{"id":97404,"date":"2010-03-23T00:00:00","date_gmt":"2010-03-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/andichami-andiappan-vs-the-sub-inspector-of-police-on-23-march-2010"},"modified":"2017-05-19T13:05:23","modified_gmt":"2017-05-19T07:35:23","slug":"andichami-andiappan-vs-the-sub-inspector-of-police-on-23-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/andichami-andiappan-vs-the-sub-inspector-of-police-on-23-march-2010","title":{"rendered":"Andichami @ Andiappan vs The Sub Inspector Of Police on 23 March, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
Andichami @ Andiappan vs The Sub Inspector Of Police on 23 March, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 2088 of 2009()\n\n\n1. ANDICHAMI @ ANDIAPPAN, S\/O. OCHATHEVAR\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. THE SUB INSPECTOR OF POLICE,\n                       ...       Respondent\n\n2. STATE OF KERALA REP. BY PUBLIC\n\n                For Petitioner  :SRI.T.G.RAJENDRAN\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice V.K.MOHANAN\n\n Dated :23\/03\/2010\n\n O R D E R\n                        V.K.MOHANAN, J.\n                      -------------------------------\n                  Crl. APPEAL No.2088 of 2009\n                      -------------------------------\n             Dated this the 23rd day of March, 2010.\n\n                           J U D G M E N T\n<\/pre>\n
      This appeal is directed, against the judgment dated 29.9.09<\/p>\n
in Session Case No.38\/08 of the Court of the Special Judge<\/p>\n
(NDPS Act cases), Vadakara, at the instance of the sole<\/p>\n
accused therein, challenging his conviction and sentence u\/s.20<\/p>\n
(b)(II)(C) of the Narcotic Drugs and Psychotropic Substances<\/p>\n
Act, 1985 (hereinafter referred to for short as ‘the NDPS Act’<\/p>\n
only).\n<\/p>\n
      2. The prosecution case is that on 15.6.2008 at about 4.55<\/p>\n
p.m., the accused was found in possession of 2.100 kg of ganja<\/p>\n
in front of KSRTC bus stop at Perinthalmanna and subsequently<\/p>\n
it came to the notice of the Detecting Officer that, he had also<\/p>\n
possessed another 30 kg. of ganja and thus seized altogether 32<\/p>\n
kg of ganja from his possession and thus he had committed the<\/p>\n
offence punishable u\/s.20(b)(II)(C) of the `NDPS Act’.<\/p>\n
      3. On the basis of the said allegation, Crime No.474\/08 was<\/p>\n
registered in the Perinthalmanna Police Station. After completing<\/p>\n
Crl. APPEAL No.2088 of 2009
\n                                    2<\/span><\/p>\n
the investigation, a report was filed in the court below on<\/p>\n
11.12.2008.        After hearing the prosecution as well as the<\/p>\n
defence, a formal charge was framed against the accused for the<\/p>\n
above offence and the same was read over and explained to the<\/p>\n
accused, who denied the charge and pleaded not guilty, which<\/p>\n
resulted in the further trial, during which the prosecution adduced<\/p>\n
its evidence consists of the oral testimony of Pws.1 to 13 and the<\/p>\n
documentary evidence such as Exts.P1 to P18 and material<\/p>\n
objects namely M.Os 1 to 10, which were produced and identified<\/p>\n
during the trial. No evidence, either oral or documentary, was<\/p>\n
produced from the side of the accused. On the basis of the rival<\/p>\n
pleadings and the materials on record, the Trial Court formulated<\/p>\n
four points for its consideration. The evidence and the<\/p>\n
incriminating circumstances, which emerged during the evidence<\/p>\n
of prosecution, were put to the accused u\/s.313 of Cr.P.C. and<\/p>\n
he denied the same and maintained the stand of total denial.<\/p>\n
Based upon the available materials and evidence on record, the<\/p>\n
Trial Court found that the accused is guilty of the charge levelled<\/p>\n
Crl. APPEAL No.2088 of 2009
