Partly allowed

Parameswaran @ Thankachan v. State of Kerala

Kerala HC26 Sept 2016CRL.A/344/2009

Case brief

AI extract

What is this about?

The Kerala High Court allowed this criminal appeal in part. The court upheld the conviction under the NDPS Act but reduced the rigorous imprisonment term from two years to three months and adjusted the fine to emphasis leniency due to the appellant's health disability.

What did the court decide?

Conviction maintained; sentence modified to rigorous imprisonment for three months and fine of ₹10,000 with set-off for detention ante-judicially.

Parameswaran @ Thankachan 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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MONDAY, THE 26TH DAY OF SEPTEMBER 2016/4TH ASWINA, 1938

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CRL.A.No. 344 of 2009 ( )

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SC(NDPS)NO. 12/2007 of SPECIAL COURT (NDPS ACT CASES), THODUPUZHA DATED 12-02-2009

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APPELLANT/ACCUSED:

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PARAMESWARAN @ THANKACHAN, AGED 37 YEARS, S/O.SAHADEVAN, POOVATHUMPARAMBIL HOUSE, SANTHIGRAM COLONY, VADAVATHOOR KARA, VIJAYAPURAM , KOTTAYAM TALUK.

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BY ADVS.SRI.P.J.JOSEPH SRI.GEORGE MATHEW

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF EXCISE, CHANGANACHERRY, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY SR.PUBLIC PROSECUTOR SRI.C.S.HRITHWIK

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DSV/28/9/16

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B. KEMAL PASHA, J.

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................................................................ Crl. Appeal No. 344 of 2009

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............................................................... Dated this the 26^th day of September, 2016

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J U D G M E N T

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The appellant is the accused in S.C(NDPS) No.12/2007 of the Special Court for NDPS Act Cases, Thodupuzha, who stands convicted under Section 20(b)(ii) B of the Narcotic Drugs and Psychotropic Substances Act, 1985(hereinafter referred to as ‘the NDPS Act’) and 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 17.11.2006 at 11 a.m., the accused was found in possession of 2.700 kgs. of

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ganja for the purpose of sale at the Panchayath road leading to Santhigram colony of Vadavathoor in Vijayapuram

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Village, in contravention of the provisions of the NDPS Act.

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The offence was detected by PW1 Circle

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Crl. Appeal No. 344 of 2009 -: 2 :-

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Inspector of the Anti-Narcotic Special Squad, Kottayam. While, he along with his party were on patrol duty, he received an information that the accused was standing with ganja at the road side near the junction from where the road to Harijan colony starts. He recorded the information in writing and forwarded the information to PW2 Assistant Commissioner of Excise. On reaching the place, he could see the accused standing near the public tap by holding a big shopper in his hand. On seeing PW1 and party, the accused tried to move away. He was stopped, and he was made aware of his rights under Section 50 of the NDPS Act for his body search. The accused wanted the presence of a gazetted officer for his body search. The said request was also recorded as Ext.P2.

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PW1 sent an excise guard named Shamsudheen

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for procuring the presence of PW6 Circle Inspector of Excise of Kottayam. When PW6 reached the spot, PW1 conducted the body search of the accused in the presence

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Crl. Appeal No. 344 of 2009

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-: 3 :-

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of PW6 gazetted officer. On such a search, 15 packets from the right pocket of his pants, and 25 packets from the left pocket of his pants were seized. The said packets contained ganja. When the big shopper was examined, it was found containing 2.650 kgs. of ganja. The 40 packets contained 50 gms of ganja. 25 gms. of ganja was drawn as sample. The contraband was seized through Ext.P3 search list. The accused was placed under arrest through Ext.P4 arrest memo.

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Even though the house of the accused was also searched, no incriminating substances were seized. He registered Ext.P9 crime and occurrence report. The contraband was produced before court through Ext.P10 property list. He filed a test memo, the copy of which is Ext.P11. Ext.P13 report was filed before PW2. PW7 Circle Inspector of Excise, Changanassery took over the investigation as per the orders of the Assistant Excise Commissioner, Kottayam. On getting Ext.P18 certificate of

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Crl. Appeal No. 344 of 2009

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-: 4 :-

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chemical analysis, he filed the final report.

