P.P. Beeran Vs. State of Kerala
EmailAppeal: Criminal Appeal No. 59 of 2001
(Arising out of S.L.P. (Crl.) No. 3342 of 2000)
(Arising out of S.L.P. (Crl.) No. 3342 of 2000)
Petitioner: P.P. Beeran
Respondent: State of Kerala
Apeal: Criminal Appeal No. 59 of 2001
(Arising out of S.L.P. (Crl.) No. 3342 of 2000)
(Arising out of S.L.P. (Crl.) No. 3342 of 2000)
Judges: K.T. THOMAS, R.P. SETHI & B.N. AGRAWAL, JJ.
Date of Judgment: Nov 01, 2001
Head Note:
CRIMINAL LAW / PRACTICE AND PROCEDURE
Narcotic Drugs and Psychotropic Substances Act, 1985
a) Section 27 – Conviction – Small quantity of opium (23.5 gms) – Defence of personal use – Defence not taken properly at the trial stage. Held that conviction is set aside and matter remitted to trial court for affording opportunity to adopt defence. Not to be treated as precedent. (Paras 6 to 9)
b) Section 50 – Compliance – Offer made to conduct search in pres-ence of a Magistrate or gazetted officer – Denial – Offer and denial depicted by written record. Held that there is no ground to interfere on grounds of non-compliance.
Evidence Act, 1872
Section 3 with NDPS Act, 1985 – Section 27 – Recovery in presence of two witnesses – One not examined and other hostile – Recovery affected by writing, signed by accused. Held that testimony of I.O. stood corroborated by writing as circumstance. No ground to reject testimony of I.O. (Para 3)
JUDGEMENT:
ORDER
1. Leave granted.
2. Appellant stands convicted under Section 17 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the N.D.P.S Act’) and sentenced to undergo rigorous impris-onment for a period of 10 years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine amount he has to undergo a simple imprisonment for a further period of 3 months. He filed an appeal before the High Court. A learned Single Judge of the High Court confirmed the conviction and sentence and dismissed the appeal.
3. The case alleged against him shows that he was found in pos-session of 23.5 grams of opium at the time when he was intercept-ed and searched by PW2, sub-inspector of police. We have noticed that two witnesses were called by PW2 at the time of search out of whom one was examined as PW1 and the other was not examined. But even the one examined (PW1) did not support the prosecution and hence he was treated as hostile. Though an argument was addressed by Mr. R. Venkataramani, learned senior Counsel for the appellant that the evidence of PW2, Sub-Inspector of police remained uncorroborated, and therefore, that should not be made the sole basis for conviction, it is too late in the day for us to reject the testimony of PW2 on that ground alone. Even other-wise, it cannot be said that evidence of PW2 remains uncorro-borated because the fact that opium was recovered from his person and also Exhibit P2 which is an endorsement containing the signa-ture of the appellant could be treated as circumstances corrobo-rating the testimony of PW2.
4. Learned senior Counsel then contended that there was factually no compliance of Section 50 of the NDPS Act inasmuch as the search was not conducted in the presence of a gazetted officer or a Magistrate. That point also seems to be very fragile for the appellant as the concurrent finding shows that PW2 in fact put it to the appellant whether he required the search to be conducted in the presence of a gazetted officer or a Magistrate and the answer was in the negative. This was communicated in the form of a written record as is evidenced by Ext. PW2. Hence, we are not disposed to interfere with conviction of the appellant on the ground of non-compliance of Section 50 of the Act.
5. As a last attempt, Mr. Venkataramani made the following endea-vour :
Section 27 of the NDPS Act says that whoever is in posses-sion of any narcotic drug or psychotropic substance of “a small quantity” which is proved to have been intended for his personal consumption and not for sale or distribution, the offence would run down to a much lesser rigorous one as the court would then be in a position to consider awarding imprisonment as sentence for a term which may extend to one year or with fine or with both.