\n                                 3<\/span><\/p>\n
against him and accordingly he is convicted u\/s.20(b)(II)(C) of<\/p>\n
the NDPS Act and consequently he is sentenced to undergo<\/p>\n
rigorous imprisonment for 10 years and to pay a fine of Rs.1 lakh<\/p>\n
and in default he is directed to undergo rigorous imprisonment<\/p>\n
for a further period of 6 months . Thus on the basis of the above<\/p>\n
impugned verdict, the accused is undergoing the sentence<\/p>\n
imposed against him and he is in custody right from the date of<\/p>\n
his arrest ie., on 15.6.2008. It is the above conviction and<\/p>\n
sentence challenged in this appeal.\n<\/p>\n
       4. I have heard Shri T.G.Rajendran, the learned counsel<\/p>\n
appearing for the appellant as well as the learned Public<\/p>\n
Prosecutor appearing for the State.\n<\/p>\n
       5. According to the prosecution, PW12 the Circle Inspector<\/p>\n
of Police of Perinthalmanna Police Station, who is the Detecting<\/p>\n
Officer, received an information that one person wearing `black<\/p>\n
kalli mundu’ and `black kalli shirt’, who is about at the age of 50<\/p>\n
years, from Attappadi, found in possession of ganja in a big<\/p>\n
shopper in front of the KSRTC bus stand at Perinthalmanna and<\/p>\n
Crl. APPEAL No.2088 of 2009
\n                                 4<\/span><\/p>\n
thus after preparing a report u\/s.42 and sending the same to his<\/p>\n
immediate superior officer, the Dy.S.P., he himself and the<\/p>\n
parties proceeded to the spot and on locating the accused, he<\/p>\n
was asked, whether he required the presence of any of the<\/p>\n
officers as contemplated u\/s.50 of the NDPS Act and as he<\/p>\n
answered positively, pursuant to which, a written request was<\/p>\n
sent to PW2, who is the Tahasildar, Perinthalmanna and in the<\/p>\n
presence of PW2, PW12 conducted a search and recovered<\/p>\n
2.100 kg of ganja as per Ext.P1 seizure mahasar, which was<\/p>\n
kept in a big shopper. The ganja thus seized is marked as M.O.1.<\/p>\n
       6. It is the further case of the prosecution that, after the<\/p>\n
seizure of ganja from the possession of the accused, he was<\/p>\n
arrested and when questioned under custody, he had revealed<\/p>\n
that he had kept about 30 kgs. of ganja in his residential house<\/p>\n
bearing No.S.P.3\/307, and the said house was searched and<\/p>\n
thus seized another 30 kgs. of ganja as per Ext.P5 seizure<\/p>\n
mahazar.         PW1, the Head Constable attached to the<\/p>\n
Perinthalmanna Police Station, was one of the police party who<\/p>\n
Crl. APPEAL No.2088 of 2009
\n                                    5<\/span><\/p>\n
accompanied PW12, the Detecting Officer and he had deposed<\/p>\n
in terms of the prosecution case and through him M.Os 1 to 10<\/p>\n
were identified.          The Tahasildar, Perinthalmanna, who was<\/p>\n
examined as PW2 also deposed in terms of the prosecution case<\/p>\n
and Ext.P1 was identified and the signatures that contained on<\/p>\n
the labels pasted on M.Os 1 and 10 were also identified. PW3 is<\/p>\n
the attestor to Ext.P2 scene mahazar, with respect to the first<\/p>\n
seizure. PW4 is also another Head Constable, who was one<\/p>\n
among the raiding party.         PW5 is a person cited     by the<\/p>\n
prosecution to prove that the weighing machine, which was used<\/p>\n
for weighing the materials, at the time of the first seizure, was<\/p>\n
taken from his bakery wherein he was working as the Food<\/p>\n
Supervisor. PW6 is another attestor to Ext.P1 seizure mahazar.<\/p>\n
PW7, is the Village Officer who prepared Ext.P3 sketch plan with<\/p>\n
respect to the first seizure. PW8 is another Village Officer who<\/p>\n
prepared Ext.P4 sketch plan related to the second seizure<\/p>\n
effected from the residential building of the accused, mentioned<\/p>\n
earlier.    Pws.9 and 10 are the attestors to Ext.P5 seizure<\/p>\n
