VIJAYAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant in Crl.A No.655/2017 is the 2nd accused in SC 954/2013 of the Court of Session, Kollam and the appellant in Crl.A No.393/2017 is the 3rd accused therein. They are respectively the accused Nos.2 and 3 in Crime No.8/2005 of the Karunagappally Excise Range, involving the offence under Section 21 (c) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act (for short the NDPS Act). The case against the 1st accused was split up and refiled at the initial stage itself. The appellants faced trial before the learned IV Additional Sessions Judge, Kollam, as the Special Judge for the trial of cases under the NDPS Act on the allegation that at about 2.30 p.m on 26.9.2005, the accused Nos.1 & 2 were found possessing and transporting 1.015 kgs of Brown Sugar on the Motorcycle No.KL01/AD-7248 and that the accused Nos.1 and 2 brought the said quantity of Brown Sugar from Goa for supply to the 3rd accused who had provided all facilities for the transportation of Brown Sugar from Goa. Only the accused Nos.1 and 2 were arrested on the spot by the Excise Inspector, but the 3rd accused was later added on the basis of the statements given by the accused Nos.1 and 2.

(2.) The prosecution allegation is that when the Excise Inspector of the Karunagapplly Excise Range inspected the Motorcycle No.KL01/AD-7248 at about 2.30 p.m on 26.9.2005, he saw a bag containing something being carried on the motorcycle. The 2nd accused was the rider of the motorcycle and the 1st accused was the pillion rider. The bag was seen on the seat in between the rider and the pillion rider, and practically it was in the possession of the pillion rider. On seeing the Excise party from a distance, the rider tried to escape, but within no time, the vehicle was obstructed. When asked why the 2nd accused attempted to escape, he stated that he had no driving licence and he thought that the persons in uniform were Police Officers. When the Excise Inspector interrogated the pillion rider and asked about the contents of the bag possessed by him, he kept mum and he did not say anything as he doesn't know Malayalam. The 2nd accused then replied that it contained Brown Sugar. When the Excise Inspector opened and examined the bag found in the possession of the pillion rider, he found a quantity of 1.015 kgs of brown sugar therein, and also a bottle of Indian made Foreign Liquor. The Excise inspector arrested the rider and the Pillion rider on the spot and seized the contraband articles. Enquiry revealed that the motorcycle belonged to the 3rd accused. The rider and the pillion rider also gave a statement indicating that the quantity of brown sugar was meant for supply to the 3rd accused, that the motorcyle was provided by him for travel, and that other arrangements were also made by the 3rd accused. Accordingly, the owner of the motorcyle was arraigned as 3rd accused during investigation on the allegation of abetment.

(3.) The accused Nos.2 and 3 appeared before the learned trial Judge and pleaded not guilty to the charge framed against them. The prosecution examined 16 witnesses and proved Exts.P1 to P37 documents in the trial court. The Mo1 and MO2 properties were also identified during trial. Both the accused denied the incriminating circumstances when examined under Section 313 Cr.P.C and projected a defence of total denial. The 2nd accused raised a defence that he had no knowledge of the contents of the bag carried by the 1 st accused and that he was not a party to the possession or transportation of brown sugar by the 1 st accused. It appears that the case against the 1 st accused is yet to be tried. In defence, the 2nd accused examined a witness as DW1 and also proved Ext.D1.