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HIGH COURT OF KERALA
P. G. Ajithkumar, J
MOSTAFIJAR REHMAN – Appellant
Versus
STATE OF KERALA – Respondent
Crl.Rev.Pet 972 2023
Narcotics - NDPS Act - Section 20(b)(ii)(A), 20(b)(ii)(B), 29 - The court determined that the cumulative possession of ganja by the accused parties did not constitute a conspiracy, allowing for a lesser charge under Section 20(b)(ii)(A) instead of Section 20(b)(ii)(B) with the aid of Section 29.
Fact of the Case:
The petitioner and another were arrested for possessing Ganja, with allegations of conspiracy due to their joint possession of an amount exceeding the small quantity threshold.
Finding of the Court:
The court found insufficient evidence to establish a conspiracy between the accused, leading to a conclusion that the appropriate charge should be based on individual possession rather than joint conspiracy.
Issues: Whether the prosecution established a charge under Section 20(b)(ii)(B) of the NDPS Act based on alleged conspiracy, or if a lesser charge under Section 20(b)(ii)(A) was appropriate.
Ratio Decidendi: Absence of evidence for conspiracy led to a decision that possession charges should be framed individually under Section 20(b)(ii)(A) rather than jointly with Section 20(b)(ii)(B) and Section 29.
Final Decision: The revision petition is partially allowed, and charges are modified to Section 20(b)(ii)(A) of the NDPS Act.
O R D E R
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 (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 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 (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 preconcert 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 of different qu
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