Biju @ Koodali Biju vs State Of Kerala

These are appeals filed by accused Nos.1 and 2 in S.C.No.409/2016 on the files of the Special Court under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act' for short) (Additional Sessions Judge-III), Kollam, challenging conviction and sentence imposed on them in the said case, as per judgment dated 19.06.2018.

Heard the respective learned counsel for the appellants/accused Nos.1 and 2 and the learned Public Prosecutor in detail. Perused the judgment under challenge and the available records.

Here, the prosecution alleges commission of offence punishable under Section 20(b)(ii)(B) of the NDPS Act by the appellants/accused Nos.1 and 2. In this case, on finding 3.700 kg of ganja in the conscious possession of accused Nos.1 and 2 at 3.10 p.m. on 04.12.2014 by the detecting officer and on seizure of the contraband, crime was registered alleging commission of offence punishable under Section 20(b)(ii)(B) of the NDPS Act by accused Nos. 1 and 2.

When final report was filed before the Special Court, the Special Judge framed charge for the said offence and proceeded with trial. During trial, PW1 to PW11 were examined, Exts.P1 to P25 and MO1 to MO5 were marked on the side of the prosecution. Exts.D1 to D6 were marked on the side of the defence.

On appreciation of the evidence, the learned Special Judge found that the appellants/accused Nos.1 and 2 had committed the offence punishable under Section 20(b)(ii)(B) of the NDPS Act. Accordingly, they were convicted for the said offence and sentenced as under:

The respective learned counsel appearing for the appellants/accused Nos.1 and 2 zealously argued to unsettle the verdict, mainly urging that the procedure followed for collection of samples from the contraband separately detected, weighing 1.850 kg each, is improper. It is submitted that the contraband recovered from two bags weighing 1.850 kg each was mixed together for the purpose of taking the samples. Therefore, the entire recovery is in the midst of doubts which would entitle acquittal of the appellants. Therefore, the learned counsel for the appellants/accused Nos.1 and 2 pressed for interference in the verdict impugned to record acquittal of the accused persons.

The learned Public Prosecutor, on the other hand, supported the verdict impugned and submitted that, if the mixing of the contraband seized from two bags did not cause any prejudice to the accused, the same is of least consequence. It is argued further that even ignoring the quantity seized from one among the bag, the remaining alone would constitute intermediate quantity to attract the offence under Section 20(b)(ii)(B) of the NDPS Act. The learned learned Public Prosecutor placed decision of the Apex Court in Sumit Tomar v. State of Punjab, reported in 2012 KHC 4633 SC, to buttress his contention. Paragraph No.10 of the said decision reads as under:

Adverting to the rival contentions, the questions arise for consideration are;

PW6 examined in this case is the then Circle Inspector of Excise, Kottarakara, and the detecting officer. He supported the prosecution case, including detection of the contraband, in tune with the version of PW1. He deposed that at about 2.18 p.m. on 04.12.2014, he had received an information on his official mobile phone from Sri.Anil Kumar, (PW9), an Excise Inspector in the Special Squad of Excise Commissioner, that there was every chance of transporting ganja by two persons on a bike through Sadanandapuram-Plappally road within one hour. He had recorded that that information, and forwarded the grounds of belief and letter to his immediate official superior, which were marked as Ext.P5 series. PW6 further testified that he and his excise party went to Changoormukku, half kilometers away from Sadanandapuram Motel Junction in the above road and had reached there at 3.10 p.m. He deposed that PW9, Sri.Anil Kumar, and his excise party had already been present there and they had conducted combined vehicle check. According to him, while so, they had seen red colour bike coming towards them, carrying two persons in the motor bike and they had seen a bag containing something over the petrol tank of the bike. He testified that even though he had signalled the rider to stop the bike, the rider stopped 25 meter away from them. Soon, he along with the excise party had reached near the bike. While so, the pillion rider ran away. Though they had chased him, they could not catch him. He further stated that he had no previous acquaintance with the pillion rider, who ran away. When he had asked the rider of the bike, why the pillion rider had run away, the rider had informed that the bag in his possession, which had been placed over the petrol tank, contained ganja and he ran away from there on afraid of the excise party. Thereafter, he had asked the rider to come out from the bike and he had informed him that he was an authorized excise official to detect the offences under NDPS Act and informed him that witness wanted to search his body. He was further informed of his right to be searched personally (body search) in the presence of a Magistrate or a Gazetted Officer. The rider of the bike informed PW6 that he did not require the presence of a Gazetted Officer or Magistrate and he could be searched on his body by PW6 and party. He further deposed that he had first conducted body search of the rider in the presence of other witnesses and had searched the bag kept on the top of the petrol tank of the bike and he had found two packets, each wrapped in brown paper and sealed with brown plastic tape. He stated that he had opened the first packet in the presence of witnesses and had noticed the smell of ganja from the contents in the packet. He had taken a small quantity, crushed and smelled it and satisfied that the content in the packet were ganja. He further stated that the packet contained dried leaves, flowers and flowering top of cannabis plant. He had also convinced the witnesses and the excise officials present that the substance was ganja. He further testified that on opening the second packet, he had also found ganja in the packet. He had also convinced the witnesses and the other officials in the excise party that ganja was in the second packet also.

