IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K. BABU WEDNESDAY, THE 28^TH DAY OF FEBRUARY 2024 / 9TH PHALGUNA, 1945 CRL.A NO. 1096 OF 2023 CRIME NO.30/2019 OF ALAPPUZHA EXCISE RANGE OFFICE, ALAPPUZHA AGAINST THE JUDGMENT DTD. 28.12.2021 IN SC 690/2019 OF THE COURT OF ADDITIONAL SESSIONS JUDGE - I, ALAPPUZHA APPELLANT/ACCUSED:

ALAVIKUTTY, AGED 46 YEARS S/O. MUHAMMED, VETTUPARACKAL VEEDU, VETTUPARA, CHEEKKOD VILLAGE, KONDOTTY TALUK, MALAPPURAM, PIN – 673638.

BY ADVS.

RAMESH .P FATHIMA NARGIS K.A.

BLEIMY T.JOSE RESPONDENT/COMPLAINANT:

STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031 BY P.P. SRI.G SUDHEER, THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON

28.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

“C.R.”

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