Kerala HC Upholds Conviction For 5 Kg Ganja, Cuts Sentence From 10 Years To 4 Years

The appellant was convicted by the Special Judge for possessing 5 kg of ganja, an offence under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), and sentenced to ten years’ rigorous imprisonment and a fine of ₹1,00,000.

On appeal, he challenged the trial procedure, including the initial use of chief-examination affidavits for PWs 1 and 2 and the failure to recall the investigating officer after those witnesses were subsequently examined in court.

The Special Judge later examined PWs 1 and 2 in court and allowed cross-examination; the investigating officer was not recalled.

The Court applied Section 20(b)(ii)(B) of the NDPS Act to the alleged possession of ganja and Section 374(2) of the Code of Criminal Procedure, 1973 (CrPC), as the basis for the appeal.

It held that recording prosecution witnesses’ evidence by chief-examination affidavits is not a procedure authorised by the CrPC or the Bharatiya Nagarik Suraksha Sanhita, 2023, although affidavit evidence is permitted in prosecutions under the Negotiable Instruments Act.

A procedural irregularity warrants setting aside a verdict where it prejudices the accused’s right to a fair trial; absent demonstrated prejudice, interference is unnecessary.

The investigating officer is ordinarily examined after material witnesses to facilitate proof of contradictions, but the need for such examination depends on whether contradictions or omissions were elicited and whether prejudice resulted.

The Court found that the Special Judge corrected the improper affidavit procedure by examining PWs 1 and 2 in chief and permitting cross-examination.

Their testimony, supported by the accompanying officer, the Gazetted Officer, the seizure evidence and the chemical analysis, established recovery and possession of 5 kg of ganja; cross-examination elicited no material contradiction.

Although the investigating officer was not recalled, the appellant did not identify any contradiction or omission requiring proof, or explain how the omission caused prejudice.

The Court also rejected the challenge concerning questioning under Section 313 CrPC, finding that the incriminating circumstances from the witnesses’ properly recorded evidence had been put to the appellant.

It therefore upheld the conviction, while treating the quantity involved as intermediate for purposes of modifying the sentence.

Set-off was allowed; the appellant was directed to appear before the Special Court to serve the sentence, failing which that court was directed to execute it.