6. The said defence is adopted now as a last attempt on the basis of the fact that the opium recovered from the appellant was only 23.5 grams. The Central Government by notification, in exercise of the powers conferred by Explanation(1) to Section 27 of the NDPS Act had specified the ‘small quantity’ to be 25 grams in respect of opium. For the purpose of this defence we extract the relevant portion of the said notification hereunder:
Central Government Notification No.G.O.527(E),dated July 16,1996,published in the Gazette of India,Extra.,Part II, Section3(ii) dated 23rd July,1996.
In exercise of the powers conferred by Explanation (I) to Section 27 of the Narcotic Drugs and Psychotropic Substances Act,1985(61 of 1985) and in supersession of the notifications of the Government of India,in the Ministry of Finance,Department of Revenue,Numbers S.O.825(E),dated 14th November,1985 and S.O. 827(E) dated the 14th Nov. 1985 except as regards things done or omitted to be done before such supersession,the Central Government hereby specifies the quantity mentioned in Column (3) of the Table below, in relation to the narcotic drugs or psychotropic substances men-tioned in the corresponding entry in Column (2) of the said Table, as “small quantity” for the purpose of Clause (b) of that Section.
TABLE
Sl. Name of the narcotic Quantity
No. drugs and psychotropic (In grams)
substance
(1) (2) (3)
1. Opium and any prepara- 25
tions containing opium
7. Shri Venkataramani submitted that as a matter of fact the appellant told PW 2 at the very outset itself that the opium in his possession was intended for his personal consumption. Though the same cannot be used as evidence by us Mr. K.M.K. Nair, learned Counsel for the State, after checking up the record, submitted that what the senior Counsel has said is true to facts. We are dismayed in that the defence under Section 27 of the Act has not been adopted by the Counsel who defended the appellant at the trial stage. We have a feeling of anguish that the appellant had suffered this long period of incarceration solely on account of being improperly defended at the trial court and, we may say, without proper thought the defence was put forward. If the conse-quence was not so serious we perhaps would not have persuaded ourselves for making the said observation. But in a case where the Parliament has afforded very substantial benefit to a person who possesses only a small quantity of narcotic drug for his personal consumption we feel, in the interest of justice, that appellant should be given one more opportunity at the trial court to advance a pleading on the strength of Section 27 of the Act.
8. We make it clear that this shall not be treated as a precedent, but will be confined to the facts of this case, as such a course is warranted to avert serious miscarriage of justice and disas-trous consequences to a citizen.
9. In order to facilitate the trial court to afford the appellant one more opportunity as aforesaid, we set aside the conviction and sentence passed on him and remit the case to the trial court for the limited purpose of affording the appellant an opportunity to adopt a defence under Section 27 of the NDPS Act. We order the appellant to be released on bail until the trial is finally over. The trial court shall specify the conditions of such bail.
10. We direct the trial court further to appoint a competent Advocate to defend the appellant in the trial court at the State expense, if he is not having any Counsel of his own.
11. Despatch the records of the trial court.
12. This appeal is disposed of accordingly.
1. Leave granted.
2. Appellant stands convicted under Section 17 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the N.D.P.S Act’) and sentenced to undergo rigorous impris-onment for a period of 10 years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine amount he has to undergo a simple imprisonment for a further period of 3 months. He filed an appeal before the High Court. A learned Single Judge of the High Court confirmed the conviction and sentence and dismissed the appeal.
3. The case alleged against him shows that he was found in pos-session of 23.5 grams of opium at the time when he was intercept-ed and searched by PW2, sub-inspector of police. We have noticed that two witnesses were called by PW2 at the time of search out of whom one was examined as PW1 and the other was not examined. But even the one examined (PW1) did not support the prosecution and hence he was treated as hostile. Though an argument was addressed by Mr. R. Venkataramani, learned senior Counsel for the appellant that the evidence of PW2, Sub-Inspector of police remained uncorroborated, and therefore, that should not be made the sole basis for conviction, it is too late in the day for us to reject the testimony of PW2 on that ground alone. Even other-wise, it cannot be said that evidence of PW2 remains uncorro-borated because the fact that opium was recovered from his person and also Exhibit P2 which is an endorsement containing the signa-ture of the appellant could be treated as circumstances corrobo-rating the testimony of PW2.