According to PW6, by using the weighing balance available in the department vehicle, he had weighed the ganja contained in the first packet, which was found to be 1.85 kg. The ganja in the second packet was also weighed and found its weight as 1.85 kg. The paper in which the ganja was packed was weighed and its weight was found to be 215 gram. Thereafter, he had conducted body search of the rider of the motorbike. When the name of the rider was asked, he told his name as Biju @ Koodali Biju, S/o. Danial, residing at Mary Bhavan, Chekkottukonam, Vilangara Muri, Ummannoor Village, Kottarakkara Taluk. A Nokia mobile phone was found in the left pocket of his shirt containing a battery and a Vodafone SIM card. Regarding the search, he had prepared Ext.P1 search list and obtained the signatures of Biju @ Koodali Biju, and independent witness thereon and he had also put his signature on Ext.P1. He convinced Biju about the gravity of the offence committed by him and arrested him after complying with all legal formalities. He had identified the arrested person, Biju, the accused, at the dock. He had prepared Ext.P6 arrest memo, Ext.P7 arrest intimation and Ext.P8 custody memo. When PW6 questioned the arrested person, Biju, regarding the pillion rider, who ran away, he disclosed the name and address of the pillion rider as “Ramachandran @ Unni, Radhika Bhavan, Cherrikkonam Muri, Thrikkovilvattom Village, Kollam Taluk”. On further enquiry regarding the ganja, the first accused stated that the ganja had been brought by Ramachandran, the second accused, and he alone knew the source from where it had been brought. He further stated that both of them were together possessing and transporting the ganja from Nellikkunnam through Plappally towards Sadanandapuram. Accordingly, it was found that they were possessing and transporting the ganja against the provisions of NDPS Act. Thereby the person arrested got arrayed as the 1^st accused and the absconding pillion rider, Ramachandran, as the 2^nd accused and accordingly, this crime was registered.

PW6 testified further that since it was found that the ganja in both the packets were identical, PW6 mixed the ganja in the packets and took sample of 25 grams each in two polythene covers and the covers were hot sealed, packed separately in brown paper, tied with twine, and sealed with his personal seal bearing the impression 'JPKR' and taken into custody. The remaining 3.650 kg ganja was also packed, sealed in the same manner and taken into custody. The brown paper in which the ganja had originally been packed was separately packed in brown paper, tied and sealed as per law, and taken into custody. The plastic bag in which the ganja had been brought was also packed separately, tied and sealed as stated above and taken into custody. He affixed labels with a brief note of the case, along with the signatures of the accused, the witnesses and his signature on the two sample packets, the balance ganja packet and the other packets. The two sample packets were marked as S1 and S2 respectively. The witness identified the S2 sample before the Court as MO1. The packet containing the remaining ganja was marked as ‘T’ and he identified the same before Court, which was already marked as MO2. He identified the packet in which the brown paper was packed marked as MO3. The witness also identified MO4, the packet containing the bag. PW6 took the mobile phone into custody and affixed a label containing the signatures of the witnesses, the accused and himself and identified the mobile phone before Court, marked as MO5. He affixed a similar label to the motorbike and prepared Ext.P9 inventory. Ext.P2 mahazar was prepared at the place of detection in the presence of witnesses and obtained their signatures on it. He also signed on Ext.P2 mahazar. He recorded Ext.P10 confession statement of the 1^st accused, which was signed by both the 1^st accused and himself. Thereafter, he brought the accused, the thondy articles and records before the excise office and registered crime No.2/2014 against both accused persons. Ext.P11 is the crime and occurrence report. He prepared Ext.P12 thondy list, Ext.P13 test memo and P14 forwarding note. He forwarded Ext.P15 report under Section 57 of the NDPS Act to his immediate official superior. Thereafter, he produced the accused, thondy articles before Court.

