Allowed

Riyas and Another v. State of Kerala

Kerala HC26 Aug 2016CRL.A/341/2009

Case brief

AI extract

What is this about?

The High Court allowed a criminal appeal partly, setting aside the conviction under Section 20(b)(ii)B of the NDPS Act. Due to discrepancies in the weight of seized ganja samples compared to the chemical analysis certificate, the weight was deemed insufficient for the higher charge. The appellants were convicted under the corresponding lower section with a reduced sentence. The appeal on the fine

What did the court decide?

Conviction under Section 20(b)(ii)B set aside; appellants convicted under Section 20(b)(ii)A NDPS Act; sentenced to six months rigorous imprisonment and fine of Rs. 10,000 each.

Riyas and Another Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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FRIDAY, THE 26TH DAY OF AUGUST 2016/4TH BHADRA, 1938

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CRL.A.No. 341 of 2009

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JUDGMENT DATED 07-02-2009 IN SC 34/2007 OF SPECIAL COURT (NDPS ACT CASES), VADAKARA

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APPELLANT(S)/ACCUSED 1 AND 2:

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1. RIYAS, S/O. MOOSA, VALIYAPARAMBATH (H), NADAKKUTHAZHA AMSOM DESOM, VATAKARA.

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2. MOIDU, S/O. ABDULLA, KELOTH HOUSE, MEMUNDA AMSOM DESOM, VATAKARA.

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BY ADV. SRI.K.B.ARUNKUMAR

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RESPONDENT(S)/COMPLAINANT:

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STATE OF KEREALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR SMT.MAYA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

msv/

B. KEMAL PASHA, J

=================

Crl.Appeal No.341 of 2009 =================

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Dated this the 26^th day of August, 2016

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J U D G M E N T

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The appellants are accused in Sessions Case No.34 of 2007 of the Special Court (NDPS Act Cases), Vatakara, who stand convicted under Section 20(b)(ii) B of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to ‘the NDPS Act’) and each of whom sentenced to undergo rigorous imprisonment for two years and to pay a fine of `25,000/-, in default to undergo rigorous imprisonment for six more months.

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The prosecution case is that on 05.03.2006

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at 4.15 a.m., the appellants were found transporting 1Kg and 34 grams of ganja by motor cycle bearing Registration No.KL-10-F-5234 through the Thottilpalam

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Wayanad road at Chathangottnada Junction.

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PW-2, Assistant Sub Inspector of Police and

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Crl.A.No.341 of 2009 2

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party were engaged in patrolling duty from 10 p.m. on 04.03.2006 to 6 a.m. on 05.03.2006. While they were engaged in vehicle check, they could see A1 and A2 coming by motorbike bearing Registration No.KL-10-F5234, by placing a paper packet in between A1 and A2 on the seat of the motorbike. When PW-2 asked about the contents of the packet both the accused gave contradictory answers, whereby PW-2 became suspicious. When the packet was opened and examined, he could find ganja in the packet.

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With a view to complying with the provisions under Section 50 of the NDPS Act, PW-2 informed the matter to PW1, the Circle Inspector of Police, Kuttiadi. PW-1 being a Gazetted Officer, came to the spot. When the accused were informed of their right to be searched in the presence of a Gazetted Officer or a Magistrate, both the accused represented that they need only be examined in the presence of PW-1. They expressed the same in writing. PW-1

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Crl.A.No.341 of 2009 3

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conducted the body search of both the accused. An amount of 16,270/- was seized from A1 and an amount of 15,000/- was seized from A2. No other incriminating circumstances were recovered or seized from the body search of A1 and A2.

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When the ganja contained in the paper packet was weighed, its weight was found to be 1Kg and 86 grams with the paper. The ganja alone weighed 1Kg and 34 grams, out of which, two samples each weighing 25 grams were drawn. The same were sealed and labelled. The motorbike was also seized. All the properties were seized through Exhibit-P8 seizure mahazar. The accused were placed under arrest through Exhibits-P4 and P5 arrest memos. On reaching the Police Station with the accused and the properties, PW-1 registered Crime No.27 of 2006 through Exhibit-P9 FIR. Detailed report under Section 57 of the NDPS Act was submitted by PW-1 before the Deputy Superintendent of Police, Vatakara. The

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Crl.A.No.341 of 2009 4

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accused were produced before court on the same day. The properties were produced before Court on 08.03.2006 through Exhibit-P11 property list.

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The case was investigated by PW-8, Circle

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Inspector of Police, Nadapuram. PW-9, Circle Inspector of Police, Kuttiadi, completed the investigation and filed the Final Report on getting Exhibit-P18 certificate of chemical analysis.

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On the side of the prosecution, PW-1 to PW9 were examined, Exhibits-P1 to P18 were marked and MO-1 to MO-6 were identified. No defence evidence was adduced. The court below found the appellants guilty of the offence punishable under Section 20(b)(ii) B of the NDPS Act, convicted them thereunder and sentenced them as aforesaid.

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Heard the learned counsel for the appellants and the learned Public Prosecutor.

