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2020 Supreme(Ker) 460
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. Haripal, J.
Mushthafa S/o. Muhammed, Naduthodi House - Appellant
Versus
The Sub Inspector of Police Nilambur Police Station & Ors. - Respondents
Crl.A.No.992 of 2013
Decided On : 10-07-2020
For the Appellant : Sri. Sunny Mathew
For the Respondent: By Public Prosecutor Sri. D. Chandrasenan
IMPORTANT POINTS
An offence relating to narcotic drugs or psychotropic substance is more heinous than a culpable homicide because the latter affects only an individual while the former affects and leaves its deleterious impact on the society, besides shattering the economy of the nation as well. If such offences are not dealt with an iron hand, it would grow as an offence against the posterity.
Headnote:
Code of Criminal Procedure,1973- Section 374(2), Section 482 ;; The Narcotic Drugs and Psychotropic Substances Act, 1985- Section 20(b)(ii)(B) - The benefit under Section 427 of the Code can be claimed only before the Court trying the subsequent offences- Whether the inherent powers of the Court under Section 482 of the Code can be invoked to decide whether two sentences should run concurrently or consecutively- The cause of action and the conviction have taken place much later in point of time- Use of gunja and the like narcotic drugs has become rampant -Direction to run concurrently can be given only in appropriate cases by the Court imposing subsequent sentence of imprisonment; the appellate court dealing with subsequent conviction also can exercise the jurisdiction.
Statement of facts:
An appeal preferred under Section 374(2) of the Code of Criminal Procedure-Offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985-Carrying 1.500 kgs of ganja, a narcotic drug; he was intercepted by the Sub Inspector and party in the presence of independent witnesses; the contraband was taken from his possession, which was seized by following the statutory formalities and thus Crime Charged - The appellant has challenged that conviction and sentence, in this appeal. By order dated 12.07.2013, this Court suspended the sentence and directed to release him on bail, on certain terms and conditions.
Finding of the court:
Having regard to the nature and gravity of the offence, the imposition of a sentence of rigorous imprisonment for four years and fine is disproportionate. It is a fact that use of gunja and the like narcotic drugs has become rampant. It has got far reaching impact on the posterity- Confirming the conviction and sentence imposed by the trial court
Result: Appeal is dismissed.
JUDGMENT :
This is an appeal preferred under Section 374(2) of the Code of Criminal Procedure, hereinafter referred to as the Code, challenging the legality and correctness of the judgment of the learned Special Judge (NDPS Act Cases), Vatakara in S.C.No.49 of 2011. That case was taken on file on the final report laid by the Circle Inspector of Police, Nilambur Police Station in Crime No.28/11, alleging offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred to as the Act. The prosecution case in brief is that on 17/01/2011 at about 2:45 p.m. the accused was found at Athikkapp on the western side of Karulayi bridge across the Karimpuzha river on the Karulayi-Palankara road, 39 metres north-west from the house of one Mannureth Mathew, bearing door No.K.P.III/155 carrying 1.500 kgs of ganja, a narcotic drug; he was intercepted by the Sub Inspector and party in the presence of independent witnesses; the contraband was taken from his possession, which was seized by following the statutory formalities and thus Crime No.28/11 of that police station was registered. After investigation, the Circle Inspector, Nilambur laid the charge sheet before the Special Judge who took cognizance of the offence and summoned the accused. The accused was defended by a counsel of his choice. After completing the procedural formalities and hearing the counsel on both sides, when the charge was framed, read over and explained, he pleaded not guilty. He was on bail.
2. On the side of the prosecution, seven witnesses were examined as PWs.1 to 7. Prosecution evidence also consist of documents marked as Exts.P1 to P13 and material objects identified and marked as MOs.1 to 6. On examination under Section 313 of the Code, the accused denied all the incriminating materials highlighted against him. He reiterated that he is innocent. As the court found it not a fit case for acquitting under Section 232 of the Code, the accused was called upon to enter on his evidence in defence. However, no evidence was adduced by him. After hearing counsel on both sides, the learned Judge rendered the impugned judgment on 28.6.2013. The accused was found guilty of the offence alleged against him. After hearing him on punishment, he was sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.75,000/-, in default to undergo rigorous imprisonment for six months, for the offence under Section 20(b)(ii)(B) of the Act. He was also given set off under Section 428 of the Code.
3. The appellant has challenged that conviction and sentence, in this appeal. By order dated 12.07.2013, this Court suspended the sentence and directed to release him on bail, on certain terms and conditions.
4. I heard Sri. Sunny Mathew, the learned counsel for the appellant and Sri.D.Chandrasenan, the learned Public Prosecutor.
5. Even though numerous grounds were urged in support of the appeal, the learned counsel for the appellant has fairly submitted that he is not touching the merits of the finding. He has raised only two contentions before Court. Firstly, he said that the appellant has since been convicted by the same court in S.C.No.21/2016 for another offence under the Act and, therefore, he is entitled to get the sentence imposed by the judgment under challenge run concurrently. Secondly, he argued that the sentence imposed is disproportionate to the offence proved and thus prayed for showing leniency.
6. The learned Public Prosecutor said that the appellant is not entitled to get the benefit of Section 427 of the Code. According to him, the sentence imposed is commensurate with the gravity of the offence proved against him.
7. As mentioned earlier, the crime was registered by PW4 the Sub Inspector of Nilambur police station. According to him, on getting a tip off, he had proceeded to the place of occurrence after entering the information in the station GD and sending the Ext.P4, report under Section 42 of the Act
