Rajendran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 21ST DAY OF MAY 2015/31ST VAISAKHA, 1937** **CRL.A.No. 1449 of 2004 (A)** **--------------------------AGAINST THE JUDGMENT IN CC 15/2003 of SPL. COURT (NDPS ACT CASES), THODUPUZHA DATED 30-03-2004** ## **APPELLANT(S)/ACCUSED:** **-----------------------** **RAJENDRAN, S/O. PERIYA KARUPPAN, KIRIVETTIYIL HOUSE, MANIYAMPETY BHAGOM NETTITHOZHU KARA, ANAKKARA VILLAGE.** **BY ADV. SRI.P.CHANDY JOSEPH** ## **RESPONDENT(S)/COMPLAINANT:** **----------------------------** **STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, KATTAPANA, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI. GITHESH.R - PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-05-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl. Appeal No.1449 of 2004 ---------------------------------------------Dated this the 21[st] day of May, 2015 ## **JUDGMENT** This appeal is preferred against conviction and sentence in C.C.No.15/2003 of Special Judge for NDPS cases, Thodupuzha for offence pnishable u/s.20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, (hereinafter referred to as the 'NDPS Act'). 2. The prosecution allegation was that on 6.3.2002 the Sub Inspector of Police Vandanmedu Police Station was conducting patrol duty within his jurisdiction, he reached near AKM U.P. School at Nettithozhu, the police party noticed an autorickshaw coming from Maniyanpetty side. He stopped the vehicle for routine checking, the appellant, who Crl. Appeal No.1449/2004 2 was sitting in the autorickshaw, was found perplexed and trying to hide a packet carried by him in the autorickshaw. The Sub Inspector took the packet and detected 1.700 Kilograms of ganja. The appellant was arrested by the Sub Inspector and the contraband articles were seized after preparing a mahazar, reaching at the Police Station, he registered a case. The Circle Inspector of Police, Kattappana conducted investigation of the case, who laid charge before Court against the appellant. 3. In the trial Court, prosecution examined PWs 1 to9 and admitted Exts.P1 to P7 as documentary evidence. The material objects seized at the time of occurrence were marked as Mos 1 to 3. The incriminating circumstances brought out in evidence were denied by the accused while questioning u/s.313 Cr.P.C. Appellant was Crl. Appeal No.1449/2004 3 heard u/s.232 Cr.P.C., but he did not adduce any defence evidence. The lower Court after analysing the oral and documentary evidence, convicted the accused u/s.20(b)(ii) (B) of the NDPS Act. 4. The learned counsel appearing for the appellant Adv.Sri. Rajesh Subramanian submitted that the quantity of ganja seized from the appellant is less than commercial quantity, but the sentence imposed by the trial Court is too harsh and therefore, some leniency may be shown in sentence. 5. The learned Public Prosecutor contended that there is no procedural irregularities and no violation of the mandatory provisions. Therefore, the finding of the trial Court is only to be confirmed. 6. The offence was detected by PW1 while conducting patrol duty. His evidence shows that on 6.3.02 Crl. Appeal No.1449/2004 4 while he was working as S.I. of Police, Vandanmedu he conducted patrol duty and when reached at Nettikode **,** inspected an autorickshaw, KL-6B/2301 and detected 1.700 kilograms ganja from the possession of the appellant. Immediately PW1 arrested him and prepared Ext.P2 mahazar. He took MOs 1 and 2 samples, which were sealed at the place of occurrence itself. The balance ganja was also packed separately as Mo3 and sealed it. There was no dispute with regard to packing, sealing and sampling of ganja. Immediately, he sent Ext.P1 report to the C.I. Of Police, Vandenmedu. Exts.P5, P6 and P7 were also furnished along with samples. On the basis of the seizure, he registered crime No.57/2002 of Vandanmedu Police Station and Ext.P.8 is the FIR. Ext.P10 is the property list prepared by PW1. Even though PW1 was cross examined by the defence counsel, nothing has been Crl. Appeal No.1449/2004 5 brought out to discredit the above seizure and arrest of the accused. 7. It is admitted by the appellant that there was no body search while seizing the contraband articles. A perusal of the evidence of PW1 shows that the Police Constables and independent witnesses were present at the time of seizure. PW2, the driver admitted that the appellant was a passenger in his autorickshaw. He admitted his signature in Exts.P5 to P7. PW3 who is an independent witness was a signatory in Ext.P2 mahazar. PW4, weighed the ganja seized by PW1 using his balance in his shop. PW5 the owner of the autorickshaw admitted that PW2 was the driver of the autorickshaw on 6.3.2002. But, PW6 did not support the prosecution case. Apex Court in **State of Punjab** v. **Balbir Singh** [AIR 1994 SC 1872] held that “ if a police officer without any prior information 6 Crl. Appeal No.1449/2004 as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr.P.C. and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance of recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.” 8. The Police Constable PW7, who accompanied PW1 Crl. Appeal No.1449/2004 7 at the time of detecting the alleged offence, prepared Ext.P2 mahazar. PW8, the Village Officer, prepared Ext.P15 site plan. The investigating officer, PW9 admitted that he prepared Ext.P16 forwarding note for sending the sample for chemical examination. Ext.P17 chemical examination report shows that seized articles were ganja. There is no illegality or irregularity in the seizure and investigation. The trial Court considered this matter and convicted the appellant. A careful scrutiny of the entire evidence shows that the prosecution proved its case beyond reasonable doubt and the conviction u/s.20(b) (ii) (B) of the NDPS Act is only to be confirmed. The learned counsel appearing for the appellant contended that the sentence imposed by the trial Court is too harsh. 9. It is settled principle of law that the sentence is proportionate to the gravity of the offence. In this case, Crl. Appeal No.1449/2004 8 the accused was found in possession of 1.700 kilograms ganja, which is above small quantity, but lesser than commercial quantity. No previous criminal antecedents or sale of ganja or narcotic drugs is reported against the appellant. Apex Court in **Gopal singh** v. **State of Uttarakhand** [(2013) 3 SCC (Crl) 608] held as follows: (para 18) “18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect-propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of Crl. Appeal No.1449/2004 9 the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasise, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependant on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor selfadhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated herein before and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should to embedded in the conceptual essence of just punishment.” If that be the position, I modify the sentence as Crl. Appeal No.1449/2004 10 imprisonment for one year u/s.20(b)(ii)(B) of the NDPS Act and to pay a fine of 25,000/-, in default of payment₹ of fine, simple imprisonment for six months. The period of detention undergone by the appellant to be set off against the sentence of imprisonment. Crl.Appeal is partly allowed. **P.D. RAJAN, JUDGE.** acd Crl. Appeal No.1449/2004 11