The court considered the contradictions in witness testimonies, the accused's statement under Section 313 Cr.P.C., and the legality of the investigation in reaching its decision to partly allow the appeal and modify the accused's sentence.

JUDGMENT :

Aggrieved by the judgment dated 28.12.2021 passed by the Additional Sessions Judge-I, Alappuzha in S.C.No.690/2019, the accused has preferred this appeal.

2. The accused has been convicted of the offence under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.50,000/- by the impugned judgment.

3. The prosecution case is that at about 3.30 p.m. on 2.5.2019, at the starting point of Colgate junction - Kavunkal road, Valavanad, the accused was found in possession of 2.150 kg of Ganja in a car bearing registration No.KL-10/AQ-4176.

4. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 20(b)(ii)(B) and 25 of the NDPS Act. On the appearance of the accused, charge was framed against him under Section 20(b)(ii)(B) of the NDPS Act. He pleaded not guilty to the charge levelled against him, and therefore, he came to be tried by the trial Court for the aforesaid offence.

5. The prosecution examined PWs 1 to 11 and proved Exts.P1 to P20 and MO1.

6. After the closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused, and hence, he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. DWs 1 and 2 were examined on the defence side. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 20(b)(ii)(B) of the NDPS Act. He was sentenced to undergo rigorous imprisonment for a term of five years and to pay a fine of Rs.50,000/-.

7. Heard Ms. Bleimy T Jose, the learned counsel appearing for the appellant/accused and Sri. G. Sudheer, the learned Public Prosecutor appearing for the respondent.

8. The learned counsel for the appellant challenged the judgment of conviction and sentence on the following grounds:-

(a) There were pertinent contradictions in the testimonies of the occurrence witnesses.

(b) The trial Court has not considered the probabilities raised in the examination of the accused under Section 313 Cr.P.C.

(c) The prosecution failed to prove the question of how the vehicle involved in the case came to be in the possession of the accused.

9. On the date of occurrence, the Excise Inspector, Alappuzha Excise Range (PW1) got reliable information that one person was possessing Ganja in an Alto K10 Car bearing registration No. KL-10/AQ-4176, which was parked at Colgate junction, Valavanad. PW1 reduced the information into writing (Ext.P10) and informed his senior officer. He rushed to the place of occurrence and found the car. The accused was sitting in the driver seat. PW1 informed him of his intention to search his body. He also informed the accused of his right to be searched in the presence of a Magistrate or gazetted officer. The accused informed that the presence of a gazetted officer is necessary. PW1 prepared Ext.P2 intimation to which the accused gave Ext.P2(a) reply. PW1 then requested the Circle Inspector of Special Squad (PW10) to reach the place of occurrence to witness the search. Around 3.30 p.m. PW10 reached the place of occurrence. He received Ext.P3 notice.

10. PW1 searched the body of the accused in the presence of PW10. No contraband substances were recovered from his body. Then PW1 searched the vehicle and found a sack beneath the driver seat. He took the sack, which contained 2.150 kg of Ganja. The Ganja was covered in a polythene cover and tied with cello tape. PW1 prepared Ext.P4 search list. The detecting officer arrested the accused, took the sample from the Ganja and seized the contraband substance, including the sample, by preparing Ext.P7 seizure mahazar. He registered Ext.P8 FIR and produced the properties before the jurisdictional Court as per E