JOSE THOMAS AND Vs. SUPERINTENDENT OF CENTRAL EXCISE CUSTOMS PREVENTIVE AND INTELLIGENCE UNIT THIRUVANANTHAPURAM

JUDGEMENT

(1.) Both the appeals have arisen challenging the conviction and sentence delivered by the IInd Addl. Sessions Judge, Thiruvananthapuram in S. C. No. 336 of 1993, in which there were three accused, out of whom the 3rd accused was acquitted and the 1st and 2nd accused were found guilty under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") and thereby they were sentenced to undergo Rigorous Imprisonment for 15 years each and also to pay a fine of Rs. 2 lakhs and in default in the payment of fine, to undergo Rigorous Imprisonment for 21/2 years more. First accused has filed Crl. Appeal No. 491 of 1996 and the 2nd accused has filed Crl. Appeal No. 383 of 1996.

(2.) The crux of the prosecution case and the evidence let in by it for basing the conviction would be briefly stated hereunder: On 8-1-1993 at about 8.00 a.m., P.W. 3, the Superintendent of Central Excise Customs Preventive and Intelligent Unit, Thiruvananthapuram obtained confidential information from a person that there would be a likelihood of taking place a business of Hashish oil at about 12.30 noon in Padmanabha Tourist Home, Kovalam Junction, Kovalam. The above information was reduced into writing and kept under lock and key by P.W. 3 and in addition to it, he conveyed the information to the Assistant Collector, Customs, over phone and also by a person. Then as per the direction of the Superior Officer, P.W. 3 with P.Ws. 1 and 5 and some other Officers proceeded to the Padmanabha Tourist Home, Kovalam. On reaching the Tourist Home, there they found P.W. 7, the room boy, to whom they disclosed their identity and also wanted to verify the register. On verifying the register, marked as Ext. P1, they found that in room No. 2 one Asokan (first accused) was found to be staying and therefore, they proceeded to room No. 2 taking with them P.Ws. 2 and 6, independent witnesses, as they voluntarily agreed to be the witnesses for the search of room No. 2. In the said room P.W. 3 and his party disclosed their identity and also informed the 1st accused their intention of searching the room for which the 1st accused did not express any objection. In the course of the search, P.W. 3 found packets wrapped in a polythene cover kept under the mattress laid on the cot. When the polythene cover was opened, there were two packets inside the cover containing black coloured oil. On examination, it was found that each packet contained 500 grams of hashish oil. Two samples of 24 grams from each packet were taken and the said samples packets were sealed and the remnants was separately packed and sealed. On each packet, the signatures of the 1st accused, witnesses and P.W. 3 were obtained and thereafter Ext. P2 mahazar was prepared and it was also signed by the 1st accused, witnesses and P.W. 3. P.W. 3 then made enquiry with the 1st accused as to how he obtained the contraband for which the reply of the 1st accused was that it was entrusted to him by one Jose Thomas, the 2nd accused, who was staying in room No. 5 of Hotel Kaivalya, Thampanoor, in order to sell the Hashish oil. Therefore, for the purpose of follow-up action in hotel Kaivalya, P.W. 3 issued a search warrant to P.W. 5, Inspector and P.W. 3, thereafter, with the 1st accused and the contraband seized from the Padmanabha Tourist Home went to the Customs Office.

(3.) P.W. 5 with P.Ws. 2 and 6 proceeded to hotel Kaivalya and searched room No. 5 in pursuance of Ext. P 4 search warrant issued to him by P.W. 3. In room No. 5, there were accused 2 and 3. During search, P.W. 5 could not find out any contraband in the said room. However, he prepared Ext. P 3 mahazar in which the 2nd and 3rd accused, P.Ws. 2 and 6 have signed. Then P.W. 5 took 2nd and 3rd accused to P.W. 3 for further interrogation. Accused 1 to 3 gave written statements in their own handwriting with their signatures and date to P.W. 3. Exts. P5, P 6 and P 7 are the statements given by the accused 1 to 3 respectively to P.W. 3.