GIREESH v. STATE OF KERALA; SURESH v. STATE OF KERALA (CRL.A Nos.153/2017 and 785/2016)

CRL.A Nos.153/2017, 785/2016 1 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH FRIDAY, THE 9[TH] DAY OF DECEMBER 2022 / 18TH AGRAHAYANA, 1944 CRL.A NO. 153 OF 2017 ``` ``` CRIME NO.197/1997 OF Thampanoor Police Station, ``` ``` Thiruvananthapuram ``` ``` AGAINST THE JUDGMENT IN SC 74/2009 OF I ADDITIONAL SESSIONS ``` ``` JUDGE I, TRIVANDRUM ``` ## **`APPELLANT:`** ``` GIREESH, C.NO.901, CENTRAL PRISON, THIRUVANANTHAPURAM ``` ``` BY ADV .J SUNIL (STATE BRIEF) ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY SRI.C.N.PRABHAKARAN-SR.PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 09.12.2022, ALONG WITH CRL.A.785/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` CRL.A Nos.153/2017, 785/2016 2 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH FRIDAY, THE 9[TH] DAY OF DECEMBER 2022 / 18TH AGRAHAYANA, 1944 CRL.A NO. 785 OF 2016 ``` ``` CRIME NO.197/1997 OF Thampanoor Police Station, ``` ``` Thiruvananthapuram AGAINST THE JUDGMENT IN SC 74/2009 OF I ADDITIONAL SESSIONS COURT, TRIVANDRUM ``` ## **`APPELLANT:`** ``` SURESH S/O. BABU, SHEAD NO. 163, CHENGACHOOLA, SECRETARIAT WARD, THYCAUD VILLAGE, THIRUVANANTHAPURAM. ``` ``` BY ADVS. SRI.A.ABDUL HAKKIM SRI.A.CHANDRA BABU ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY SRI.C.N.PRABHAKARAN-SR.PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 09.12.2022, ALONG WITH CRL.A.153/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` CRL.A Nos.153/2017, 785/2016 3 ## JUDGMENT ## [CRL.A Nos.153/2017, 785/2016] Both these appeals have been preferred challenging the conviction and sentence passed by the Additional Sessions Judge I, Thiruvananthapuram in S.C.No.74/2009. 2. A crime was registered by the Thampanoor Police as Crime No.197/1997 against the three accused persons alleging commission of offence punishable under Section 20(b)ii(B) of Narcotic Drugs and Psychotropic Substances Act (for short ‘the NDPS Act’). The prosecution case in short is that on 19.8.1997 at 9.30 pm., the accused Nos.1 to 3 were found in possession of ganja weighing 250 grams, 1.650 Kgs. and 1 Kg. respectively at the KSRTC Bus stand, Thampanoor in contravention of the NDPS Act and Rules and thereby committed the offence. 3. PW4, the detecting officer, on receiving information that the accused were possessing ganja, went to the spot, arrested the accused and contraband were seized. Thereafter final report was filed. The CRL.A Nos.153/2017, 785/2016 4 accused Nos.2 and 3 appeared at the court below and they faced trial. The accused No.1 was reported dead. On the side of the prosecution, PWs 1 to 6 were examined and Exts.P1 to P13 were marked. MOs 1 to 13 series were identified. No defence evidence was adduced. After trial, the court below found the accused Nos.2 and 3 guilty for the offence punishable under Section 20(b)(ii)(B) of NDPS Act and they were sentenced to undergo rigorous imprisonment for a period of four years each and to pay a fine of Rs.20,000/- each, in default to suffer rigorous imprisonment for a period of one year each. Challenging the said conviction and sentence, the accused No.2 preferred Crl.A No.153/2017 and the accused No.3 preferred Crl.A No.785/2016. 4. I have heard Sri.J.Sunil, the learned counsel for accused No.2 (State Brief), Sri.A.A.Abdul Hakkim, the learned counsel for the accused No.3 and also Sri.C.N.Prabhakaran, the learned Senior Public Prosecutor. 