IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 54 of 2008()
1. JOSE, AGED 45 YEARS,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.DILEEP P.PILLAI
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :17/01/2008
O R D E R
R. BASANT, J.
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Crl. R.P. No. 54 OF 2008
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Dated this the 17th day of January, 2008
O R D E R
This revision petition is directed against a
concurrent verdict of guilty, conviction and sentence in a
prosecution under Section 20(b)(ii) of the NDPS Act. The
petitioner now faces a sentence of rigorous imprisonment for
a period of six months for the offence punishable under
Section 20(b)(ii) of the NDPS Act.
2. The crux of the allegations against the petitioner is
that on 23.8.03 when the police party consisting of PWs 3 to
5, on receipt of prior information that sale of ganja was taking
place in the shop of the petitioner, reached the shop of the
petitioner, on search of the premises, 18 small packets of
ganja in a plastic cover was recovered by him. 10 gm were
taken for sampling. Mahazar Ext.P1 was prepared. PWs 1
and 2 are allegedly independent witnesses who had signed in
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the mahazar. The petitioner was arrested.
3. After completing the investigation, final report was
filed and cognizance was taken by the learned Magistrate.
The accused appeared before the learned Magistrate. He
denied the offences alleged against him whereupon PWs 1 to
8 were examined and Exts.P1 to P5 were marked by the
prosecution.
4. PWs 1 and 2, as stated earlier, are the
independent attestors to Ext.P1 seizure mahazar. Both of
them admitted their signatures in Ext.P1 but denied having
seen the seizure. PWs 3 to 5 are the police officials who
constituted the party, PW5 being the senior most officer.
Ext.P1 is the seizure mahazar prepared by PW5. Ext.P2 is
the search list and Ext.P3 is the search memo. Ext.P4 FIR
was promptly registered. Investigation was conducted by
PW7 who got the sample forwarded to PW6 who issued
Ext.P5 certificate to confirm that the article seized was ganja.
PW8 is a person who allegedly weighed ganja. He also
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turned hostile to the prosecution.
5. The accused took up a defence of total denial.
According to him, there was no recovery effected from his
premises. No defence evidence was adduced.
6. The learned Magistrate on an anxious
consideration of all the relevant inputs, came to the
conclusion that the oral evidence of PWs 3 to 5 which is
supported by the contents of the contemporaneous Ext.P1
seizure mahazar as also Exts.P2 to P4 can be safely
accepted and that such evidence when accepted clearly
reveals the complicity of the petitioner. Accordingly, the
learned Magistrate proceeded to pass the impugned
judgment. The learned Sessions Judge in appeal re-
appreciated and evaluated the entire materials and came to
the conclusion that the verdict of guilty, conviction and
sentence do not warrant any interference.
7. The petitioner claims to be aggrieved by the
impugned concurrent judgments. Called upon to explain the
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nature of challenge, which the petitioner wants to mount
against the impugned concurrent judgments, the learned
counsel for the petitioner submits that the courts below erred
in accepting and acting upon the oral evidence of PWs 3, 4
and 5. In view of the hostility of PWs 1, 2 and 8 alleged
independent witnesses, the courts below should not have
accepted the oral evidence of PWs 3 to 5, it is contended.
8. I find absolutely no merit in these contentions.
PWs 3 to 5 are police officials charged with a responsibility of
detecting offences and bringing the offenders to book. They
cannot be reckoned as interested witnesses whose testimony
deserves to be approached with doubt, suspicion and
reservation. It is to note that no case has been advanced that
PWs 3 to 5 have any animus against the petitioner and are in
any way interested in foisting a false case against the
petitioner. The evidence of PWs 1 and 2, though hostile,
gives respectability to Ext.P1 seizure mahazar, signature in
which is admitted by them. The contents of the
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contemporaneous Ext.P1 seizure mahazar supports the oral
evidence of PWs 3 to 5.
9. No other contentions are raised on merits. I have
gone through the impugned judgments. I am satisfied that the
verdict of guilty and conviction and absolutely justified and are
unexceptionable. In the absence of challenge on any specific
grounds, it is not necessary for me to advert to facts in any
greater detail.
10. The learned counsel for the petitioner finally prays
that leniency may be shown on the question of sentence. The
petitioner faces rigorous imprisonment for a period of six
months under Section 20(b)(ii) of the NDPS Act. When small
quantity of ganja alone is involved, the maximum sentence
that can be imposed is imprisonment for six months or fine or
both. The learned Magistrate has saved the petitioner of the
obligation to pay any fine but has imposed the maximum
sentence of imprisonment permissible under law. It is prayed
that leniency may be shown on the question of sentence. The
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petitioner has already undergone imprisonment for a period
exceeding four months, it is submitted. In the facts and
circumstances of this case, I find absolutely no reason to take
any lenient view in the matter. The ganja was stored for sale
in a shop. I am satisfied, in these circumstances, that no
further leniency also deserves to be shown.
11. This Crl.R.P. is, in these circumstances, dismissed.
(R.BASANT, JUDGE)
aks