## _`IN THE HIGH COURT OF KERALA AT ERNAKULAM`_
## _`PRESENT`_
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THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
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MONDAY, THE 27[TH] DAY OF NOVEMBER 2023 / 6TH AGRAHAYANA, 1945
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## _`CRL.REV.PET NO. 2715 OF 2005`_
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AGAINST THE ORDER IN CRA 92/2005 DATED 16.04.2005 OF SESSIONS COURT, ERNAKULAM
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(FROM CC 793/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOCHI)
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## _`REVISION PETITIONER/APPELLANTS/ACCUSED:`_
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ZIRAJ @ POOV ZIRAJ
S/O.ABU, RESIDING AT NELLIKAKDAVU KARA,, H.NO.111/103, FORT KOCHI
VILLAGE.
BY ADV SMT.LILLY LESLIE
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## _`RESPONDENT/RESPONDENT/COMPLAINANT:`_
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STATE OF KERALA
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.
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## _`OTHER PRESENT:`_
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P.P SHRI MANU MAMALASSERY
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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON
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27.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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Crl.R.P. No. 2715 of 2005
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..2..
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## **SOPHY THOMAS, J.**
## **=====================**
Crl. Revision Petition No. 2715 of 2005
**========================**
## _**O R D E R**_
## **Dated this the 27[th] day of November, 2023**
This revision is at the instance of the accused in C.C. No.793 of 2002 on the file of Judicial First Class Magistrate’s Court -I, Kochi, assailing the judgment in Crl. Appeal No.92 of 2005 on the file of Sessions Judge, Ernakulam, which upheld his conviction and sentence under Section 20(b)(ii)A of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as “NDPS Act”).
2. The prosecution case is that, on 07.11.2001 at about 3.20 p.m., PW8, the Sub Inspector of Police, Fort Kochi Police Station, on getting reliable information that the revision petitioner was selling ganja, near the Dutch Cemetery at Fort Kochi, proceeded to that place, along with police party, and
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Crl.R.P. No. 2715 of 2005
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found the revision petitioner, there and on seeing the police party he tried to ran away. He was intercepted and after alerting him of his right under Section 50 of the NDPS Act, his body was searched in presence of Excise Circle Inspector, Fort Kochi, a Gazetted Officer, and 101 packets of ganja containing 145.900 grams were seized. After completing the legal formalities, the revision petitioner along with the ganja seized were produced before the jurisdictional Magistrate’s Court.
3. On appearance of the revision petitioner, the trial court read over the particulars of offence, to which he pleaded not guilty. Thereupon, prosecution examined PWs.1 to 9, marked Exts.P1 to P7, and identified MO1 to MO3, to prove its case.
4. On closure of prosecution evidence, the revision petitioner was questioned under Section 313 of Cr.P.C. He denied all the incriminating materials brought on record, but no defence evidence was adduced.
5. On hearing the rival contentions from either side, and on
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Crl.R.P. No. 2715 of 2005
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analyzing the facts and evidence, the trial court found the revision petitioner guilty under Section 20(b)(ii) A of the NDPS Act, and he was convicted and sentenced to undergo simple imprisonment for a period of six months and fine of Rs.3,000/-, with a default sentence of simple imprisonment for a further period of one month.
6. Aggrieved by the conviction and sentence imposed by the trial court, the revision petitioner preferred Crl. Appeal No.92 of 2005 before the Sessions Court, Ernakulam. On re-appreciating the facts and evidence, the appellate court upheld his conviction and sentence and dismissed his appeal, against which he has preferred this revision petition.
7. Now this Court is called upon to verify the legality, propriety and correctness of the conviction and sentence, imposed on the revision petitioner by the courts below .
8. Heard learned counsel for the revision petitioner and
learned Public Prosecutor.
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Crl.R.P. No. 2715 of 2005
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9. When the revision petition is taken up for hearing, learned counsel for the revision petitioner submitted that, the revision petitioner is no more. A report was called for from SHO, Fort Kochi Police Station, and the SHO filed the report, along with copy of the death certificate of the revision petitioner, to show that, he died on 05.04.2009, pending this revision. Though sufficient opportunity was given, nobody came forward to get themselves impleaded as his legal representatives, to prosecute the revision. Since the sentence imposed, included fine amount also, learned counsel for the revision petitioner sought permission to argue the matter on merit, and accordingly, her arguments were heard.
