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IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.G. Ajithkumar, J.
Mostafijar Rehman S/o. Nurjamal Miya – Appellant
Versus
State of Kerala Represented By Public Prosecutor – Respondent
Crl. Rev. Petition No. 972 of 2023
Decided on 02-11-2023
NDPS Act - Possession of Ganja - Section 20(b)(ii)(B), Section 29 - Summary: The court discussed the possession of Ganja by the accused and the application of Section 20(b)(ii)(B) and Section 29 of the NDPS Act. It emphasized the need for evidence of conspiracy to charge the accused under Section 20(b)(ii)(B) and concluded that there was insufficient evidence for such a charge.
Fact of the Case:
The petitioner and another individual were arrested for possession of Ganja. The petitioner sought discharge, arguing that the offense constituted a different section of the NDPS Act.
Finding of the Court:
The court found that there was insufficient evidence to charge the petitioner under Section 20(b)(ii)(B) and ordered the charge to be framed under Section 20(b)(ii)(A) of the NDPS Act.
Issues: Interpretation of sections of the NDPS Act, evidence of conspiracy, appropriate charge under the Act.
Ratio Decidendi: The court emphasized the need for evidence of conspiracy to charge under Section 20(b)(ii)(B) and found that such evidence was lacking in this case.
Final Decision: The Revision Petition was allowed in part, and the charge for the offense under Section 20(b)(ii)(A) of the NDPS Act was ordered to be framed against the petitioner and the other accused.
ORDER
The 2nd accused in S.C.No.460 of 2019 pending before the Additional Sessions Court-IV, Pathanamthitta, is the revision petitioner. He is aggrieved by the order dated 04.07.2023 by which the learned Sessions Judge dismissed his petition under Section 227 of the Code of Criminal Procedure, 1973.
2. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor.
3. The petitioner along with one Atoar Ali was arrested on 17.09.2018 at 4.45 p.m. at Thondalipadi in Pathanamthitta Village, while they were walking along Valanchuzhi-Kulasekharapathi Road on finding that they were in possession of Ganja. The allegation is that Atoar Ali was in possession of 692 grams and the petitioner was in possession of 934 grams of Ganja. The detecting officer by following the prescribed procedure, effected seizure and arrested both of them. After necessary investigation, a final report was filed by the Deputy Superintendent of Police, Pathanamthitta alleging offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act).
4. The petitioner filed Crl.M.P.No.1121 of 2023 seeking discharge. His case was that even if the prosecution case is accepted, the offence that would constitute is one punishable under Section 20(b)(ii)(A) of the NDPS Act. The petitioner would urge that the learned Sessions Judge without considering the materials in the proper perspective, reached a conclusion that an offence under Section 20(b)(ii)(B) read with Section 29 of the NDPS Act is constituted for which the petitioner and the 1st accused are liable to be tried. The learned counsel appearing for the petitioner would submit that even the investigating officer does not have a case of conspiracy among the petitioner and the 1st accused in carrying the contraband and therefore the decision of the court below to frame a charge with the aid of Section 29 of the NDPS Act is incorrect and liable to be set aside.
5. The learned Public Prosecutor, on the other hand, would submit that both the accused were sailing together for, they came to the place of occurrence by travelling together and were walking along the road together. From their movements and also from the fact that their destination was common, their common intention to possess contraband is very much evident and in that view of the matter, the impugned order is correct.
6. Upto one kilogram of Ganja is small quantity. If it is taken that the possession of the contraband by the petitioner and the 1st accused was independent, the offence would be one for the possession of a small quantity of Ganja. On the other hand, the quantity is taken cumulatively, the offence would be one for possessing intermediate quantity under Section 20(b)(ii)(B) of the NDPS Act. Indisputably, the quantity of Ganja seized from the petitioner is 692 and the 1st accused 934 grams. If they conspired together and in pursuance of that conspiracy, each of them possessed such a quantity of Ganja, they are liable to be tried for an offence under Section 20(b)(ii)(B) read with Section 29 of the NDPS Act.
7. The allegation in the final report is that 692 grams of Ganja was seized from the bag held by the 1st accused and 934 grams of Ganja from the bag held by the petitioner. There is no allegation in the final report that in pursuance of their pre-concert or conspiracy, they possess such quantity of Ganja.
8. On a perusal of the seizure mahazar, which is a part of Annexure A1 final report, it is seen that while the petitioner and the 1st accused were walking along the road they were intercepted and a search was conducted. Similar is the version of the witnesses cited by the prosecution; the officials as well as private witnesses to the seizure. It cannot be seen from the statement of any of the said witnesses that the petitioner and the 1st accused were persons having prior acquaintance with each other. Only if the petitioner and the 1st accused possessed the contraband
AI
The central legal point established in the judgment is the requirement for evidence of conspiracy to charge under Section 20(b)(ii)(B) of the NDPS Act.
Bail cannot be granted under the NDPS Act if the possession of a commercial quantity and evidence of conspiracy are established against the accused.
The main legal point established in the judgment is the requirement for evidence of criminal conspiracy and abetment for the application of Section 29 of the NDPS act.
Possession of narcotics must be proven beyond reasonable doubt, and procedural safeguards under the NDPS Act are critical for valid convictions.
Point of law: whether there was compliance of the procedure laid down under Section 42 of the NDPS Act or not, could be ascertained at the time of trial.
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