Crl. APPEAL No.2088 of 2009
\n                                 6<\/span><\/p>\n
mahazar, with respect to the 2nd recovery effected from the<\/p>\n
house mentioned above. Ext.P6 is the scene mahazar related to<\/p>\n
the second seizure on which PW11 is the attestor. When PW12,<\/p>\n
the C.I. of Police was examined, the prosecution has proved<\/p>\n
Exts.P7 to P18 documents through him.        Thus Ext.P7 is the<\/p>\n
report prepared and sent by PW12 to his immediate superior<\/p>\n
officer ie., Dy.S.P., u\/s.42 of NDPS Act. Exts.P8 and P9 are the<\/p>\n
arrest memo and inspection memo respectively. Ext.P10 is the<\/p>\n
FIR, suo motu registered by PW12. Ext.P11 is the confession<\/p>\n
statement of the accused recorded by PW12. Exts.P12 and P14<\/p>\n
are property list and forwarding note respectively. Ext.P13 is the<\/p>\n
report prepared and sent by PW12 u\/s.57 of NDPS Act. Ext.P15<\/p>\n
is a report, filed by PW12 to alter the section that contained in<\/p>\n
Ext.P10 FIR. Ext.P16 is the chemical analysis report. Exts.P17<\/p>\n
and P18 are the ownership certificates with respect to the shed<\/p>\n
attached and maintained therein to the house mentioned and the<\/p>\n
ownership of the building from where the second seizure was<\/p>\n
effected and those documents were proved through PW13, the<\/p>\n
Crl. APPEAL No.2088 of 2009
\n                                  7<\/span><\/p>\n
Secretary of Sholayur Grama Panchayath.\n<\/p>\n
       7.   Thus on the basis of the above materials, it is evident<\/p>\n
that at the first instance, ganja was found in the big shopper and<\/p>\n
on weighing, it was found that it was having the weight of 2kg<\/p>\n
and by Ext.P1 seizure mahazar, two samples were drawn, each<\/p>\n
containing 50 gms and the same were properly packed, sealed<\/p>\n
and the label is affixed containing the signatures of witnesses<\/p>\n
including Pws.2 and 12 and the accused. The remaining 1.90<\/p>\n
kg. of ganja were separately packed in the same way. As per the<\/p>\n
proceedings, after the seizure of the ganja from the big shopper,<\/p>\n
PW12 conducted search of the purse of the accused and thus<\/p>\n
recovered from the waist of the accused, 100 gms of ganja, from<\/p>\n
which also the sample was taken and separately labelled. It is<\/p>\n
thereafter, the accused was arrested.\n<\/p>\n
       8. The accused and the contraband article, which seized<\/p>\n
from the possession of the accused, were brought to the police<\/p>\n
station, whereupon Ext.P10 FIR was registered. According to<\/p>\n
PW12, during the questioning of accused under custody, he<\/p>\n
Crl. APPEAL No.2088 of 2009
\n                                 8<\/span><\/p>\n
revealed that the balance quantity of ganja was kept at        his<\/p>\n
house, on the basis of which PW12 and party proceeded to the<\/p>\n
house of the accused, ie., Kulukkil House, at Sholayur,<\/p>\n
Attappadi, Aanakkatti route.     It is the specific case of the<\/p>\n
prosecution, as revealed from the deposition of PW1 that, in front<\/p>\n
of the house of the accused, there is a tea shop and the accused<\/p>\n
took out the key of the house, which was kept beneath one of the<\/p>\n
benches in the above mentioned tea shop and using that key,<\/p>\n
the accused opened the house and he took another bunch of<\/p>\n
keys from the drawer of a table, kept in the verandah of the<\/p>\n
house and thereafter he opened other rooms of the house.<\/p>\n
According to PW1, in the bed room 3 sacks were found under<\/p>\n
the cot, out of which, 2 were plastic sacks and one was jute sack.<\/p>\n
According to the prosecution, PW12 opened the 3 sacks which<\/p>\n
contained ganja. The said ganja was also seized wide separate<\/p>\n
mahazar after drawing separate samples from each of the sacks.<\/p>\n
