Shiju Vasanthakumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.UBAID** **THURSDAY ,THE 06TH DAY OF DECEMBER 2018 / 15TH AGRAHAYANA, 1940** ## **CRL.A.No. 1120 of 2018** **AGAINST THE JUDGMENT IN SC 630/2015 of ADDL.SESSIONS COURT - IV, KOLLAM** **CRIME NO. 6/2014 OF Pathanapuram Excise Range Office , Kollam** ## **APPELLANT/ACCUSED:** **SHIJU VASANTHAKUMAR, C.NO.2481, CENTRAL PRISON AND CORRECTIONAL HOME,TVM AGED 1 YEARS S/O. VASANTHAKUMAR, KOCHUTHENGUVILA VEEDU, CHAVADIMURIYIL, KADAKKAVOOR VILLAGE, CHIRAYINKEEZHU.** **BY ADV. S.SREEDEV (STATE BRIEF)** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY CIRCLE INSPECTOR OF PATHANAPURAM EXCISE RANGE** ## **SRI SANTHOSH PETER-PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No. 1120 of 2018** **2** ## **JUDGMENT** The appellant herein is the 1[st] accused in S.C 630/2015 of the Court of Session, Kollam. He and the 2[nd] accused faced trial before the learned IV Additional Sessions Judge, Kollam (Special Court) under Section 20 (b) ii) B read with Section 8 (C) of the Narcotic Drugs and Psychotropic Substances Act (for short “the NDPS Act) on the allegation that when the Excise Circle Inspector of the Aryankavu Excise Check Post conducted a checking at the KSRTC Bus No.KL-15 7169 at the check post, he saw the two accused sitting as passengers on a seat and holding a bag containing 1.395 kgs of ganja. It was a KSRTC Bus plying from Thenkassi to Kottarakkara. The two accused were arrested by the Excise Circle Inspector in the presence of persons including the driver and the conductor of the said bus, and the quantity of ganja contained in the bag carried by the accused jointly was seized as per a mahazar. The required samples were also collected by the Circle Inspector. He produced the **CRL.A.No. 1120 of 2018** **3** accused and the properties at the Pathanapuram Excise Range Office where the Excise Inspector registered the crime and occurrence report. He produced the accused and properties in court and after investigation, he submitted final report in court. 2. The two accused appeared before the learned trial Judge and pleaded not guilty to the charge framed against them. The prosecution examined four witnesses and proved Exts.P1 to P18 documents in the trial court. The MO1 to MO3 properties were also identified during trial. The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C and projected a defence of total denial. They did not adduce any evidence in defence. 3. On an appreciation of the evidence, the trial court found both the accused guilty. On conviction, they were sentenced to undergo rigorous imprisonment for five years each and to pay a fine of 50,000/- each under Section 20(b) (ii)B of the₹ **CRL.A.No. 1120 of 2018** **4** NDPS Act. Aggrieved by the judgment of conviction dated 22.2.2018, the 1[st] accused has come up in appeal. He has been undergoing sentence in jail. The appellant was represented by a learned counsel appointed on State Brief. It is submitted that the 2[nd] accused has not filed any appeal and he has also been undergoing sentence. 4. On hearing both sides, and on a perusal of the materials, I find no reason for interference in the findings of the trial court or the conviction made under Section 20(b)(ii) B of the NDPS Act. 5. Of the four witnesses examined in the trial court, PW2 is the Excise Circle Inspector who detected the offence, and PW4 is the Excise Inspector who registered the crime and occurrence report, conducted investigation and submitted final report in court. PW3 is the Conductor of the KSRTC Bus who witnessed the arrest of the accused and the seizure of ganja from their possession. 6. PW2, the Detecting officer has given evidence proving the seizure of 1.395 kgs of ganja, **CRL.A.No. 1120 of 2018** **5** contained in a bag, from the possession of the accused when he conducted a checking at the KSRTC Bus No.KL15-7169 at the Aryankavu Check post as part of routine checking. The said bus was plying from Thenkassi to Kottarakara. He saw the two accused sitting on a seat just in front of the Conductor's seat as passengers, holding a bag. The bag was in fact seen on the lap of the two accused, but it was seen held by the 1[st] accused. On suspicion, the Inspector wanted to inspect the bag and also to conduct the body search of the accused. He accordingly informed the accused about their right to be searched in the presence of a Gazetted Officer or a Magistrate. When the accused waived their right and consented for search by the Inspector, he searched the body of the two accused, but no contraband article could be seized. Some amount was seized from the possession of the two accused. When he opened and inspected the bag, found in the possession of the accused, the Inspector saw 1.395 kgs of ganja. He arrested the **CRL.A.No. 1120 of 2018** **6** two accused on the spot and seized the contraband article including the bag. From the total quantity of ganja, he collected two samples of 25gms each and the two samples were well packed and sealed according to law. He produced the accused and the properties at the Excise Range Office without any delay. Nothing could be brought out to discredit the evidence of PW2 in his crossexamination. 