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On the side of the prosecution, PWs.1 to 7 were examined, Exts.P1 to P18 were marked and MOs.1 to 6 were identified. No defence evidence was adduced. The court below found the appellant guilty of the offence punishable under Section 20(b)(ii) B of the NDPS Act, convicted him thereunder, and sentenced him as aforesaid.

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7 . Heard the learned counsel for the appellant and the learned Public Prosecutor.

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The learned counsel for the appellant has argued that there is no sufficient evidence to convict the accused for the offence under Section 20(b)(ii) B of the NDPS Act. Alternatively, it has also been argued that the appellant has become invalid due to an accidental fall after the incident and presently he is totally incapacitated. Apart from that the learned counsel for the appellant has invited the attention of this Court to the medical certificate which shows that the appellant is suffering from 50% bipolar disability. Based on

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Crl. Appeal No. 344 of 2009

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-: 5 :-

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the said disability, the learned counsel for the appellant has canvassed for the maximum possible leniency of this Court in the question of sentence.

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PW1 has proved the incident. According to PW1, he received the information, which he recorded as Ext.P1 and forwarded to PW2 Assistant Excise Commissioner. PW2 has also clarified the said aspect and corroborated the versions of PW1. According to PW1, the accused was made aware of his rights under Section 50 of the NDPS Act. Since the accused had opted the search to be conducted in the presence of a gazetted officer, he sent an excise guard to procure the presence of PW6 gazetted officer, who was the Circle Inspector of Excise. The body search was conducted in the presence of PW6. 40 packets of ganja were seized from the body search of the accused. Over and above it, the big shopper which was held by the accused contained 2.650 kgs. of ganja. The total quantity of contraband seized was 2.700 kgs. of ganja.

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Crl. Appeal No. 344 of 2009

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-: 6 :-

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As per the legal procedure, a sample of 25 gms was drawn. The accused was placed under arrest at the spot and the contraband was seized through a search list. The properties were produced before the court without delay. The evidence of PW1 stands fully corroborated by the evidence of PW6. There is absolutely nothing to disbelieve the versions of PWs.1 and 6. It is true that two independent witnesses cited by the prosecution have turned hostile to the prosecution. But the same does not militate against the prosecution case when the evidence of PW1 detecting officer has been fully corroborated by the evidence of PW6.

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The quantity of ganja involved in this case is intermediate quantity within the meaning of Section 20(b)(ii) B of the NDPS Act. There is absolutely nothing to interfere with the conviction passed by the court below. At the same time, by narrating the facts, the learned counsel for the appellant has canvassed for the maximum possible leniency

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Crl. Appeal No. 344 of 2009 -: 7 :-

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of this Court in the question of sentence.

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The offence under Section 20(b)(ii) B of the NDPS Act is punishable with rigorous imprisonment for a term which may extend to 10 years and with fine which may extend to ₹1 lakh. Any minimum sentence has not been prescribed in the case of small quantity as well as intermediate quantity. Minimum punishment in the case of commercial quantity is prescribed within the meaning of Section 20(b)(ii) C of the NDPS Act. Considering the peculiar circumstances pointed out by the learned counsel for the appellant, this Court is of the view that the leniency has to be extended to the accused in the question of sentence. This Court is satisfied that a sentence of rigorous imprisonment for three months and to pay a fine of ₹ 10,000/-, in default, to undergo rigorous imprisonment for one more month, will meet the ends of justice in this case.

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In the result, this Crl.Appeal is allowed in part by maintaining the conviction and by modifying the sentence as

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Crl. Appeal No. 344 of 2009

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follows:

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“The appellant is sentenced to undergo rigorous imprisonment for three months and to pay a fine of ₹10,000/-, in default, to undergo rigorous imprisonment for one more month. It is made clear that the appellant is entitled to set off, of the period, if any, undergone by him in detention in connection with the investigation, inquiry, and trial of this case under Section 428 Cr.P.C., as against the substantive sentence of imprisonment.”

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Sd/- B. KEMAL PASHA, JUDGE.

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ul/-

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// true copy //

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P.S. to Judge.

Parameswaran @ Thankachan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Parameswaran @ Thankachan v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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