JOSEPH MICHEAL RAJAMONY FERNANDO Vs. STATE OF KERALA

JUDGEMENT

(1.) Appellant is the 1st accused in S.C. No. 151/1998 on the file of the 1st Additional Sessions Court, Trivandrum. The prosecution allegations against the appellant are as follows:

(2.) On the above allegations, a charge was framed against the appellant and the 2nd accused under Sections 21, 23, 29 and Section 135 of the Customs Act, 1962. As the 3rd accused was reported absconding, the appellant and the 2nd accused faced trial. To prove the case against the appellant and the 2nd accused, the prosecution examined PWs 1 to 8 and relied on Exts. P1 to P21. MOs 1 to 5 were also produced. On the closing of the prosecution evidence the appellant and the other accused were questioned under Section 313 of the Code of Criminal Procedure. The appellant denied the allegation levelled against him and had stated that on 26-3-1998, the 3rd accused came to his room and told him that he had a bag with him as more than the excess quantity permissible to carry in the plain and he had asked that whether the appellant could carry the bad in the plain. The appellant further had stated that he had stated to the 3rd accused that he was having enough luggage with him. The 3rd accused asked him whether he could take the bag up to the Airport and to handover the same to another. Further the appellant had stated that the 3rd accused came to his room on 27-3-1998 in the early morning and entrusted a bag to him and said that the bag would be collected at the Airport by one Balamurukan. The appellant agreed to carry the bag up to the Airport and when the appellant and A2 were waiting at the Airport and when the appellant and A2 were waiting at the Airport for the said Balamurugan. Customs Officers came there and asked about the bag and the contents therein. He said that his bag contained only cloths and the 3rd accused had given a bag to him to handover to Balamurugan. Then the Customs Officers asked him whether they could check the said bag and the appellant agreed for that. However, the Customs Officers questioned him about the bag entrusted by the 3rd accused. When the Customs Officers insisted for checking of the bag entrusted by the 3rd accused, the appellant said that, that shall be done only on coming Balamurugan or the 3rd accused. But the Customs Officers threatened him and had taken the bag and thereafter the Customs Officers had got his % signatures and he and the 2nd accused were produced before the court and they were sent to jail. However, on relying on the evidence adduced by the prosecution, the trial court found that the 2nd accused is not guilty of any of the offences charged. But the trial court found the appellant guilty under Sections 21 and 30 of the NDPS Act, 1985, and he was convicted thereunder and sentenced to undergo R.I. for ten years and a fine of Rs. One lakh with default sentence of fine a further period of R.I. for one more year and he was further sentenced to undergo R.I. for five years and a fine of Rs. 50,000/- with default sentence of R.I. for a period of six months under Section 30 of the NDPS Act. However, the trial court directed that the substantive sentences shall run concurrently. The benefit of Section 428 was also allowed to the appellant. The above conviction and sentences are challenged in the appeal.

(3.) Since the appeal is filed through the jail authorities and the appellant is not having a counsel of his own choice, a State brief member has been appointed to argue the case for the appellant. This Court heard the counsel appearing for the appellant as well as the learned Public Prosecutor. The counsel appearing for the appellant raised three contentions before this Court. Firstly, the learned Counsel submitted that the trial court went wrong in placing reliance on the evidence adduced by the prosecution to find the appellant guilty under Sections 21 and 30 and as there was no independent and reliable evidence to prove the case against the appellant. Secondly, the learned Counsel submitted that the trial court committed serious error in finding the appellant guilty of the offences only on the basis of Ext. P21 confession statement as the confession statement has not been recorded as per the provisions of the Criminal Procedure Code and the provisions of the NDPS Act. Thirdly, the learned Counsel submitted that the sentence awarded against the appellant is excessive.