## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS**
**THURSDAY, THE 17TH DAY OF OCTOBER 2019 / 25TH ASWINA, 1941**
## **CRL.A.No.498 OF 2007**
**AGAINST THE JUDGMENT IN SC 1272/2005 OF II ADDITIONAL DISTRICT COURT & SESSIONS COURT-II,PALAKKAD DATED 05.02.2007**
## **APPELLANT/ACCUSED:**
**KARUPPATHA, AGED 65 YEARS, W/O. SUBRAMANIAN, VALAYAR COLONY CHERI VEEDU, MELE KOTTATHARA, ANAKKATTI.**
**BY ADVS. SRI.K.ABDUL JAWAD SRI.U.MUHAMMED MUSTHAFA**
## **RESPONDENTS/COMPLAINANT:**
**1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2 SUB INSPECTOR OF POLICE SHOLAYUR.**
**BY ADV.**
**SR.PP SRI.SANTHOSH PETER**
**THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING**
**CRL.A.No.498 OF 2007**
**2**
## **JUDGMENT**
**The appellant stands convicted for offence punishable under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985, in crime no.11/2005 of Sholayur Police Station and sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.30,000/- (Rupees Thirty Thousand only) with a default sentence of one year in S.C.No.1272/2005.**
**2. The case of the prosecution was that, on 21.01.2005, on getting information regarding the storing of Ganja in the house of the accused, the police party conducted a search at 7.45 p.m. and recovered 1.650 Kgs of Ganja from the southern room of her House No.I/298 of Sholayur Panchayath. It was alleged that, it was intended for sale. After recovery, it was weighed, samples drawn, packed, seals affixed and contemporaneous documents prepared. Thereafter, she was arrested and produced before the Court below. After completion of**
**CRL.A.No.498 OF 2007**
**3**
**investigation final report was laid. Accused faced the trail and pleaded not guilty. The prosecution let in evidence in the form of oral testimony of PW1 to PW7 and Exts. P1 to P12 were marked MO1 to MO3 were identified. The Court below, after giving a reasonable opportunity to accused to let in evidence on the defence side, heard the parties. Thereupon the accused was found guilty, convicted and sentenced as above. The accused has preferred this appeal.**
**3. Heard the learned counsel for the appellant and learned Public Prosecutor and examined the records.**
**4. According to the prosecution, the detention was conducted by PW1 who was the Circle Inspector of Police. He was accompanied by PW2 and other police party. PW5 and PW6 were set up by the prosecution as the independent witnesses to support the recovery. After the search and seizure, investigation was carried on by PW4 who was the SI**
**CRL.A.No.498 OF 2007**
**4**
**of Police. PW7 completed the investigation and laid the final report.**
**5. PW1 in his evidence deposed that he had gone to the locality and apprehended a person who was involved in the sale of arrack. In the course of it, he got information that the accused was handling Ganja and selling it. Thereafter, he proceeded to the colony wherein the house of the accused was situated. He deposed that, search memo was prepared and forwarded to a Police Constable. Search was conducted in the presence of police party. Ganja wrapped in a plastic cover was recovered from a room. It was weighed with the help of PW2 and found to have 1.650 Kgs weight. Three separate samples were drawn, wrapped and sealed. Labels were affixed on it, which was signed by the Detecting Officer and the witnesses. Contemporaneous documents were prepared. The search list was marked as Ext.P1, arrest memo was marked as Ex.P2, FIR was marked as Ext.P3 and search memo**
**CRL.A.No.498 OF 2007**
**5**
**was marked as Ext.P4. An intimation was sent to the Superior Officer, the DYSP, the copy of which was marked as Ext.P5. The sample seal was marked as Ext.P6. The body search list was prepared as Ext.P7. The contraband articles were identified and separately marked. Though the witness was extensively cross examined touching on the various aspects, he had consistently deposed in terms of the prosecution case.**
**6. The version of PW1, was corroborated by the evidence of PW2. Though the learned counsel for the appellant invited my attention to the contradictions in the version of PW1 and PW2 and contended that, they do not establish allegations against them, I feel that they are only minor contradictions. The learned counsel for the appellant relying on both documents submitted that the source of Ganja was not revealed, there were inconsistencies in the details of the person to whom, search memo was forwarded. However, I do not**
**CRL.A.No.498 OF 2007**
**6**
**feel that affects the substratum of the prosecution case. As far as both the witnesses are concerned there were consistency in their version.