KHIRAT MISHAL AND ORS. Vs. STATE OF KERALA

JUDGEMENT

(1.) Both the accused who stands convicted in S.C.No.166 of 2012 of the Additional Sessions Judge (Adhoc-I), Ernakulam for offence punishable under Section 20(b)ii(B) of the NDPS Act are the appellants herein.

(2.) The allegation of the prosecution is that on 14.02.2012, PW3 the Circle Inspector of Excise, while on a regular patrol duty, got a secret information that two persons were dealing with ganja near a Mosque. He immediately recorded it and thereafter, proceeded to the spot. Two persons belonging to Orissa were found there and on seeing the excise party, they reportedly got perplexed. They were intercepted and the intention of the Detecting Officer to have a body search was disclosed to them. One among them was carrying a shoulder bag. On being informed that they have a right to be searched in the presence of a Gazetted Officer or a Magistrate, they both declined and informed that they would be satisfied if the search is conducted by the Detecting Officer himself. However, the presence of a Gazetted Officer, Circle Inspector of Kunnathunadu excise range, was procured and the body search was conducted. Ganja having a weight of 5kgs was recovered from the bag carried by one of the persons. After completing the formalities of search, sample was separated from the contraband. The contraband articles and sample were sealed, labelled and after preparation of the contemporaneous documents, both the accused were arrested. Thereafter, the crime and occurrence report was submitted. Further investigation was taken over by PW6, the Circle Inspector of Excise Range, Kunnathunadu. After completion of the investigation, both the accused faced trial before the court below.

(3.) Based on the evidence of PWs.1 to 6, documentary evidence of Exts.P1 to P12 and the materials objects identified as MOS.1 to 6, the court below concluded that the accused have committed the offence alleged against them and convicted them under Section 20(b)ii(B) of the NDPS Act. Both were sentenced to undergo simple imprisonment for five years and to pay a fine of Rs.50,000/- each in default of which, they were to undergo rigorous imprisonment for two years for the above offence.