Thereafter the accused was produced before the Court with the<\/p>\n
remand report and the contraband articles and the materials<\/p>\n
Crl. APPEAL No.2088 of 2009
\n                                    9<\/span><\/p>\n
were also produced before the Court as per Ext.P12 property list.<\/p>\n
As per Ext.P14 forwarding note, a request was made to send the<\/p>\n
samples for chemical analysis, on the basis of which Ext.P15<\/p>\n
chemical analysis report was obtained. It is on the basis of the<\/p>\n
above materials and evidence, the trial court found that the<\/p>\n
accused is guilty of the charges levelled against them.<\/p>\n
       9.   The learned counsel Mr.T.G.Rajendran appearing for<\/p>\n
the appellant, strenuously submitted that the entire proceedings<\/p>\n
adopted by the prosecution for the seizure of the contraband<\/p>\n
article from the alleged possession of the accused is contrary to<\/p>\n
the procedure prescribed by the NDPS Act. The learned counsel<\/p>\n
for the appellant is specific in his submission that, the first<\/p>\n
seizure claimed by the prosecution is conducted in gross<\/p>\n
violation of the mandatory provisions contained in Section 50 of<\/p>\n
the NDPS Act and therefore the conviction entered into by the<\/p>\n
trial court with respect to the first seizure is liable to be set aside.<\/p>\n
The counsel also submitted that, the second seizure, is also<\/p>\n
diametrically opposed to the provisions contained in the special<\/p>\n
Crl. APPEAL No.2088 of 2009
\n                                   10<\/span><\/p>\n
enactment namely, the NDPS Act. The learned counsel pointed<\/p>\n
out that, according to the prosecution, the disclosure about 30 kg<\/p>\n
of ganja was made by the accused, while he was in custody,<\/p>\n
pursuant to the seizure and arrest, that effected on 15.6.2008.<\/p>\n
By inviting my attention to Section 42 of NDPS Act, the learned<\/p>\n
counsel submitted that even if the entire prosecution case is<\/p>\n
admitted as true, the disclosure which allegedly confessed by the<\/p>\n
accused while he was under custody, is a new information,<\/p>\n
therefore the investigating agency has to proceed under the<\/p>\n
mandatory provisions contained in Section 42 of NDPS Act.<\/p>\n
According to the learned counsel, in the present case no such<\/p>\n
step was taken by the prosecution and therefore the conviction<\/p>\n
and sentence           of the accused, connected with the second<\/p>\n
seizure is liable to be set aside.\n<\/p>\n
       10.   On the other hand, the learned Public Prosecutor<\/p>\n
submitted that the first seizure was effected by fully complying<\/p>\n
with the procedure, prescribed in Section 50 of NDPS Act and as<\/p>\n
evidenced by the deposition of PW2 and Ext.P1 seizure<\/p>\n
Crl. APPEAL No.2088 of 2009
\n                                    11<\/span><\/p>\n
mahazar, it is sufficient to show that there is no procedural defect<\/p>\n
with respect to the first seizure. It is also the submission of the<\/p>\n
learned Public Prosecutor that the second seizure is effected, as<\/p>\n
a continuation of the first search and seizure and therefore the<\/p>\n
trial court is absolutely right in finding the guilt of the accused for<\/p>\n
the possession of the entire quantity of ganja including that of the<\/p>\n
2nd seizure and therefore no interference is warranted.<\/p>\n
       11. I have carefully considered the arguments advanced by<\/p>\n
both the counsel for the appellant as well as the learned Public<\/p>\n
Prosecutor and also perused all the materials on record and also<\/p>\n
the evidence.\n<\/p>\n
       12. The first contention raised by the learned counsel for<\/p>\n
the appellant is that PW12, the C.I. of police, Perinthalmanna<\/p>\n
Police Station, who is the Detecting Officer, himself is a Gazetted<\/p>\n
Officer, and if the prosecution case is true, there was no<\/p>\n
