Appellant was tried by the learned Sessions Judge, Thrissur in Sessions Case No.522/2003 for an offence under Sections 20(b)(i) of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'N.D.P.S Act'). After trial, he was convicted and sentenced under Section 20(b)(ii)(B) of the N.D.P.S Act. Challenging the conviction and sentence, he has preferred this criminal appeal before this Court.
2. Learned counsel for the appellant submitted that in spite of sending a registered notice, the appellant did not turn up to instruct. Hence he reported no instructions from the appellant. Heard the learned Public Prosecutor. I have carefully perused the records.
3. At the time of trial, the learned Sessions Judge examined five witnesses on the side of prosecution and marked Exts.P1 to P8 and MO's 1 to 7. There was no defence evidence.
4. Short prosecution case is that on 24-09-2002 at about 11.30 a.m., the appellant was found standing near Puthanpalli at South Bazar Junction. On seeing the police jeep, the accused tried to hide himself. The Police Officers felt suspicion and he was questioned. He was holding a kit at that time. When the kit was examined, it was found that he possessed ganja weighing 1100 grams. The accused was informed of his right to be searched in front of a Gazetted Officer or a Magistrate which he waived. Therefore, the accused/appellant was arrested for possessing ganga. Samples were taken from the contraband and they were properly sealed. Accused and the contraband were taken to the police station and later to the court. The contraband article was produced before the court with a forwarding note for sending them to the chemical analyst. Thereafter, investigation was completed and charge was laid.
5. PW1 is the detecting officer. He was working as the Sub Inspector of Police at the material time. It is his testimony that at 11.30 a.m on 24.09.2002, he found the accused in a suspicious circumstance near Puthanpalli holding a cover in his hand. His behavior evoked suspicion and he was questioned. At that time, it was found that he possessed 1100 grams of ganga without any lawful authority. The right to be searched in front of a Gazetted Officer or a Magistrate provided under Section 50 of N.D.P.S Act was informed to the accused. According to PW1, he waived his right. PW1 proved the fact that report of arrest and seizure prepared Section 57 of the N.D.P.S Act was forwarded to his superior officer. A property list was prepared and the property was submitted before the court. Property list is Ext.P1. The seizure mahazar prepared from the place of detection is Ext.P2. MO's 1 to 3 are the samples received back after analysis. All the packets contained the signatures of himself and that of the appellant. Ext.P3 is the First Information Report. In spite of cross examination on this witness, nothing could be elicited to show that he had committed any illegality or irregularity in the detection of offence. Further, there is no reason to think that he falsely implicated the accused in the crime.
6. PW2 was the Head Constable, who accompanied PW1. His testimony was also in complete agreement with that of PW1. Requirement under Section 50 of the N.D.P.S Act was informed to the accused was spoken to by this witness as well. Evidence tendered by PW2 remains credible in spite of cross examination.
7. PW's 3 and 4 are the independent witnesses cited to prove the search and recovery of contraband from the possession of the appellant. They turned hostile to the prosecution and refused to support the prosecution case.
8. PW5 is the investigating officer. He questioned the material witnesses and submitted a forwarding note marked as Ext.P7. Ext.P8 is the chemical analysis report. It shows that the contraband recovered from the possession of the accused was ganga. Therefore, the material prosecution witnesses have established that the appellant possessed ganga weighing 1100 grams in contravention of the provisions of the N.D.P.S Act, I find no illegality or irregularity in appreciation of evidence and consequent conviction of the appellant under Section 20(b)(ii) (B) of the N.D.P.S Act.
9. In the matter of sentence, the court below has shown restraint. It cannot be said to be excessive or disproportionate to the offence revealed against the appellant. Therefore, I find no reason to interfere either in conviction or sentence in this case.
In the result, the appeal is dismissed as it is found devoid of any merit. The appellant/accused is entitled to get the benefit of set off under Section 428 Cr.P.C. The trial court is directed to take urgent steps to execute the sentence.
All pending interlocutory applications will stand dismissed.
amk Sd/ - A.HARIPRASAD, JUDGE.
//TRUE COPY// P.ATO JUDGE