Criminal appeal challenging conviction and sentence under Section 20(b)(ii)(B) of NDPS Act for possession of 5 kg ganja. Upheld conviction but modified sentence to reflect period already served and award fine with additional six months imprisonment in default.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
TUESDAY, THE 27TH DAY OF OCTOBER 2020 / 5TH KARTHIKA, 1942
CRL.A.No.1275 OF 2016
AGAINST THE ORDER/JUDGMENT IN SC 99/2015 DATED 21-08-2015 OF ADDITIONAL DISTRICT COURT-I,MAVELIKKARA
CRIME NO.3/2014 OF HARIPPAD EXCISE CIRCLE OFFICE, ALAPPUZHA
APPELLANT/ACCUSED:
BRINDAVAN MALIK, CONVICT NO.338, CENTRAL PRISON, THIRUVANANTHAPURAM.
BY ADV. SRI.C.RAJENDRAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA REPRESENTED BY D.G.P- HIGH COURT OF KERALA
PUBLIC PROSECUTOR.SMT.V.SREEJA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.1275 OF 2016 2
JUDGMENT
The conviction under Section 20(b)(ii)(B) of
NDPS Act,1985 and the sentence awarded thereon are under challenge in this appeal. During the course of argument the learned counsel for the appellant fairly submitted that though there are reason to interfere with the finding of conviction, since the accused had undergone imprisonment for a period of more than five years, the challenge against sentence awarded alone pressed into service.
conducted in compliance with mandate under Section 50 of the said Act and nothing was brought to the notice of this court to interfere with the finding
of the Trial Court regarding the proper search conducted, which was revealed through PW1, Excise Inspector and PW5, Joint R.T.O. Ext.P1 is the deposition reduced to writing under Section 57 of
CRL.A.No.1275 OF 2016 3
the NDPS Act. Ext.P2 is the arrest memo, P3 is the
intimation and P4 is the search list. Ext.P8
mahazar also proved to the satisfaction of the
Trial Court by examining the witness concerned.
Ext.P20 is the Chemical Analysis Report. Ext.P11,12 and 13 would clearly show that the alleged contraband was seized and forwarded for chemical examination in accordance with the
mandate. He was intercepted while he was a pillion
rider of a scooter. Ganja was identified as MO1 and Shoulder Bag wherein it was kept identified as
MO2. The oral evidence tendered found to be
credible and reliable, hence there cannot be any interference to the finding of guilt of accused for the offence punishable under Section 20(b)(ii)(B) of NDPS Act.
aged 23 at the time of offence. The sentence which
can be awarded should reflect a proper balance in
between the mitigating and aggravating
circumstance. The age of accused and absence of bad antecedents are mitigating factors to be taken
CRL.A.No.1275 OF 2016 4
into consideration, while awarding sentence. As such, the sentence already undergone which comes to more than five years can be the proper sentence to be awarded in the place of seven years imprisonment awarded by the Trial Court.
Appeal hence allowed in part. Conviction under Section 20(b)(ii)(B) of NDPS Act against the accused upheld. But the sentence modified, awarding the sentence already undergone by the accused which comes to more than five years and a fine of Rs.5000/-, in default to undergo further imprisonment for a period of six months.
Sd/-
P.SOMARAJAN
JUDGE
msp
2 issues framed by the court
Whether the conviction under Section 20(b)(ii)(B) of NDPS Act, 1985 withstands the challenge.
Whether the award of sentence of seven years imprisonment is sustainable when the accused has already undergone more than five years of imprisonment.
3 provisions across 1 enactments
BRINDAVAN MALIK
STATE OF KERALA
P. SOMARAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