4. Learned senior Counsel then contended that there was factually no compliance of Section 50 of the NDPS Act inasmuch as the search was not conducted in the presence of a gazetted officer or a Magistrate. That point also seems to be very fragile for the appellant as the concurrent finding shows that PW2 in fact put it to the appellant whether he required the search to be conducted in the presence of a gazetted officer or a Magistrate and the answer was in the negative. This was communicated in the form of a written record as is evidenced by Ext. PW2. Hence, we are not disposed to interfere with conviction of the appellant on the ground of non-compliance of Section 50 of the Act.
5. As a last attempt, Mr. Venkataramani made the following endea-vour :
Section 27 of the NDPS Act says that whoever is in posses-sion of any narcotic drug or psychotropic substance of “a small quantity” which is proved to have been intended for his personal consumption and not for sale or distribution, the offence would run down to a much lesser rigorous one as the court would then be in a position to consider awarding imprisonment as sentence for a term which may extend to one year or with fine or with both.
6. The said defence is adopted now as a last attempt on the basis of the fact that the opium recovered from the appellant was only 23.5 grams. The Central Government by notification, in exercise of the powers conferred by Explanation(1) to Section 27 of the NDPS Act had specified the ‘small quantity’ to be 25 grams in respect of opium. For the purpose of this defence we extract the relevant portion of the said notification hereunder:
Central Government Notification No.G.O.527(E),dated July 16,1996,published in the Gazette of India,Extra.,Part II, Section3(ii) dated 23rd July,1996.
In exercise of the powers conferred by Explanation (I) to Section 27 of the Narcotic Drugs and Psychotropic Substances Act,1985(61 of 1985) and in supersession of the notifications of the Government of India,in the Ministry of Finance,Department of Revenue,Numbers S.O.825(E),dated 14th November,1985 and S.O. 827(E) dated the 14th Nov. 1985 except as regards things done or omitted to be done before such supersession,the Central Government hereby specifies the quantity mentioned in Column (3) of the Table below, in relation to the narcotic drugs or psychotropic substances men-tioned in the corresponding entry in Column (2) of the said Table, as “small quantity” for the purpose of Clause (b) of that Section.
TABLE
Sl. Name of the narcotic Quantity
No. drugs and psychotropic (In grams)
substance
(1) (2) (3)
1. Opium and any prepara- 25
tions containing opium
7. Shri Venkataramani submitted that as a matter of fact the appellant told PW 2 at the very outset itself that the opium in his possession was intended for his personal consumption. Though the same cannot be used as evidence by us Mr. K.M.K. Nair, learned Counsel for the State, after checking up the record, submitted that what the senior Counsel has said is true to facts. We are dismayed in that the defence under Section 27 of the Act has not been adopted by the Counsel who defended the appellant at the trial stage. We have a feeling of anguish that the appellant had suffered this long period of incarceration solely on account of being improperly defended at the trial court and, we may say, without proper thought the defence was put forward. If the conse-quence was not so serious we perhaps would not have persuaded ourselves for making the said observation. But in a case where the Parliament has afforded very substantial benefit to a person who possesses only a small quantity of narcotic drug for his personal consumption we feel, in the interest of justice, that appellant should be given one more opportunity at the trial court to advance a pleading on the strength of Section 27 of the Act.
8. We make it clear that this shall not be treated as a precedent, but will be confined to the facts of this case, as such a course is warranted to avert serious miscarriage of justice and disas-trous consequences to a citizen.
9. In order to facilitate the trial court to afford the appellant one more opportunity as aforesaid, we set aside the conviction and sentence passed on him and remit the case to the trial court for the limited purpose of affording the appellant an opportunity to adopt a defence under Section 27 of the NDPS Act. We order the appellant to be released on bail until the trial is finally over. The trial court shall specify the conditions of such bail.
10. We direct the trial court further to appoint a competent Advocate to defend the appellant in the trial court at the State expense, if he is not having any Counsel of his own.
11. Despatch the records of the trial court.
12. This appeal is disposed of accordingly.