PW6 testified further that he had obtained Ext.P3 site plan from the Village Officer. He also forwarded requests to the Hi-Tech cell, Thiruvananthapuram for providing ownership details and call records of the mobile phone recovered from the 1^st accused and to the Joint R.T.O, Punalur, for furnishing ownership details of the vehicle. Moreover, he had requested ownership details of the mobile number to which the last call from the recovered mobile phone was caused. Thereafter, he went to the house of the 2^nd accused. During cross-examination by the 1^st accused, PW6 stated that Ext.P5(a) was recorded at 2.18 pm on 04.12.2014, though the time of recording was not noted in Ext.P5. He stated that log book was maintained for the department jeep. He denied the suggestion that Ext.P5 and P5 (a) were fabricated. He stated that he was a Gazetted Officer at the time of the detection of the offence. He denied the suggestion that he failed to inform the accused of his right regarding search of his body in the presence of a Magistrate or a Gazetted Officer. He also denied the suggestion that Ext.P15 did not comply the mandatory provisions of the Act. The witness further denied the suggestion of accused No.1 that MO5 was not recovered from him. Thus during cross-examination of PW6, nothing elicited to shake his candid version regarding detection and recovery of the contraband and other aspects spoken by him.

Apart from the evidence of PW6, PW9, who accompanied PW6, also gave evidence supporting the version of PW6 in all respects, including collection of samples in a tamper proof manner and he also identified MO1.

In this case, as regards the compliance of the statutory requirements, apart from the evidence of PW6, PW11, the Assistant Excise Commissioner, Kollam, testified that he had received report forwarded by PW6 under Section 42(2) of the NDPS Act, as per Ext.P5. He also supported that he had affixed his dated signature in it and accordingly the same got marked as Ext.P24. Regarding compliance of Section 57 of the NDPS Act, PW11 testified that he had received it and Ext.P25 is the said acknowledgment.

Here, apart from the evidence of PW6 and PW9, PW1, a journalist residing at Aryakkal, who had witnessed the occurrence, also fully supported the prosecution. According to him, while he was going to an interior place from Sadanandapuram, he had seen the excise party opening a packet after placing the same on the top of a red colour car. The officer had also taken another packet from a bag kept on the bike, parked near the car. The person who had been riding the motor bike was in the custody of the excise officer. PW1 further testified that the excise officer had searched the person in his custody, the bag and the motor bike. After conducting the search at the place of occurrence, the excise officer had prepared Ext.P1 search list, and he had signed therein as a witness. He identified his signature in Ext.P1. He further stated that the excise officer had prepared Ext.P2 mahazar at the place and he had signed in Ext.P2 at the place of detection of the offence. He also identified his signature in Ext.P2. PW1 deposed that the excise officer had recovered ganja from the possession of the accused. The officer had taken a small quantity from the seized article and crushed and smelled the article and identified the same as ganja. PW6 had also smelled the seized article and satisfied that the same was ganja. He further testified that the excise officer had taken sample from the ganja recovered from the person in his custody. He had identified his signature in the reserve sample marked as 'S2' and the sample was marked as MO1. He also stated that the balance quantity of ganja had been packed and sealed and thereafter, the excise officer had put the mark 'T' in the label affixed in it. PW1 had affixed his signature in the label in that packet, marked as 'T' and he had identified his signature in the packet with mark 'T'. The packet was marked as MO2. PW1 further stated that the brown paper in which the accused had brought ganja had been separately packed, sealed and labelled, and he had signed the label affixed in the packet. He had identified his signature on the label before the Court and the packet was marked as MO3. He also deposed that the plastic cover in which the ganja was kept had been packed in brown paper, sealed and labelled by the excise officer at the place of detection, and he had signed the label affixed to it. He had identified the packet and his signature in the label before Court and the said packet was marked as MO4. PW1 further testified that a mobile phone had been recovered from the person in the custody of excise officer. The officer had labelled the mobile phone and PW1 had signed the label affixed in the mobile phone. He identified his signature in the label affixed in the phone before Court and the mobile phone was marked as MO5. He had received a notice from the excise office and went to the excise office. He had given a statement to the excise officer regarding the facts he had witnessed.