5. PW4 is the detecting officer. PW5, the gazetted officer was brought to the spot to witness the body search in compliance of CRL.A Nos.153/2017, 785/2016 5 Section 50 of the NDPS Act. I went through the evidence of PWs 4 and 5. Their evidence clearly proves arrest of the accused, search and seizure of the contraband articles from them. Their evidence would further show that the seized contraband articles were properly packed, sealed and sent to chemical analysis. Ext.P1 is the chemical analysis report. The report shows that the contraband contained ganja. Thus, I find no reason to interfere with the findings of the court below regarding the arrest of the accused, search and seizure of the contraband article/ganja from them. 6. The learned counsel for the accused No.3 vehementally argued that the conviction of the accused No.3 under Section 20(b)(ii) (B) of NDPS Act is bad inasmuch as the quantity of the contraband seized from his possession was only 1000 grams of ganja which is a small quantity. I find some force in the said argument. 7. The prosecution case is that PW4 received a credible information that three persons would reach Thampanoor Bus Stand carrying ganja and based on that information PW4 and police party CRL.A Nos.153/2017, 785/2016 6 went to the spot, arrested the accused and seized ganja from them. The evidence of PW4 would clearly show that when he reached the spot, all the three accused were standing in the bus stand. All of them were carrying a plastic bag in their hand. On inspection of the plastic bag carried by the accused No.1, 250 grams of ganja was found. On inspection of the plastic bag carried by accused No.2, 1.650 Kg of ganja was found and on inspection of plastic bag carried by the 3[rd] accused, 1 Kg. of ganja was found. The prosecution has absolutely no case that all of them by sharing common intention procured the ganja and brought the same. On the other hand, the definite case of the prosecution is that each of the accused were found carrying the ganja possessed by them. Section 29 of the NDPS Act was also not charged against the accused. A Division Bench of this Court in Muthu Kumar v. Station House Officer (2008(2) KLT 890) has held that even though ganja seized from different persons collectively amount to commercial quantity, Section 20(b)(ii)(C) will not be applicable if the actual quantity found in possession of each such CRL.A Nos.153/2017, 785/2016 7 person does not amount to commercial quantity. The dictum laid down in the said decision squarely applies so far as the 3[rd] accused is concerned. Here also the ganja seized from all the accused would collectively amount to intermediary quantity. But, the actual quantity found in possession of the accused No.3 and seized from him amounts to only small quantity. Upto 1000 gms. of ganja, quantity is a small quantity. Hence, I am of the view that the conviction of the accused No.3 under Section 20(b)(ii)(B) of NDPS Act cannot be sustained. Instead, he should be convicted under Section 20(b)(ii)(A) of NDPS Act. 8. Next question is regarding sentence. As per Section 20(b) (ii)(A) of the NDPS Act, the maximum sentence provided is rigorous imprisonment for a period of six months or with a fine, which may extend to Rs.10,000/- or with both. The learned counsel for the 3[rd] accused submitted that already the accused No.3 was in custody for a period of nine months and 20 days during the crime stage. It was so stated in the judgment as well. He is entitled to set off thereof. Therefore, I am of the view that the sentence can be confined to the CRL.A Nos.153/2017, 785/2016 8 period already undergone by the accused No.3 in the judicial custody. So far as the accused No.2 is concerned, the conviction or sentence does not require any modification. However, the learned counsel for the accused No.2 submitted that the 2[nd] accused had already been released from jail after undergoing the entire sentence. In the result, Crl.A No.785/2016 is allowed in part. The conviction of the accused No.3 under Section 20(b)(ii)(B) of NDPS Act is set aside. Instead he is convicted under Section 20(b)(ii)(A) of NDPS Act. He is sentenced to undergo rigorous imprisonment for a period of nine months which he has already undergone. Crl.A No.153/2017 is dismissed. Sd/- ## DR. KAUSER EDAPPAGATH ## JUDGE ab