necessity for him to procure the presence and permission of<\/p>\n
PW2, another the Gazetted Officer. It is his further contention<\/p>\n
that, inspite of the above fact, though PW12 brought PW2 to the<\/p>\n
Crl. APPEAL No.2088 of 2009
\n                                  12<\/span><\/p>\n
spot, the search was not conducted in accordance with the<\/p>\n
procedure contained in S.50 of the NDPS Act. According to him,<\/p>\n
in the present case, the search was conducted in gross violation<\/p>\n
of the mandate contained in sub section 3 of S.50 of the NDPS<\/p>\n
Act. In order to substantiate the above submission, the learned<\/p>\n
counsel took me through Ext.P1 seizure mahazar and the<\/p>\n
depositions of PWs.2 and 12. It is submitted that nowhere in the<\/p>\n
deposition of PW2 or PW12 had stated that a direction or order<\/p>\n
was issued by PW2 to PW12 permitting him for conducting the<\/p>\n
search. According to the learned counsel, only after receiving an<\/p>\n
order from PW2, to conduct the search of the accused, PW12<\/p>\n
can proceed with further.       I am unable to accept the above<\/p>\n
contention. Section 50(3) reads as follows,<\/p>\n
             ” the Gazetted Officer or the Magistrate before whom<\/p>\n
               any such person is brought shall, if he has no<\/p>\n
               reasonable ground for search, forthwith discharge<\/p>\n
             the person but otherwise shall direct that search be<\/p>\n
             made.”\n<\/p>\n
Crl. APPEAL No.2088 of 2009
\n                                   13<\/span><\/p>\n
In the present case, it is pertinent to note that, PW12 and party<\/p>\n
went to the first spot in pursuance of a secret information<\/p>\n
received by him. Before proceeding to the spot, PW12 send<\/p>\n
Ext.P7 report        to his immediate superior officer namely, the<\/p>\n
Dy.S.P., u\/s.42 of NDPS Act. It is also relevant to note that, in<\/p>\n
the case of 2.1 kg of ganja, the seizure was effected from the big<\/p>\n
shopper which was holding by the accused and the same was<\/p>\n
proved through the evidence of prosecution, especially, the oral<\/p>\n
testimony of PW2.          According to me, in the given facts and<\/p>\n
circumstances of the case, being a Gazetted Officer, PW2 can<\/p>\n
discharge the accused in terms of the condition contained in<\/p>\n
S.50(3), if he was satisfied that there was no reasonable ground<\/p>\n
for search. But, he did not discharge the person on his<\/p>\n
satisfaction that there is scope for further search, since before<\/p>\n
the search of the person of the accused himself, 2.1 kg of ganja<\/p>\n
had already been detected from M.O.2 big shopper, which was<\/p>\n
held by the accused at the relevant point of time. Sub-section (3)<\/p>\n
of S.50 of NDPS Act does not mandate the Gazetted Officer or<\/p>\n
Crl. APPEAL No.2088 of 2009
\n                                 14<\/span><\/p>\n
the Magistrate to, pass an order either in writing or in oral to<\/p>\n
proceed with the search. The entire provisions contained in S.50<\/p>\n
incorporated with a view to ensure that, the search and seizure<\/p>\n
were conducted in a proper way and the accused shall not be<\/p>\n
prejudiced in any manner. In the light of the above discussion<\/p>\n
and in the light of the materials and evidence on record, which I<\/p>\n
referred above, I am of the view that the contention raised by the<\/p>\n
counsel for the appellant with respect to the first seizure, does<\/p>\n
not appear to be a sound one and accordingly the same is<\/p>\n
rejected.      No other grounds or contentions are raised with<\/p>\n
respect to the first seizure.\n<\/p>\n
       13. In the result, I approve the finding arrived on by the<\/p>\n
court below at point no.1 and accordingly, it is confirmed that the<\/p>\n