When PW1 was cross-examined, he testified that he had witnessed the excise officials taking samples from the ganja recovered from the person in their custody. He also denied the suggestion that the signatures on the labels in the MOs were not his signature. He admitted his signature in Exts.P1, P2 and MOs. During cross-examination by the counsel for the 2^nd accused, PW1 stated that he could not identify the 2^nd accused. He asserted that he had been present at the place of detection, when the excise officials had recovered the ganja from the person in custody and prepared the records.

In fact, during cross-examination, the evidence of the independent witness not at all shaken.

Ext.P3 scene plan was proved through PW2, the Village Officer.

According to the learned counsel for the second accused, nothing was recovered from the conscious possession of the second accused, since the second accused had run away from the place of occurrence, as per the prosecution case itself. However, the learned Special Judge relied on the evidence of PW5, the mother of the first accused, pertaining to a mobile phone alleged to be used by the second accused, found in possession of the first accused, to find a link between the first accused and the second accused. The learned Special Judge also relied on the statement of the first accused to find that the second accused was the person who had run away on seeing the excise party.

PW5 is the mother of accused No.2, Sri.Ramachandran. She identified accused No.2, Sri.Ramachandran, who was at the dock as her son. She deposed that the excise official had reached her house on enquiring Sri.Ramachandran and she had given information about Ramachandran as required by the excise official. She further stated that her husband died 7 years back and Sri.Ramachandran had no contact with her after the demise of her husband. PW5 deposed that though she had identified the photograph of Ramachandran shown to her by the excise, she did not give the photograph to the official. She admitted her signature in Ext.P4 mahazar prepared by the excise official pertaining to the photograph of the 2^nd accused. She admitted that she had a mobile phone and was taken by Ramachandran from her possession, when her husband died and he did not return the same. During cross-examination, she stated that she had no connection with Ramachandran and she would not permit him to enter her house. She further stated that Kottiyam Police regularly visited her house on enquiring her son, Ramachandran, in connection with a case. PW5 also deposed that when the excise official prepared Ext.P4 at her house, she had informed excise official that Ramachandran had not been coming to her house after the death of her husband, who was his father. She further deposed that her husband had committed suicide. She denied the suggestion that the excise official had taken the mobile phone from her house.

In addition to the above evidence, PW7 tendered Ext.P16 to prove the ownership of the mobile phone. The RC particulars of the vehicle used for commission of the crime, viz.,vehicle No.KL25 K 6221 was furnished by PW8, the Jt.RTO, Punalur, and the same got marked as Ext.P18. Going through the evidence tendered, it could be gathered that Exts.P16 and P17 have been proved through PW7. Ext.P16 shows that the phone number 7034156778 is registered in the name of Ramachandran R, 926, Radika Bhavan, 16, Thrikkovilvattom, Kollam. Ext.P16 reveals that regular calls were made to and received from mobile phone No.7558952148, which is registered in the name of Vasantha, Chirayil Veedu, Thrikkovilvattom, Kollam. She is the mother of the second accused. Exts.P16 and P17 fully corroborated the confession statement of accused No.1 as per Ext.P10 and these evidence fully corroborated the oral evidence of PW9, PW6, PW10 and PW5.

