deleterious effect on the human system. Nobody has no right as to habitat to vice of the drug abuse and drug trafficking. **Crl.Appeal No.595 of 2003** 9 It may be filthy lucre that impels people to indulge in drug trafficking, but the damage which these noxious substance produces on the human system is beyond repair. I, therefore, do not find any good ground to interfere with the sentence imposed on the appellant. In the result this appeal is dismissed confirming the conviction entered and the sentence passed against the appellant. Dated this the 29[th] day of September, 2009. ## **V. RAMKUMAR, JUDGE** sj