SANTHA Vs. STATE

JUDGEMENT

(1.) THE appellant is a lady, who faced the prosecution for the offence punishable under (hereinafter referred to for short as "the NDPS Act" only) in S.C.No.636/01 of the court of 1st Additional Sessions Judge, Kollam, and her grievance is that by the judgment dated 18.10.2003 in the above Sessions case, she is convicted and sentenced for the said offence. Therefore, she preferred the above appeal challenging the above judgment and the conviction and sentence.

(2.) THE prosecution case is that, on 17.3.2000 at about 2 p.m., the accused was found in possession of 9 gms. 50 mg. of ganja in 7 small packets for sale in the residential building of the accused bearing No.M.C/250 in beach north ward in Kollam West village and thereby the accused has committed the offence punishable under section 20(b)(1) of the NDPS Act. With the above allegation, Crime No.16/00 was registered in the Pallithottom Police Station and when the investigation was completed, a report was filed, on the basis of which, S.C.No.636/01 was instituted and when the accused appeared, a formal charge was framed against her for the offence punishable under section 20(b)(1) of the NDPS Act and the accused denied the charge and pleaded not guilty when the said charge read over and explained to her. As the accused denied the charge, the trial was proceeded further, during which, Pws.1 to 7 are examined and Exts.P1 to P5 are marked and M.Os.1 to 4 series are also identified from the side of the prosecution. The trial court finally found that the conscious possession of the contraband material by the accused has been established in the case and the overtact of the accused would come within the ambit of offence punishable under section 20(b)(1) r/w 20(b)(ii)(A) of the NDPS Act, 9/2001. Accordingly, she is convicted thereunder. On such conviction, she is sentenced to undergo rigorous imprisonment for 3 months and to pay a fine of Rs.1,000/ - and in default to undergo simple imprisonment for 2 weeks. Set off is allowed under section 428 of Cr.P.C. It is the above finding and order of conviction and sentence that are challenged in this appeal.

(3.) AS per the prosecution allegation, the seizure in the present case was effected by PW6, who conducted search on the person of the accused in pursuant to a reliable information received by him. According to PW6, on 17.3.2000, he was the Sub Inspector of Pallithottom Police Station and on receiving the information, after having informed the same to his immediate superior officer, namely, the Circle Inspector of Police, himself accompanied by PW2 and PW4, reached in the house of the accused and he conducted search on the body of the accused in the presence of a gazetted officer and thus from the waist of the accused, 7 small packets of ganja kept in a plastic cover were recovered and from the house of the accused, the currency notes worth Rs.200/ - kept in a tin were also recovered. According to PW6, after completing the proceedings, he reached in the Police Station and thereafter prepared FIR in Crime No.16/00 of Pallithottom Police Station and produced the accused as well as the contraband article and other material objects before the court. The further investigation, according to the Police, was undertaken by PW7, the then Circle Inspector of Police, West Police Station, Kollam, who finally laid the charge. The other witnesses examined are PW1 who is an attestor to the scene mahazar, but he denied the same. Similarly, PW2 is also an attestor to Ext.P1 search list. But though she identified and admitted her signature, she deposed before the court that she did not witness the seizure of the contraband article from the possession of the accused. In effect, she had also not supported the prosecution case. PW3 is a goldsmith, who was produced and examined by the prosecution to prove that the contraband article allegedly seized from the possession of the accused was weighed by him, but when examined, he had also turned hostile towards the prosecution. PW4 is the then Woman Police Constable who accompanied PW6 at the time of the alleged seizure. According to PW4, it was she who effected the actual arrest of the accused who is a lady. PW5 is the then Circle Inspector of Excise Narcotic Cell and he was cited and examined to prove that the search was conducted in his presence and to further shows that Section 50 of the NDPS Act is complied with. These are the evidence and materials available on record and referred to by the learned Sessions Judge.