KAMALASANAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THESE appeals are preferred by the appellants who are accused 1 to 3 in a prosecution under Sec. 20 (b) (i) of the NDPS Act. All the three appellants (accused 1 to 3) were found guilty, convicted and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 5,000/- and in default, to undergo rigorous imprisonment for a further period of six months each. Accused 2 and 3 together had preferred Crl. A. No. 354/96. Thereafter, their counsel ceased to appear and a counsel on State Brief was requested to render legal assistance to the appellants. The 1st accused preferred Crl. A. No. 371/96 through prison authorities. He remained undefended. The same State Brief counsel Smt. C. N. Usha was appointed on State Brief counsel to render assistance for all the accused. She has advanced arguments on behalf of all the three appellants herein.

(2.) THE prosecution alleged that when P. W. 7 an excise Inspector and his party were on routine patrol duty at about 4. 30 p. m. on 10/10/1991, they received an information that some persons were dealing with ganja in a rented house in the locality. P. W. 7 anticipated that personal search of the accused might have to be held. He made frantic efforts to secure the presence of a Gazetted Officer. But the same proved to be futile. Thereafter, he along with the party and two independent witnesses - P. W. 4 and another, went to the premises where he found accused 1 to 3 dealing with a large quantity of ganja. The 3rd accused was inside the house at the door watching whether any one was coming to the premises. The other two accused were allegedly emptying a bag and collecting 4. 550 kgs. of ganja which was available inside the room. P. W. 7, before proceeding to search, had prepared Ext. P3 search memo wherein the gist of the information received by him before he started the search is seen recorded. P. W. 7 was authorized by his superior to conduct the investigation. He conducted the investigation and it is on his complaint that cognizance was taken of the offence allegedly committed by the accused. The 4th accused was allegedly the person who was in possession of the premises, he having allegedly taken the same on lease under Ext. P9 from its owner one Gopakumar.

(3.) THE accused denied the offence alleged against him and thereupon, the prosecution examined P. Ws. 1 to 7 and proved Exts. P1 to P9. PWs. 1 to 3 are the Excise Guards and P. W. 6 is the Preventive Officer who accompanied P. W. 7 and helped him in the conduct of search. P. W. 4 is the independent witness who was allegedly present at the time of search and seizure. P. W. 5 is the Chemical Examiner who examined the contraband article and certified the same to be ganja. Ext. P1 is the seizure mahazar; Ext. P2 is the certificate issued by the Chemical Examiner; Exts. P3 and 4 are the search memo and search list respectively; Ext. P5 is the inventory report; Ext. P6 is the arrest memo; Ext. P7 is the crime and occurrence report and Ext. P8 is the test memo submitted by PW. 7. Ext. P9, as stated earlier, is the rent deed under which the 4th accused had allegedly come into possession of the building from its owner. M. Os. 1 to 7 were also marked. M. Os. 1 and 3 are the samples and M. Os. 2 and 4 are the covers used for wrapping the samples which were sent for examination by the Chemical Examiner. M. Os. 5 and 6 are the remaining portion of the ganja (4. 5 kgs) and the sack in which it was held. M. O. 7 is the brown paper used to cover M. Os. 1 and 2 sample packets.