accused was found in possession of 2.100 kg. of ganja in front of<\/p>\n
KSRTC bus stand at Perinthalmanna on 15.6.2008 at about 4.55<\/p>\n
p.m.\n<\/p>\n
       14.   The second point raised by the learned counsel is<\/p>\n
mainly with respect to the second seizure, which according to<\/p>\n
Crl. APPEAL No.2088 of 2009
\n                                   15<\/span><\/p>\n
me, assumes importance in the light of the facts and<\/p>\n
circumstances involved in the present case. It is beyond dispute<\/p>\n
that the second seizure as per Ext.P5 was effected, on the basis<\/p>\n
of Ext.P11 confession statement of the accused, which is<\/p>\n
allegedly made by him while he was in custody due to the arrest<\/p>\n
in pursuance of the first seizure, that effected as per Ext.P1<\/p>\n
seizure mahazar.           According to the learned counsel, the<\/p>\n
statement itself, that contained in Ext.P11 is inadmissible u\/s.27<\/p>\n
of the Indian Evidence Act. The learned counsel pointed out<\/p>\n
that, even according to the prosecution the first seizure was<\/p>\n
effected, based upon an information received, which was<\/p>\n
recorded u\/s.42 of the NDPS Act.           If that be so, the same<\/p>\n
procedure has to be adopted.           If the so called confession<\/p>\n
statement is true, the prosecution agency wanted to act upon<\/p>\n
such a disclosure statement, since it was acting under the<\/p>\n
provisions of the NDPS Act. According to the learned counsel,<\/p>\n
the alleged subsequent seizure, if the same is admitted as true,<\/p>\n
is the subject matter of another prosecution and the clubbing of<\/p>\n
Crl. APPEAL No.2088 of 2009
\n                                  16<\/span><\/p>\n
the second seizure with the first seizure has           very much<\/p>\n
prejudiced the accused in setting up his defence in a proper way.<\/p>\n
It is also the contention of the learned counsel that, at the time of<\/p>\n
Section 313 questioning of the accused, no question was put to<\/p>\n
him with respect to the second seizure and under that count also,<\/p>\n
the accused was prejudiced.          Whereas the learned Public<\/p>\n
Prosecutor submitted that, the second seizure is in pursuance of<\/p>\n
the first seizure, in which the accused is involved and repetition<\/p>\n
of the procedure u\/s.42 of NDPS Act is not at all required.<\/p>\n
       15.   The contention so raised, as I pointed out earlier,<\/p>\n
involves a vital question, which was not raised during the trial, as<\/p>\n
fairly conceded by the learned counsel for the appellant and as<\/p>\n
such there was no decision of the trial court on this issue. In this<\/p>\n
juncture, it is pertinent to note that though I have approved the<\/p>\n
finding of the trial court with respect to the first point regarding<\/p>\n
the seizure of 2.100 kg. of ganja, the sentence imposed under<\/p>\n
that count, which is contemplated by the NDPS Act, is only a<\/p>\n
maximum sentence of 10 years. But in the present case, the<\/p>\n
Crl. APPEAL No.2088 of 2009
\n                                 17<\/span><\/p>\n
total sentence awarded against the accused is 10 years of<\/p>\n
rigorous imprisonment. The said sentence was imposed on the<\/p>\n
finding that, the accused involved in contravention of the<\/p>\n
provisions of the Act whereby, he was found in possession of<\/p>\n
altogether 32 kg. of ganja, which will exceed the commercial<\/p>\n
quantity.     If the prosecution is not able to substantiate the<\/p>\n
allegation by legally protecting the second seizure, in the light of<\/p>\n
the legal questions that raised by the counsel for the appellant,<\/p>\n
definitely the quantum of sentence has to be reconsidered by<\/p>\n
invoking appropriate provision. Therefore, the failure on the part<\/p>\n
of the defence, in raising the question before the trial court,<\/p>\n
