Important points:
The specific case of the prosecution is that the first accused was having in his possession 20.5000 kilograms of ganja and that the second accused was having in his possession 18.000 kilograms of ganja. The prosecution failed to prove any conspiracy between the accused to commit an offence under Section 20(b)(ii)(C) of the Act. As per Entry 55 of the Notification dated 19.10.2001 issued by the Central Government, which deals with ganja, small quantity has been mentioned as 1000 grams and commercial quantity has been mentioned as twenty kilograms. In such circumstances, the second accused could only be convicted for having in his possession intermediate quantity of ganja and not for having possession of commercial quantity of the contraband material.

JUDGMENT :

The appellants are the first and the second accused in the case S.C.No.160/2018 on the file of the Court of the Special Judge (NDPS Act Cases), Vatakara.

2. The appellants stand convicted and sentenced for committing an offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act').

3. The prosecution case, in brief, is as follows: On 19.06.2018, at 13.25 hours, K.M.Biju (PW1), Inspector of Police, Nilambur got reliable information that two persons were carrying ganja in the car KL-21G-2673. PW1 reduced the information received by him into writing and sent it to his superior officer and proceeded to the spot with police party. He reached the spot by 13.50 hours and found the car parked at the side of Nilambur-Kulakandam road. He saw the first accused sitting in the driver's seat and the second accused sitting in the rear seat of the car. There was a bag on the side of each of the accused. PW1 served notice on the accused and made them aware of their right to be searched in the presence of a gazetted officer or a Magistrate. The accused wanted the presence of another officer for conducting the search. PW1 obtained the presence of the Tahsildar (PW5), Nilambur and inspected the two bags in the presence of PW5. The bag, which was found held by the first accused with his hand, contained 20.500 kilograms of ganja. The bag, which was found held by the second accused with his hand, contained 18.000 kilograms of ganja. PW1 arrested the two accused and seized the ganja as per Ext.P4 mahazar. On returning to the police station, PW1 registered Ext.P5 first information report in the matter.

4. The investigation of the case was conducted by PW7 Deputy Superintendent of Police. After completing the investigation of the case, he filed final report against the two accused for the offences punishable under Sections 20(b)(ii)(C) and 29 of the Act.

5. Both accused pleaded not guilty to the charge framed against them by the Special Court under Sections 8(c) and 20(b) (ii)(C) read with 29 of the Act. During the trial of the case, the prosecution examined PW1 to PW9 and marked Exts.P1 to P22 documents and MO1 to MO5 material objects. No oral evidence was adduced by the accused but Ext.D1 document was marked on their side.

6. The Special Court found both accused guilty of the offence punishable under Section 20(b)(ii)(C) of the Act and convicted them thereunder and sentenced them to undergo rigorous imprisonment for a period of twelve years each and to pay a fine of Rs.1,00,000/-each and in default of payment of fine, to undergo rigorous imprisonment for a period of six months each. Conviction and sentence entered against the two accused in the case by the Special Court are challenged in this appeal.

7. Heard learned counsel for the appellants and also the learned Public Prosecutor and perused the records.

8. The prosecution examined nine witnesses. PW1 is the Inspector of Police who detected the offence. PW2 is the registered owner of the car in which the accused and the ganja were allegedly found by PW1. PW3 is the Village Officer who prepared Ext.P14 sketch of the scene of occurrence. PW4 is the Assistant Motor Vehicles Inspector who inspected the car and issued Ext.P15 report and Ext.P16 registration particulars of that vehicle. PW5 is the Tahsildar who was summoned by PW1 to witness the search. PW6 is the Sub Inspector who was present in the police party led by PW1. PW7 is the Deputy Superintendent of Police who conducted the investigation of the case. PW8 is the independent witness examined by the prosecution to prove the occurrence. PW9 is the owner of the shop from where weighing balance was obtained by the police party.

9. In order to appreciate the contentions raised by the learned counsel for the appellants, it would be advantageous to give a brief summary of the testimony of PW1. His testimony is as follows: On 19.06.2018, at 13.25 hours, while he was in