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The learned counsel for the appellants has argued that even though samples of 25 grams each

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Crl.A.No.341 of 2009 5

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were allegedly drawn from the contraband, ExhibitsP18 certificate of chemical analysis clearly reveals the weight of the samples as 21.86 grams and 22.92 grams only. It is argued that in such case, it has to be treated that the weighment, as such, was not proper and correct and therefore, the total weight of the contraband, alleged by PW-1, as 1Kg and 34 grams, is not correct. It is also argued that the weight of the contraband will, in such case, be less than 1Kg and therefore, an offence under Section 20(b)(ii)B of the NDPS Act cannot be attracted. It has been further argued that the properties were produced before court on 08.03.2006 only, even though the seizure was on 05.03.2006 and the contraband was not handed over to PW-8. It has also been argued that there are contradictions in the versions of PW-1 with the contents of Exhibit-P8 mahazar.

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PW-2 has clearly deposed regarding the incident. It was PW-2, who informed the matter to PW-

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Crl.A.No.341 of 2009 6

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1 and his presence was sought for. PW-1 came to the spot and after informing about the rights of the accused to be searched under Section 50 of the NDPS Act in the presence of a Gazetted Officer or a Magistrate, he obtained permission from both the accused to have their body search conducted by PW-1. In writing both the accused had agreed that they did not want the presence of any other Gazetted Officer and PW-1 being a Gazetted Officer could conduct the search. Consequently, PW-1 conducted the search. In the body search of A1 and A2, nothing incriminating was recovered. The aforesaid amounts were recovered.

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According to PW-1, he obtained a balance from the shop of PW-6 and weighed the ganja and on such weighment, the total weight of the ganja was recorded as 1 Kg and 34 grams. According to PW-1, two samples each weighing 25 grams were drawn. As rightly pointed out by the learned counsel for the

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Crl.A.No.341 of 2009 7

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appellants, as per Exhibit-P18 certificate of chemical analysis, the weight of the samples were found to be 21.86 and 22.92 grams at the laboratory.

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In such a context, the argument forwarded

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by the learned counsel for the appellants that the total weight of the contraband could not have been 1Kg and 34 grams, requires appreciation. When there is such reduction in the weight of the samples allegedly drawn as 25 grams each by PW-1, the total weight of 1 Kg and 34 grams of ganja found by PW-1 could also be less than 1 Kg and 34 grams. The benefit of that doubt should go to the appellants. It is not at all safe to consider the weight of the ganja as above 1 Kg in such a case. It could be less than 1 Kg also. Therefore even if, the offence is proved, it could only be one under Section 20(b)(ii)A of the NDPS Act.

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Regarding the delay in the production of the properties before court, PW-1 has clearly explained that he had kept it in his custody at his

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Crl.A.No.341 of 2009 8

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office and the same was for the purpose of showing it to the investigating officer. Some part of the investigation was conducted by PW-8. The remaining part of the investigation was conducted by PW-9. According to PW-8, the properties were not handed over to him. There is absolutely nothing to disbelieve the versions of PW-1 that he was keeping the material objects for showing it to the investigating officer. PW8 might not have thought of examining the material objects. Whatever it is, the material objects were produced before court on the third day.

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There is nothing to show that the contraband or samples were tampered with, when Exhibit-P18 reveals that the seals on the packet were intact and the same tallied with the sample seal provided. The evidence of PW-1 stands fully corroborated by the evidence of PW-2. Therefore, the search and seizure stand proved.

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As per Exhibit-P18, the samples contained

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Crl.A.No.341 of 2009 9

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partly crushed dry greenish brown material with leaves having toothed margin and flowering and fruiting tops including seeds and the same was proved to be ganja. Matters being so, it has clearly come out that the appellants have committed the offence punishable under Section 20(b)(ii)A of the NDPS Act. The conviction and sentence passed by the court below for the offence under Section 20(b)(ii)B of the NDPS Act are liable to be set aside.

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In the result, this Crl.Appeal is allowed in part and the conviction and sentence passed by the court below for the offence under Section 20(b)(ii)B of the NDPS Act are set aside. Instead, the appellants are found guilty of the offence punishable under Section 20(b)(ii)A of the NDPS Act and are convicted thereunder. Each of the appellants shall undergo rigorous imprisonment for six months and to pay a fine of `10,000/- (Rupees ten thousand only), in default to undergo rigorous imprisonment for two more months.

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Crl.A.No.341 of 2009

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It is made clear that the appellants are entitled to set off, of the period of detention already undergone by them in connection with the investigation, inquiry and trial of this case, under Section 428 Cr.P.C

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The learned counsel for the appellants submits that an amount of 25,000/- each has been deposited₹ by the appellants at the time when the sentence was suspended. Since the fine amount imposed by this Court is only 10,000/- each, the balance amount of₹ ₹15,000/- each shall be returned to the appellants.

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Sd/-

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B. KEMAL PASHA, JUDGE.

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DSV/26/8/16

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// True Copy //

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P.A. To Judge

Riyas and Another v. State of Kerala

Case brief

What is this about?

What did the court decide?

Riyas and Another v. State of Kerala

Case brief

What is this about?

What did the court decide?

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