whereby the trial court had no occasion to consider the question,<\/p>\n
might have a bearing on the issue of sentence and fate of the<\/p>\n
trial. Therefore, the question raised by the trial court under point<\/p>\n
No.2 and the finding thereon require reconsideration and the<\/p>\n
finding arrived on by the trial court under that point is liable to be<\/p>\n
set aside. As the question now raised by the learned counsel,<\/p>\n
has not been raised in the trial court and the trial court has no<\/p>\n
Crl. APPEAL No.2088 of 2009
\n                                 18<\/span><\/p>\n
opportunity to consider such a question, it is only proper to<\/p>\n
remand back the case for the proper consideration and fresh<\/p>\n
decision of the trial court.\n<\/p>\n
       16. In the light of the above discussions and the materials<\/p>\n
referred above, I am of the view that while maintaining the<\/p>\n
finding arrived on by the Court below under point no.1, the<\/p>\n
finding under point no.2 is liable to be set aside and the question<\/p>\n
shall be reconsidered by the trial court afreshly. Going by S.20<\/p>\n
and various provisions contained in the NDPS Act, it can be seen<\/p>\n
that the said section contemplates punishment for contravention<\/p>\n
in relation to cannabis plant and cannabis. If the allegations are<\/p>\n
proved, certainly the court has to enter into a finding as<\/p>\n
contemplated by S.20 and on such a finding of conviction,<\/p>\n
adequate sentence has to be imposed depends upon the<\/p>\n
quantity involved.\n<\/p>\n
       17. In the present case as pointed out earlier, the trial court<\/p>\n
had imposed the present punishment on the finding that, the<\/p>\n
accused was found in possession of 32 kg of ganja, which is a<\/p>\n
Crl. APPEAL No.2088 of 2009
\n                                 19<\/span><\/p>\n
commercial quantity. Ofcourse, the trial court came into such a<\/p>\n
conclusion based upon the two seizure effected in the present<\/p>\n
case. With respect to the first seizure, this court as per the<\/p>\n
discussion made above, approved the finding of the court below.<\/p>\n
With respect to the second seizure, as I found earlier, the matter<\/p>\n
deserves to be remanded to the trial court for a fresh<\/p>\n
consideration and finding of the court below, regarding the<\/p>\n
second seizure.\n<\/p>\n
       18. The learned counsel relying upon the decision of this<\/p>\n
Court in Mohanan Vs. State of Kerala [2007(4) KLT 408],<\/p>\n
submitted that the investigation as well as the evidence with<\/p>\n
respect to the second seizure is liable to be rejected. It is also<\/p>\n
pointed out that, the accused is prejudiced because of the<\/p>\n
framing up of the consolidated charge based upon the two<\/p>\n
seizures. First of all, I am of the view that, the said decision is<\/p>\n
not applicable in the present case for various reasons. The facts<\/p>\n
involved in the case cited by the learned counsel are with respect<\/p>\n
to the prosecution, under the Provisions of the Abkari Act and the<\/p>\n
Crl. APPEAL No.2088 of 2009
\n                                 20<\/span><\/p>\n
subsequent seizure was effected from a second person though<\/p>\n
based upon an information furnished by the accused. In the<\/p>\n
present case, the allegation is under the provisions of the NDPS<\/p>\n
Act, where specific provisions are made with respect to the<\/p>\n
sentence based upon the quantity involved and the second<\/p>\n
seizure, was effected from the residential house of the appellant<\/p>\n
himself and the prosecution has no case that the contraband<\/p>\n
article, which is allegedly seized from the house of the appellant<\/p>\n
is kept by any other person. In the present case, the charge<\/p>\n
against the appellant is that he contravened the provisions of<\/p>\n
NDPS Act, for having possession of 32 kgs. of ganja. As pointed<\/p>\n
