Joy and Sajimon v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **THURSDAY, THE 8TH DAY OF MARCH 2018 / 17TH PHALGUNA, 1939** **CRL.A.No. 936 of 2004** **AGAINST THE JUDGMENT IN CC 7/2003 OF SPECIAL JUDGE FOR TRIAL OF CASES UNDER THE NDPS ACT,THODUPUZHA DATED 26.04.2004** **APPELLANT/ACCUSED NOS 1 & 2.** **1 JOY AGED 40/2001, S/O DEVASSIA, PUTHENPURACKAL HOUSE, ITHITHANAM KARA,, KURICHI VILLAGE, CHANGANASSERRY TALUK.** **2 SAJIMON, AGED 32/2001, S/O.THANKAPPAN, ANAKUZHI HOUSE, ITHITHANAM KARA, KURICHI VILLAGE, CHANGANASSERRY TALUK.** ## **BY ADV.SRI.NIDHI BALACHANDRAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR, ADV. SRI.UDAYAKUMAR K.B.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rk** ## **K.P.JYOTHINDRANATH, J.** ## **-----------------------------------Crl.Appeal No. 936 OF 2004** **--------------------------------------** Dated this the 8[th] day of March, 2018 ## **JUDGMENT** This appeal is preferred by the accused in C.C.No.7/2003 on the files of the Court of the Special Judge for trial of cases under the NDPS Act, Thodupuzha. 2. The case against the appellants was that on 28.06.2001, at about 2.00 pm, the Excise Range Inspector, Changanassery got a reliable information that the 1[st] appellant herein was dealing in ganja along with his friend one Sajimon. The information recorded in compliance of Section 42 of the NDPS Act and it was informed to his superior officer. The Excise Inspector proceeded towards the house, a search memorandum was prepared and when entered the house, the appellants herein were seen. They were informed regarding the intention of the Excise Range **Crl.Appeal No. 936 OF 2004 2** Inspector to conduct a body search and informed regarding the right to be searched in front of a Gazetted Officer or a Magistrate. As required by them, the Circle Inspector of Excise Range, Changanassery was informed and requested to be present. The further case was that in the presence of the said officer, body search was conducted and under the dress worn by A2, 250 gms of ganja was recovered. Apart from the same, from the house, under the cot 1450 gms of ganja was also recovered. The samples were taken and sealed and thereafter crime registered. The Excise Circle Inspector, Pala conducted the investigation and charge filed. The prosecution altogether examined 8 witnesses and Exts.P1 to P19 marked. MO1 to MO4 were also identified. On the side of the defence, D1 marked. After appreciating the evidence, the court below convicted the accused under Sections 20(b)(ii)(B) and 20(b)(ii)(A) respectively and the 1[st] accused was sentenced to undergo rigorous **Crl.Appeal No. 936 OF 2004 3** imprisonment for one and a half years and to pay a fine of Rs.10,000/- (Rupees One Thousand Only), in default to undergo rigorous imprisonment for six months, the 2[nd] accused was sentenced to undergo rigorous imprisonment for six months. The challenge is against the said conviction and sentence. 3. The main argument advanced by the learned Counsel is that there is non-compliance of Section 42 of the NDPS Act. In this regard, the submission is that, as per the prosecution case, the Gazetted Officer who was present as well as the superior officer to whom the report under Section 42 was made where one and the same. But even though, the Gazetted Officer was examined as PW4, he had not deposed before the court regarding the receipt of the report. If that is so, there is no reliable evidence in respect of compliance of Section 42 of the NDPS Act. When there is non-compliance of Section 42 of the NDPS Act, as per the **Crl.Appeal No. 936 OF 2004 4** decision of the Hon'ble Apex Court in _**State of Punjab v. Baldev Singh reported in AIR 1999 Supreme Court 2378,**_ it will go to the root of the case and the appellants will be entitled for acquittal. 4. I heard the learned Public Prosecutor and the learned Counsel for the appellants. 5. In this case, the detecting officer was examined as PW1. He deposed before the court that when the information was received, he sent the report immediately after recording the same. Surely, when PW4 was examined, he had not deposed anything regarding the receipt of the said report, that is a lacuna glaring from the prosecution side. But the overall effect has to be evaluated in the light of the decision of the Hon'ble Apex Court in **Karnail Singh** **v. State of Haryana reported in (2009) 8 Supreme Court Cases 539.** There, the Hon'ble Apex Court held that noncompliance of Section 42 of NDPS Act may not vitiate the **Crl.Appeal No. 936 OF 2004 5** trial, if it does not caused any prejudice to the accused. In this case, as per the evidence of PW1, he got a case that the report was sent. PW8 was the investigating officer, who got a case that he had seen the report. A copy of the report was seen produced at the time of the trial and which was seen marked as Exts.P18 and 19. 6. In this case, it can be seen that, while considering the requirement under Section 42, the Hon'ble Apex Court held that it was incorporated to check and control false implication. When the Gazetted Officer was the superior officer himself, then it can be only said that there was no prejudice caused to the appellants herein. When the Gazetted Officer was the superior officer himself, it can be only held that, here is a case where false implication can be ruled out and there is substantial compliance of Section 42. It is also to be remembered that as per the evidence of PW8, there was documents to show that PW4 received the **Crl.Appeal No. 936 OF 2004 6** report. Under such circumstance, it cannot be said that here is a case where there is no report under Section 42 of the NDPS Act. There is nothing to disbelieve the evidence of PW1 and PW4 regarding the seizure. When the evidence of PW1 and PW4 are believable, then the possession was seen proved by the prosecution. When possession was proved, then the presumption under Section 54 will be applicable in a case like this. 7. Thus, what comes is that there is nothing to interfere with the conviction entered into by the Court, the only question is that of sentence. The second appellant/accused was found in possession of only 250 gms of ganja whereas the 1[st] accused is found in possession of ganja of 1450 gms. Here is a case where the detection was prior to the amendment brought to the NDPS Act. As such, even though, the conviction was made as per the amended provisions, the sentence was imposed by the court below as **Crl.Appeal No. 936 OF 2004 7** per the act available on that day. The learned Counsel for the appellants submitted for leniency. But in the case of the 1[st] appellant, the court awarded only a sentence of one and half years and fine. But in the case of 2[nd] accused, who was the second appellant, it can be seen that during the relevant point of time, the maximum sentence that can be imposed for a quantity of ganja possessed will be only 6 months. In this case, the maximum sentence was awarded. 8. The submission of the learned Counsel for the appellants is that, they have already under custody for 4 months. (apprehension was on 28.06.2001 and was released on bail on 29.08.2001 and thereafter, after trial the judgment was pronounced on 26.04.2004. Again they were sent to jail and the sentence was suspended only on 16.06.2004). Under such circumstance, the 2[nd] appellant may not be sent to jail as only few days left to be undergone. ## **Crl.Appeal No. 936 OF 2004 8** 9. Under such circumstances, the conviction and sentence in respect of the 1[st] appellant maintained. In the case of 2[nd] appellant, the conviction upheld but the sentence modified and reduced as the period he had already undergone. On the above terms, the appeal of the 2[nd] accused is partly allowed and the appeal of the 1[st] appellant/1[st] accused is dismissed. Sd/- **K.P.JYOTHINDRANATH, JUDGE** //TRUE COPY// PA TO JUDGE rk/09.03.2018 # **Crl.Appeal No. 936 OF 2004 9**