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2019 Supreme(Ker) 1043
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P. UBAID, J.
Cini P. Antony — Appellant
Versus
State Of Kerala — Respondent
Criminal Appeal No. 806 of 2016
Decided on : 29-05-2019
Advocate Appeared:
S.V. Rajan, Adv., Laisa B Jose, Adv., Cibi K Cherian, Adv., C.P. Jagadesh, Adv., R. Santhosh (Varkala), Adv., R. Sudhish, Adv., M.V.S. Namboothiry, Adv.
Important points:
In the absence of any evidence to prove attempted export, the accused cannot be found guilty under Section 23(c) of the NDPS Act. 18- -Previous involvement in like offences, and the NCB has no case that she is a previous convict- Her age was 39 years at the time of detection. She must be now aged about 43 years-The minimum sentence in this case would be the adequate sentence, and accordingly, the sentence can be modified and reduced.
Headnote:
The Narcotic Drugs and Psychotropic Substances Act- Sections 21(c) and 23(c)- The statement given by an accused under Section 67 of the NDPS Act to any officer other than a police officer is admissible in evidence, and it will bind the accused- If the statement contains any confession-The said confession also can be well proved under the law, and the confession will also bind the accused
Statement of facts:
The appellant herein challenges the conviction and sentence against her under Sections 21(c) and 23(c) of the Narcotic Drugs and Psychotropic Substances Act in S.C. No.935/2015 of the Special Court for the trial of NDPS Act cases (Additional Sessions Court-II), Thiruvananthapuram. She is the sole accused, who faced trial in the said case
Finding of the court:
The appellant is found not guilty of the offence under Section 23(c) read with Section 28 of the NDPS Act, and she is acquitted of the said offence in appeal under Section 386(b)(i) Cr.P.C-The conviction and sentence against her under Section 23(c) read with Section 28 of the NDPS Act in S.C.No.935/2015 of the court below will stand set aside. But, the conviction under Section 21(c) of the NDPS Act in S.C.No.935/2015 is confirmed
Result: Appeal is allowed
JUDGMENT :
P.Ubaid, J.
The appellant herein challenges the conviction and sentence against her under Sections 21(c) and 23(c) of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) in S.C. No.935/2015 of the Special Court for the trial of NDPS Act cases (Additional Sessions Court-II), Thiruvananthapuram. She is the sole accused, who faced trial in the said case. Though the final report alleges involvement of two other persons, they could not be apprehended, and so, final report was filed only against the appellant. She faced trial on the allegation that at about 3 a.m. on 6.2.2015 at the Thiruvananthapuram International Airport, she was found possessing 1060 gms of heroin, carried in a bag, intended for export to Kuwait. The accused was arrested on the spot, and the contraband article was seized as per a mahazar at the CIP lounge within the Airport. The offence was detected by an Intelligence Officer of the Narcotic Control Bureau (NCB) on the basis of secret reliable information received by him at about 3 p.m. on 5.2.2015. He recorded the said information, and sent a report to his superior officer under Section 42 of the NDPS Act. After sending such report, he reached the Airport with the other officials and waited for the accused. At about 3 a.m. on 6.2.2015, the Intelligence Officer and the others saw the accused carrying a bag and talking to the CISF Security personnel at the entrance of the Airport departure terminal. Finding that the lady, who was seen talking to the CISF personnel had the identification features mentioned in the report received under Section 42 of the NDPS Act, the Intelligence Officer questioned the accused, and asked whether she had any narcotic drug or psychotropic substance in her possession. Without any resistance or compulsion, she answered in the affirmative and handed over the bag to the Intelligence Officer. She also admitted that the said bag contained heroin. For further procedure and detection, the lady along with the bag was taken to the CIP lounge at the Airport, where, the bag was opened by the Intelligence Officer in the presence of witnesses, and he found two packets of heroin; each having a weight of 530 gms. After the procedural formalities prescribed under the law, the contraband article was seized as per a mahazar. The accused and the witnesses were interrogated after giving notice under Section 67 of the NDPS Act, and the accused was arrested at the CIP lounge by the Intelligence Officer. Investigation was conducted by another Intelligence Officer of the NCB. Though the prosecution would allege criminal conspiracy and also involvement of two other persons, including a citizen of Kuwait, the NCB filed complaint only against the lady, who was found possessing heroin. The prosecution would allege that the accused brought heroin at the Airport with the object of it being exported to Kuwait.
2. The accused appeared before the learned trial Judge and pleaded not guilty to the charge framed against her. The prosecution examined six witnesses and proved Exts.P1 to P35 documents. The MO1 to MO13 properties were also identified during trial. When examined under Section 313 Cr.P.C., the accused denied the incriminating circumstances, and projected a defence that a false case was foisted against her, when the NCB officials could not detect or arrest the persons, who are actually involved in the attempted export of heroin. In defence, she examined herself as DW1 with the permission of the court, and Exts.D1 to D6 were also marked on her side. On an appreciation of the evidence, the trial court found the accused guilty under Sections 21(c) read with Section 8 of the NDPS Act for the possession of commercial quantity of heroin, and also under Section 23(c) read with Section 28 of the NDPS Act for attempted export of commercial quantity of heroin. On conviction, she was sentenced to undergo rigorous imprisonment for 15 years each and to pay a fine of Rs.1,50,000/- each under the two Section