**
**7. The prosecution case gets its corroboration from the contemporaneous documents which are Exts.P1,P2,P4 and P5. PW5 and PW6 were examined by the prosecution as independent witnesses. However, they turned hostile and did not support the prosecution case. However, I feel that evidence of PW1 and PW2 seems to be consistent.**
**8. It was contended by the learned counsel for the appellant, that there was no statutory compliance of Section 42 of Narcotic Drugs and Psychotropic Substances Act, 1985. Ext.P4 is the search memo. It was prepared and forwarded to the Agali police station for being submitted to the Court. This is corroborated in the version of PW1 and PW2. Another contention set up by the learned counsel for the appellant was that, there was no compliance of Section 57 of the Narcotic Drugs and**
**CRL.A.No.498 OF 2007**
**7**
**Psychotropic Substances Act. It was contended that, what was produced before the Court below was a carbon copy and not the original. Ext.P5 is the copy of intimation sent to the Senior Superior Officer. Definitely the original can only be with the recipient of the above letter and I find no substance in the contention of the learned counsel for the appellant that only a carbon copy of Ext.P5 was produced.**
**9. According to the prosecution the recovery was affected from a house. It was contended by the learned counsel for the accused was residing in a colony and though several persons were available in the locality, PW5 and PW6 who were arrayed as independent witnesses, belonged to a distant place. The learned counsel for the appellant relied on the decision in Kali Dass v. State of Jammu and Kashmir and others (2019 KHC 3166) to support this contention. It is true that PW5 and PW6 do not belong the colony, but they are not from a far away place also.**
**CRL.A.No.498 OF 2007**
**8**
**10. In the absence of any material to doubt the genuineness of the above witnesses, though they did not support the prosecution case, I am not inclined to doubt the prosecution case as such on that ground.**
**11. According to the prosecution, the recovery was from the house of the accused. To support the ownership and possession the prosecution relied on the oral evidence of the PW3, the secretary of the Sholayur Grama Panchayath. He had issued Ext.P9, ownership certificate. It shows that the house mentioned therein was within the limits of Sholayur Panchayath and stood in the name of the accused. PW1 and PW2 have deposed that the accused was present at the time of search and seizure. There is nothing to believe that the house did not belong to the accused. The accused has also no case that, the house from where the recovery was effected is inaccessible to others.**
**12. Having considered these facts, I find**
**CRL.A.No.498 OF 2007**
**9**
**nothing to doubt the prosecution case, which has succeeded in establishing the substratum of the prosecution case as against the accused notwithstanding minor omissions and contradictions the oral evidence. Hence I am inclined to sustain the conviction arrived by the Court below.**
**13. The learned counsel for the appellant, challenging the sentence vehemently contended that the accused was a very aged, rustic tribal woman, who was not aware of the nuances of the legal issues involved in the crime. However, the seriousness of the allegation of the prosecution cannot be lightly seen. It seems that, at the time of arrest and detention, she was aged 65 years and must be in her 80s at present. She is not involved in any other crime. The incident happened about 14 years back. Having considered these facts, I am inclined to interfere in the sentence imposed by the Court below. A substantive sentence of rigorous imprisonment for six months with a fine of**
**CRL.A.No.498 OF 2007**
**10**
**Rs.10,000/- (Rupees Ten Thousand only) will serve the interest of justice. In case of default of payment of fine, she shall undergo a further simple imprisonment for one month. The period of detention already undergone shall be set off against the substantive sentence. The bail bond executed by the accused stands canceled and she shall surrender before the Court below to undergo the remaining part of the sentence.**
## **Sd/-**
**SUNIL THOMAS JUDGE**
**VPK**