out earlier, the subsequent seizure on the basis of the<\/p>\n
confession statement made by the appellant is a matter to be<\/p>\n
reconsidered by the trial court. The learned Public Prosecutor<\/p>\n
relying upon the decision in Sajan Abraham Vs. State of Kerala<\/p>\n
[2001 (4) Crl.Law Journal 4002], submitted that the stringent<\/p>\n
nature of the provisions contained in the NDPS Act shall not be<\/p>\n
construed, so as to help the accused to escape from the clutches<\/p>\n
Crl. APPEAL No.2088 of 2009
\n                                  21<\/span><\/p>\n
of law. As I pointed out earlier, the question raised in this appeal<\/p>\n
by the learned counsel for the appellant is a vital question which<\/p>\n
has to be considered by         the trial court, in the light of the<\/p>\n
evidence and materials on record and as the point was not<\/p>\n
raised in the trial court, the trial court had no occasion to come<\/p>\n
into its on finding of merit. The learned counsel submitted that,<\/p>\n
regarding the second seizure, the accused was not questioned<\/p>\n
u\/s.313 of Cr.P.C.\n<\/p>\n
       19. In the result, especially in the light of the above facts<\/p>\n
and circumstances involved in the case and the discussion<\/p>\n
made, the finding arrived on by the court below under point no.1<\/p>\n
is confirmed but the finding with respect to the finding under point<\/p>\n
no.2 is set aside and remand the matter back to the trial court for<\/p>\n
its fresh consideration and decision. It is made clear that after<\/p>\n
considering the matter, the trial court is free to award suitable<\/p>\n
punishment, on the basis of its finding under point no.1, as<\/p>\n
approved by this court and also on the basis of the out come<\/p>\n
after fresh consideration of the matter under point no.2. As the<\/p>\n
Crl. APPEAL No.2088 of 2009
\n                                   22<\/span><\/p>\n
appellant had already convicted u\/s.20(b)(II)(c) of the NDPS Act,<\/p>\n
the said conviction is sustained and the matter is being<\/p>\n
remanded for imposing suitable punishment, on the basis of the<\/p>\n
outcome of the remanded issue, after hearing the accused, for<\/p>\n
which if it is necessary the trial court is free to procure the<\/p>\n
presence of the accused from the jail.\n<\/p>\n
       In the result, this appeal is partly allowed, while confirming<\/p>\n
the conviction u\/s.20(b)(ii)(C) of the NDPS Act and also the<\/p>\n
finding of the court below under point No.1 and to the extent by<\/p>\n
setting aside the finding under 2nd point and the matter is<\/p>\n
remanded back to the trial court for disposal, awarding adequate<\/p>\n
punishment, which shall be done as expeditiously as possible, at<\/p>\n
any rate within 3 months from the date of receipt of the judgment<\/p>\n
and back records from this Court.\n<\/p>\n<\/p>\n
                                                    V.K.MOHANAN,
\n                                                         Judge.\n<\/p>\n
ami\/<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Andichami @ Andiappan vs The Sub Inspector Of Police on 23 March, 2010 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A.No. 2088 of 2009() 1. ANDICHAMI @ ANDIAPPAN, S\/O. OCHATHEVAR … Petitioner Vs 1. THE SUB INSPECTOR OF POLICE, … Respondent 2. STATE OF KERALA REP. BY PUBLIC For Petitioner :SRI.T.G.RAJENDRAN […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-97404","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nAndichami @ Andiappan vs The Sub Inspector Of Police on 23 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/andichami-andiappan-vs-the-sub-inspector-of-police-on-23-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Andichami @ Andiappan vs The Sub Inspector Of Police on 23 March, 2010 - 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