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1999 (1) Crimes 722
KERALA HIGH COURT
K.A. Mohamed Shafi. J.
G. Jayakumar - Appellant
versus
Superintendent. Central Excise - Respondents
Crl. Appeal No. 752 of 1995
Decided on 21-5-1998
Counsel for the parties:
For the Petitioner: Mr. P.K. Ashokan. Advocate.
For the Respondent No. 1: Mr. C.C. Thomas. A.C.C. S.C.
For the Respondent No. 2: Mr. P.P.V.K. Mohanan. Advocate.
(ii) Narcotic Drugs and Psychotropic Substances Act. 1985 - Section 42(1) - Recovery of 506 grams of brown sugar from house of accused Conviction challenged on ground that search and seizure carried after sunset was bad in law being in contravention of Section 42(1) of the Act Search was conducted before sun-set though it took long time to complete formalities by 8 P.M. - Search could not be said was in contravention of Section 42(1) of the Act. (Para 14)
(iii) Narcotic Drugs and Psychotropic Substances Act. 1985 - Section 67 - Confession statements made by accused voluntarily can be used for corroboration. (Para 18)
(iv) Narcotic Drugs and Psychotropic Substances Act. 1985 - Sections 21 and 25 - Recovery of brown sugar which was kept on teapoy in the verandah of house of 1st accused and accused 1 to 3 were sitting on verandah - Confessional statements made by accused corroborated prosecution case - Contention that accused were not in conscious possession of contraband was not sustainable - No other evidence against accused No. 4 except confession of other three accused that brown sugar in question was purchased from accused No. 4 - Conviction of accused No. 4 was unsustainable - Conviction and sentence of 20 years imprisonment awarded to accused No. 1 to 3 called for no interference. (Para 21 to 26)
Result: Appeal allowed.
JUDGMENT
K.A. Mohammed Shafi, J. - Four accused persons stood trial before the Sessions Court, Thiruvananthapuram for the offences punishable under Ss. 21 and 25 of the N.D.P.S. Act on the basis of the complaint filed by the Superintendent. Central Excise. Customs Preventive and Intelligence Unit. Divisional Office. Thiruvananthapuram in O.R. 3/N.D.P.S./93.
2. The prosecution case is that on 27-12-1993 at about 5 p.m. accused Nos. 1 to 3 were found in Kunnukattil Veedu. Pamamkode, Pappanamcode in the possession of the 1st accused and they were in possession of 506 gms. of brown sugar which is a narcotic drug having estimated value of Rs. 1.5 lakhs for the purpose of illegal sale in contravention of the provisions of the N.D.P.S. Act and accused Nos. 2 to 4 purchased possessed and transported the brown sugar to the aforesaid house of the 1st accused immediately before the case was detected by PW 1 the Superintendent of Central Excise and Customs.
3. The lower Court framed charge against the 1st accused for the offences punishable under Sections 21 and 25 of the N.D.P.S. Act and against accused Nos. 2 to 4 for the offence punishable under Section 21 of the N.D.P.S. Act. After trial the lower Court found that the 1st accused is guilty of the offences punishable under Sections 21 and 25 of the N.D.P.S. Act and accused Nos. 2 to 4 are guilty of the offence punishable under Section 21 of the N.D.P.S. Act by judgment dated 7-10-1995 and convicted and sentenced the 1st accused the undergo rigorous imprisonment for 20 years and to pay a fine of Rs. 2 lakhs in default of payment of fine to undergo simple-imprisonment for 5 years for the offence punishable under Section 21 of the N.D.P.S. Act and to undergo rigorous imprisonment for 20 years and to pay a fine Rs. 2 lakhs in default of payment of fine to undergo simple imprisonment for 5 years for- the offence punishable under Section 21 of the N.D.P.S. Act and directed the substantive sentences to run concurrently. The lower Court 10und accused 2 to 4 guilty of the offence punishable under Section 21 of the N.D.P.S. Act and convicted and sentenced them to undergo rigorous imprisonment for 20 years each and to pay a fine of Rs. 2 lakhs each in default of payment of fine to undergo simple imprisonment for 5 years each.
4. The 2nd accused preferred Crl. Appeal No. 887/95 the 4th accused preferred Crl. Appeal No. 752/95 the 3rd accused preferred Cd. Appeal No. 59/96 and the 1st accused preferred Crl. Appeal No. 68/96 challenging the finding of guilt conviction and sentence entered by the lower Court.
5. In this case the prosecution has examined PWs. 1 to 9 and marked Exts. P1 to P21 and M.O.1 and M.O.2 PW 1 is the Superintendent of Central. Excise who detected the offence conducted the search seized the contraband articles registered the case, conducted necessary enquiry and investigation. PW 7 is the Superintendent of the Central Excise who laid the complaint before the lower Court. PWs 4 and 9 are excise officials who were the members of the raising party and they have corroborated the evidence of P.W. 1 PW 2 is the Chemical Examiner attached to the Customs Office. Kochi and PW 3 is the Scientific Assistant in the Forensic Science Laboratory Trivandrum who examined the samples of contraband articles and issued certificates Exts. P6 and P8 respectively. PW5 is the Village Officer who issued Ext. P 16 certificate regarding the occupation of the house by the 1st accused. PW 6 is the Assistant Taluk Supply Officer who issued Ext. P17 report regarding the ration card in respect of the house in question. PW 7 is the Superintendent of Central Excise who filed the complaint before the Court and PW 8 is the Superintendent of Central Excise who produced Exts. P 18 to P 21 before the Court.
6. PW 1 has deposed that he has seized 506 gms of brown sugar in polythene covers wrapped in a newspaper found kept on a teapoy in the verandah of the house of the 1 st accused surrounded by accused Nos. 1 to 3 on
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