Kerala HC Upholds Conviction Over 3.7 Kg Ganja, Cuts Two Men’s 10-Year Sentences To 4 Years Each

In brief

The question

1. Whether the evidence justified finding that accused Nos. 1 and 2 committed an offence under Section 20(b)(ii)(B) of the NDPS Act

The court held

The appeals were allowed in part: the convictions of both accused under Section 20(b)(ii)(B) were confirmed, but each sentence was reduced to four years’ rigorous imprisonment and a fine of ₹50,000, with four months’ further imprisonment in default of payment. Set-off was allowed.

It also directed

Accused No. 2’s release was made subject to expiry of the modified sentence and any custody or bail requirements in another case; accused No. 1’s bail was cancelled and he was directed to surrender to serve the modified sentence.

01Facts

On 4 December 2014, Excise officials intercepted accused No. 1 while he was riding a motorcycle with accused No. 2 as pillion passenger. Two packets of ganja, each weighing 1.85 kg, were found in a bag on the motorcycle; accused No. 2 fled.

pp. 3–5 · ¶ 3–8

The detecting officer mixed the contents of the packets and drew two samples. Both accused were prosecuted under Section 20(b)(ii)(B) of the NDPS Act and convicted by the Special Court, which sentenced each to ten years’ rigorous imprisonment and a fine of ₹1,00,000. They appealed, principally challenging the mixing of the seized ganja before sampling; accused No. 2 also disputed the evidence linking him to the offence.

pp. 3–5, 8–9, 24–28 · ¶ 3–8, 19–22

02Issues

i.1. Whether the evidence justified finding that accused Nos. 1 and 2 committed an offence under Section 20(b)(ii)(B) of the NDPS Act

p. 8 · ¶ 8

ii.2. Whether mixing the ganja from the two packets before taking samples, or the evidence against accused No. 2, required interference with the conviction

pp. 8, 28–29 · ¶ 8, 22–23

iii.3. Whether the sentences imposed required modification

pp. 29–31 · ¶ 24–26

03Law Applied

Section 20(b)(ii)(B) of the NDPS Act prescribes imprisonment that may extend to ten years and a fine that may extend to ₹1,00,000, without prescribing a minimum sentence.

pp. 30–31 · ¶ 25

Relying on Sumit Tomar v. State of Punjab, 2012 KHC 4633 SC, the Court applied the principle that mixing contraband from separate bags before sampling does not, by itself, prejudice the accused where the quantity otherwise supports the applicable offence and the objection to sampling is therefore not material.

pp. 6–8, 28 · ¶ 7, 22

Provisions in the judgment · 5 · Linked ones open on LawLens

Narcotic Drugs and Psychotropic Substances Act, 1985 Section 20 Section 15 Section 57 Section 42 Section 22

04Reasoning

The Court accepted the evidence of the detecting officer, the accompanying excise officer and the independent witness concerning the recovery, identification of the substance as ganja, seizure and sampling; it found that cross-examination had not materially undermined that evidence.

pp. 9–23 · ¶ 9–18

It rejected the sampling objection, reasoning that even if the contents of one 1.85 kg packet were disregarded, the quantity in the other packet was sufficient to constitute intermediate quantity; accordingly, mixing did not warrant setting aside the conviction.

p. 28 · ¶ 22

As to accused No. 2, the Court relied on the evidence connecting him to accused No. 1 and the contraband, including the testimony and mobile-phone evidence, and rejected the challenge to his involvement.

pp. 24–28 · ¶ 19–22

Given the absence of a statutory minimum sentence under Section 20(b)(ii)(B), the Court considered a reduced sentence appropriate.

pp. 29–31 · ¶ 24–26