BALRAJ @ MANI @ PALRAJ Vs. STATE OF KERALA

JUDGEMENT

(1.) In this appeal preferred under Section 374 of the Code of Criminal Procedure, hereinafter referred to as the 'Cr.P.C.', the convict in S.C.No.321/2004 of the II Additional Sessions Judge, Thiruvananthapuram, challenges the judgment dated 25.02.2006. That case was taken on file on a charge sheet laid by the Circle Inspector of Police, Parassala in Crime No. 334/2002 of Parassala police station. The precise allegation against the appellant is that on 23.07.2002, at 3.10 P.M., the Sub Inspector of Police, Parassala police station found him travelling in a Mahindra tempo van bearing Registration No. TN- C-2041 on the Kaliyikavila - Parassala road; at Karali junction in Parassala Village, the Sub Inspector intercepted the vehicle and found the appellant travelling, carrying a packet containing 2.900 kgs. of ganja. The item was seized following the procedural formalities and the crime was registered. Samples were collected from the ganja from the place of detection itself, in the presence of independent witnesses and the Circle Inspector of Parassala, a gazetted officer. Later, the investigation was handed over to the Circle Inspector. They produced the contraband before the court along with the appellant. After investigation and collection of report from the Forensic Science Laboratory, the charge sheet was laid before the Special Court and thus the case was taken on file.

(2.) On appearance, the appellant was served with all the records relied on by the prosecution. He was defended by a counsel of his choice. After hearing counsel on both sides, when a charge for offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985, for short the Act, was framed, read over and explained, he pleaded not guilty. He was on bail.

(3.) Seven witnesses were examined on the side of the prosecution. Exts.P1 to P11 were also marked. Material objects were identified and marked as MO1 to 4 series. After completing evidence, when examined under Section 313(1)(b) of the Cr.P.C., the appellant reiterated his innocence. He denied all the incriminating evidence tendered against him. To the penultimate question he replied that he is a coolie by profession, on 23.07.2002 at about 8.45 A.M., he reached Parassala in connection with his avocation, then the Sub Inspector of Police questioned him. The Sub Inspector did not relish the answers given by him and hence he was slapped on his face and pulled by his shirt. He resisted the attack against him, then he was forcibly taken to the police station and kept inside the cell. Later on 24.07.2002 he was made to sign certain papers and at about 3.00 P.M., was asked to enter a Mahindra van. Later he was produced before the court, that he is innocent. Even though separate enquiry is not seen conducted under Section 232 of the Cr.P.C., it is evident from the proceedings paper that after the examination under Section 313 of the Cr.P.C., sufficient opportunities were afforded for adducing evidence in defence. From the materials on record, it is also certain that the appellant could not have been acquitted under Section 232 of the Cr.P.C. The appellant did not adduce any oral evidence in defence. However, a case diary contradiction of PW5 was marked as Ext.D1. After hearing counsel on both sides, by the impugned judgment, the learned Judge found him guilty of offence punishable under Section 20(b)(ii)(B) of the Act and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 5,000/-, in default to undergo imprisonment for four months. He was also allowed to set off the period of judicial custody undergone during the period of investigation.