10. Learned counsel for the revision petitioner submitted that, the evidence adduced by the police officials were not sufficient enough to prove the guilt of the revision petitioner, as the independent witnesses did not support the prosecution case. PW3, the Sub Inspector of Police, Fort Kochi Police Station,
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Crl.R.P. No. 2715 of 2005
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deposed that, on getting an anonymous telephone message, that a person was selling ganja, near the gate of Dutch Cemetery at Fort Kochi, he proceeded to that place, along with police party, after taking sanction from the Circle Inspector. They found the revision petitioner near the Dutch Cemetery and he was intercepted and questioned. On getting suspicion, they wanted to search his body and for that purpose, the revision petitioner was informed of his right to be searched in the presence of a Gazetted Officer. PW9, Excise Circle Inspector, arrived on request, and the body of the revision petitioner was searched in his presence. On search, 101 packets of ganja containing 145.900 grams in total were recovered from his body. Ten packets were taken as sample, and, the remaining ninety-one packets were separately sealed and taken into custody. Ext.P1 seizure mahazar was prepared at the scene of occurrence itself. After completing all legal formalities, the revision petitioner, who was arrested at the spot, along with the articles seized, were produced before the
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Crl.R.P. No. 2715 of 2005
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police station, where the crime was registered. Thereafter, the revision petitioner, along with the articles seized, were forwarded to the jurisdictional Magistrate's Court.
11. The testimony of PWs.3, 4 and 5 was found reliable and trustworthy by the trial court as well as the appellate court and this Court finds nothing to impeach their testimony. When the testimony of official witnesses is unblemished and free from suspicion, it inspires confidence of the Court. The hostility shown by the ill-motivated independent witnesses is of no consequence when the testimony of official witnesses is reliable and trustworthy. [See _**Abdul Rasheed v. State of Kerala**_ 2008 (3) KLT 150, _**Vikraman v. State of Kerala**_ 2007 (1) KLT 1010].
12. The trial court convicted the revision petitioner under Section 20(b)(ii)A of the NDPS Act and sentenced him to undergo simple imprisonment for six months and to pay a fine of Rs.3000/- with a default sentence of simple imprisonment for a further period of one month. The appellate court found that,
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Crl.R.P. No. 2715 of 2005
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though the ganja possessed by the revision petitioner constituted only a small quantity, the fact that he was keeping it in 101 small packets was sufficient to infer that he was keeping the same for sale. So, the appellate court found that, the punishment imposed by the trial court was proper and hence, the appeal was dismissed.
13. True that, the revision petitioner was found in possession of 101 small packets of ganja weighing 145.900 grams in total evidently for the purpose of sale. Now the revision petitioner is no more. His legal representatives are concerned only with the fine imposed by the trial court as well as the appellate court, as the substantive sentence will get abated on the death of the revision petitioner.
14. The offence under Section 20(b)(ii)A of the NDPS Act is punishable with rigorous imprisonment for a term which may extend to six months or with fine which may extend to Rs.10,000/- (Rupees Ten thousand only), or with both, before its
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Crl.R.P. No. 2715 of 2005
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amendment in the year 2014. The incident in this case occurred on 07.11.2001.
14. Considering the peculiar circumstances of this case, this Court is inclined to uphold the conviction of the revision petitioner under Section 20(b)(ii)A of the NDPS Act but to modify the sentence into simple imprisonment for a period of six months, only, setting aside the fine part and its default sentence.
15. In the result, the revision is partly allowed, upholding the conviction but modifying the sentence into simple imprisonment for a period of six months only, setting aside the fine part and its default sentence.
Accordingly, the revision petition is allowed in part, and as the revision petitioner is no more, it stands abated also.
## **Sd/-**
## **SOPHY THOMAS**
## **JUDGE**
RMV
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TRUE COPY
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P.A.TO JUDGE
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