LISSY Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant, a lady, who is the sole accused in S. C. No. 529 of 2010 of the Court of Additional Sessions Judge (ADHOC-II), Ernakulam is challenging the conviction and sentence imposed on her under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the N. D. P. S. Act') in the above sessions case, vide judgment dated 4-10-2011.

(2.) The case of the prosecution is that the accused had kept in her possession 234 ampules of Buprenorphine (Lupigesic), 29 ampules of Diazepam and 27 ampules of Phenergan for the purpose of sale, without any licence at about 6 p.m. on 24-7-2010 in a public road, situated on the northern side of Kaloor International Stadium compound. Ernakulam and thus, committed the offence punishable under Section 22(c) of the N. D. P. S. Act. Consequently, Crime No. 1326/ 2010 of Palarivattom Police Station was registered for the above offence and on completing the investigation, a report was filed before the trial Court based upon which S. C. No. 529 of 2010 is instituted and when the accused was produced, after hearing the prosecution as well as the defence, a formal charge was framed against her under Section 22(c) of the NDPS Act and when the said charge was read over and explained to the accused, she denied the same and pleaded not guilty. Consequently, the prosecution adduced its evidence consisting of the testimony of PWs. 1 to 6 and Exts. PI to P15. From the side of the defence, besides examining DWs. 1 and 2, Exts. Dl to D3 were also marked. MOs. 1 to 10 were also identified and marked as material objects. After considering the entire evidence and materials on record, the trial Court found that the accused had kept in her possession commercial quantity of psychotropic substances without any licence and thereby committed the offence punishable under Section 22(c) of the N. D. P. S. Act and accordingly, she was found guilty and convicted thereunder. On such conviction, the trial Court sentenced the appellant to undergo rigorous imprisonment for ten years and to pay fine of Rupees one lakh, with a default sentence of rigorous imprisonment for one year. Set off is allowed. The above findings, order of conviction and sentence of the trial Court are challenged in this appeal.

(3.) In order to prove the above case, the prosecution mainly depends upon the evidence of PW. 1, the then S. I. of Police, Palarivattom Police Station, who detected the crime. When PW. 1 was examined, he had deposed that on 24-7-2010, he was working as S. I. of Police, Palarivattom Police Station and he got information at about 5 p.m. while he was in the Police Station to the effect that one lady is conducting the sale of psychotropic substance near the stadium at Kaloor and he reduced the said information into writing in the General Diary of the Police Station, and thereafter, he reported the above facts to his superior officer viz., C. I. of Police. Ext. PI is the report so given by PW. J to his superior officer. PW. I has further deposed that thereafter, he proceeded and reached at the place of occurrence along with the police party at about 5.20 p.m. and he had seen one lady, who was standing near the shop, Kaghas Travels housed in a building situated in front of the stadium. PW. 1 also deposed that he had gathered her address from her and he had convinced her about her right in getting her body searched in the presence of the Magistrate or a Gazetted Officer, and on conveying such right, the said lady demanded the presence of the Gazetted Officer and therefore, PW. J ensured the presence of the Excise Enforcement Circle Inspector of Narcotic Cell, who reached the spot by 5.55 p.m. According to PW. 1. the Gazetted Officer has conducted the search of the persons of the Police personnel including PW. 1 and no contraband article was seized during such search. According to PW. 1, the bag which was in the hands of the accused, was got examined by CWs. 6 and 7, the woman Police Constables in the presence of the abovementioned Gazetted Officer and himself. MOl is the said vanity bag. PW1 deposed that on such examination, a plastic cover was seen, which is marked as M02 and the said plastic cover contained the psychotropic substances. According to PW1. the woman Police Constables, on instruction and at the instance of PW.1, had taken samples from the contraband articles found in the possession of the accused. The samples are marked as SI to S6 and the remaining items are marked as Exts. PI to P3. According to PW.l, he had sealed and labelled the samples as well as the residue after drawing the sample. During the examination of PW.l, the residue of Lupegesic ampules are identified and marked as M04 series and Diazepam ampules are marked as M05 series. PW. 1 has further deposed that the entire proceedings were recorded in a mahazar prepared by himself and Ext. P.4 is the said mahazar. According to PW. 1, the mobile phone and a sum of Rs. 5400/- in cash have been seized from the MOl bag of the accused. Ext. P.6 is marked through PW. 1, which is the specimen impression of seal, marked in this case. According to PW. 1, on completing the seizure and after the arrest of the accused, he returned to the Police Station and thereafter, he registered a crime as Crime No. 1326/2010 of the Palarivattom Police Station for the offence punishable under Section 22(c) of the N. D. P. S. Act. Ext. P7 is the E 1. R. prepared by him. According to PW. 1, he produced the material objects before the Court with a forwarding note to send the samples to the chemical analyst. According to PW. 1, he had made a report to his superior Officer regarding the seizure of the contraband article as well as the arrest of the accused and the said report is marked as Ext. P. 10.