The contentions raised by the learned counsel for the second accused that the second accused did not commit the offence cannot be countenanced in view of the above evidence. As regards the contention raised by the learned counsel for the appellants/accused Nos.1 and 2 that since the contraband in two packets were mixed together for the purpose of taking samples and the same is a reason to throw out the prosecution case as such, it is settled law that taking samples after mixing the contraband, in any way, would not prejudice the accused, the same is of no consequence. In Sumit Tomar’s case (supra) also, the Apex Court while addressing the consequences of mixing of contraband found in two bags, it was categorically held that “the contention that the police should have taken two samples each from the two bags without mixing is liable to be rejected”. Here is a case that the contraband seized in two packets, weighed 1.85 kg each, and therefore, even ignoring one among the packets weighing 1.85 kg, the other item alone would suffice the quantity to hold the contraband seized as intermediate quantity coming under Section 22 (b) of the NDPS Act.

Thus, on re-appreciation of evidence, it is held that the learned Special Judge has rightly found that the accused persons had committed the offence punishable under Section 20(b)(ii)(B) of NDPS Act and therefore, the said conviction does not require interference.

Coming to the sentence, as per the report submitted by the Superintendent of Jail, Central Prison and Correctional Home, Poojappura, as on 09.10.2026, the second accused had undergone substantive sentence of imprisonment for three years nine months and elevan days in this case viz., S.C.No.409/2016, as on 08.10.2026. It is also reported that in another case, viz., SC No.15/2016, involving offence under Section 20(b)(ii)(B) of the NDPS Act, on the files of the Special Court for NDPS Cases, Thodupuzha, he had completed six years of sentence on 08.06.2023 and the present sentence had began on 09.06.2023. The report would also show that the second accused/second appellant herein was convicted in SC No.1134/2018 on the files of the Additional Sessions Court-II, Kollam, for five years finding commission of offence under Section 20(b)(ii)(B) of the NDPS Act and the sentence in the said case yet to begin. Whereas the first accused had undergone imprisonment only for three months and 8 days, since he was released on bail, as per order of this Court in Crl.M.A.No.3646/2018 dated 23.07.2018.

Here, in the present case, the second accused, Sri.Ramachandran, had undergone sentence of imprisonment for a period of three years, nine months and eleven days as on 08.10.2026, after completing his six years imprisonment in S.C.No.15/2016. It is relevant to note that he was convicted and sentenced to undergo imprisonment in S.C.No.1134/2018 for a period of five years and the sentence is yet to commence. The offence found to be committed in the instant case is one punishable under Section 20(b)(ii)(B) of the NDPS Act and the punishment provided under Section 20(b)(ii)(B) of the NDPS Act is rigorous imprisonment for a term which may extend to ten years and with fine which may extend to Rs.1,00,000/-. Thus, no minimum sentence is provided. Having noticed the above fact, I am inclined to modify the sentence.

In the result, these appeals stand allowed in part. The conviction imposed by the learned Special Judge on the appellants/accused Nos.1 and 2 finding commission of offence under Section 20(b)(ii)(B) of the NDPS Act is confirmed. The sentence is interfered and modified as under:

The appellants/accused Nos. 1 and 2 are sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of ₹50 ,000/-(Rupees fifty thousand only) each, for the offence punishable under Section 20(b)(ii)(B) of the NDPS Act. In default of payment of fine, the appellants/accused Nos.1 and 2 shall undergo further imprisonment for a period of four months. Set off, if any, is allowed.

Registry is directed to forward a copy of this judgment to the Jail Superintendent concerned, insofar as the second accused is concerned, for information. The release of the 2^nd accused shall be on expiry of the modified sentence imposed by this Court and further subject to grant of bail, if any, in S.C.No.1134/2018 on the files of the Additional Sessions Court-II, Kollam, where five years sentence remains to be undergone by the second accused, and also on satisfaction of the Jail Superintendent that his further detention in custody in another case/cases if not required.

Insofar as the first accused is concerned, since he had been granted bail by this Court by suspending sentence, the said order and the bail bond stand cancelled. The first accused is directed to surrender before the Special Court Kollam to undergo the modified sentence forthwith, failing which, the Special Judge is directed to execute the modified sentence, without fail, in accordance with law.

Registry is further directed to forward a copy of this judgment to the Special Court, forthwith for information and compliance.