7. PW3, the Bus Conductor has fully corroborated PW2 on all material aspects. His evidence is that he had seen the Excise Circle Inspector conducting the body search of the two accused and he had also seen the Excise Circle Inspector seizing some quantity of ganja from their possession, as contained in a bag. The evidence of the Bus Conductor also stands not discredited. I find no reason to reject the evidence of PW2 and PW3 or to disbelieve them on factual aspects. 8. The learned counsel submitted before me **CRL.A.No. 1120 of 2018** **7** that there is non-compliance of statutory provisions in this case and on this ground, the accused will have to be acquitted. Let me examine whether there is compliance of Sections 50 and 57 of the NDPS Act in this case. The evidence given by PW2 is that he had informed the two accused of their right to be searched in the presence of a Gazetted Officer or a Magistrate. Exts.P2 and P3 are the consent given by the two accused in writing, waiving their right to be searched in the presence of a Gazetted Officer or a Magistrate, and consenting for search by the Detecting Officer himself. These two are well proved by PW2. Of course, when examined in court, PW2 stated that he had told the accused that he is also a Gazetted Officer. The learned counsel cited a decision of the Hon'ble Supreme Court in State of Rajasthan v. Parmanand [2014 (1) KLT 1030(SC)] that while informing the accused about the right under Section 50 of the NDPS Act, a third option for search cannot be given or indicated by the Detecting **CRL.A.No. 1120 of 2018** ## **8** Officer and that when such a third option is indicated the whole procedure under Section 50 of the NDPS Act will stand vitiated. 9. In fact, Ext.P2 or P3 does not contain any third option given by PW2. Only when examined in court, he stated that he had told the accused that he is a Gazetted Officer. He has not stated that he had told them that he also is competent to search their body or that the body could be searched by himself without procuring the presence of a Gazetted Officer or a Magistrate. Just because he simply told the accused that he is a Gazetted Officer, it will not constitute a third option for search. In the reported case, a third option for search by another person was given by the Detecting officer. PW2 is the Detecting Officer himself and he is the person competent to conduct search of the body when the right for search by others is waived by the accused. Moreover, sub-section (5) to Section 50 of the NDPS Act also authorises the Detecting officer to ## **CRL.A.No. 1120 of 2018** ## **9** conduct body search in certain circumstances. I find that PW2 had well complied with the requirements under Section 50 of the NDPS Act and he proceeded for search when the two accused, without any compulsion or inducement, voluntarily waived their right and consented for search by the Excise Inspector. 10. Ext.P1 is the report sent by PW2 under Section 57 of the NDPS Act. This is proved by the Asst. Excise Commissioner, who is the immediate superior officer of the Detecting officer. This report contains the required details like the name and details of the accused, the place, time and date of detection, the details of the contraband seized, the details of the sampling process etc. This report was sent by PW2 to PW1 well within time. Thus, I find compliance of Section 57 of the NDPS Act also in this case. 11. As discussed in the foregoing paragraphs, I find that the prosecution case stands well proved by the evidence of PW2 and PW3, and **CRL.A.No. 1120 of 2018** **10** compliance of statutory requirements also stands proved by the evidence of PW1 and PW2. I find that the accused was rightly convicted by the trial court under Section 20 (b) (ii) B of the NDPS Act. 12. Now the question of sentence. The appellant was aged only 35 years at the time of detection. He is not a previous convict or a habitual offender. No other previous crime is seen reported against him. The sentence imposed by the trial court is rigorous imprisonment for five years and a fine of 50,000/-. On a consideration of the₹ various aspects, I feel that the sentence can be reasonably reduced. I feel that rigorous imprisonment for three years will be the adequate sentence in this case. In the result, the conviction against the appellant under Section 20(b)(ii)B of the NDPS Act in S.C 630/2015 of the Addl.Sessions Court-IV, Kollam is confirmed and the appeal is disposed of accordingly. However, the substantive sentence imposed by the trial court will stand reduced to **CRL.A.No. 1120 of 2018** **11** rigorous imprisonment for three years. The fine sentence is maintained subject to the modification that the default sentence shall be simple imprisonment for three months. If the appellant has already undergone the period of modified sentence, he can be released from jail if he is not required in any other case. Forward a copy of this judgment to the Superintendent of Central Prison, Poojappura, Thiruvananthapuram. Furnish a copy of this judgment to the learned counsel appointed on State Brief also. ma **Sd/P.UBAID** /True copy/ **JUDGE** P.S to Judge