Order
1. This appeal is directed against the judgment and order passed by the High Court of Andhra Pradesh at Hyderabad in Arutla Shankaraiah v. State of A.P. Criminal Appeal No. 463 of 2002 dated 22-8-2007. By the impugned judgment and order, the High Court has confirmed the order of conviction passed by the trial court in CC No. 52 of 1996 dated 2-4-2002. However, the High Court has modified the sentence imposed by the trial court.
2. The prosecution case is that on 21-9-1994, the Asst. Excise Superintendent, Nagarkurnool (PW 3), acting on reliable information received by him that contraband had been stored in House No. 2-72, collected panch witnesses (PW 1 and PW 2) and proceeded to the said house. PW 3 searched the house with the assistance of the Sub-Inspector, Excise (PW 5). The search revealed five kilograms of ganja which was immediately seized, together with two samples of the same in the presence of PWs 1 and 2. The appellant was then arrested and sent for remand.
3. Subsequently, the investigation was completed and a charge-sheet was submitted before the trial court and taken on file as CC No. 52 of 1996. The appellant appeared before the trial court and was furnished with copies of the relevant documents. The trial court framed charge against the appellant under Section 8(c) read with Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the Act”). The charge was read over and explained to the appellant who then pleaded not guilty. Consequently, the case was committed to trial.
4. The prosecution examined five witnesses and produced five documents, while no witnesses were produced by the defence. The appellant's statement was recorded under Section 313 of the Code of Criminal Procedure (for short “the Code”) wherein he denied the allegations levelled against him.
5. The trial court considered the evidence on record, as also the arguments of the parties and noticed that the evidence on record revealed that the appellant was in exclusive possession of the said house where the ganja was recovered and the mere fact that he did not own the said house did not disprove the fact that he was in exclusive possession of the said house. The appellant had failed to give any alternative explanation for his sole presence in the said house at the time of the search and seizure of the ganja.
6. The trial court further noticed that the mere fact that one of the panch witnesses, PW 2, had turned hostile, would not in and of itself render the testimony of PW 1 unreliable and, therefore, rejected the appellant's contention that he should be given the benefit of doubt since he was not in conscious possession of the ganja. Based on the testimonies of PWs 1, 3 and 5 and other material on record, the trial court concluded that the prosecution has been able to prove its case beyond reasonable doubt and that the appellant had been in possession of ganja without a valid licence or permit. Thus, the trial court convicted the appellant and sentenced him to undergo rigorous imprisonment for three years and a fine of Rs 5000 for the offence under Section 8(c) read with Section 20(b) of the Act.
7. Aggrieved by the judgment and order passed by the trial court the appellant preferred appeal before the High Court inter alia, contending that the search conducted at the said house by PW 3 and the seizure of the ganja were in violation of the mandatory provisions of Section 42 of the Act, and, that the said house where the ganja was found was not owned by the appellant and therefore he could not be held responsible for the presence of ganja at the said house. With regard to sentence, the appellant further contended that he ought to be treated leniently since he hails from a poor family, was aged only 30 years and the quantity of ganja seized was only five kilograms.
8. By the impugned judgment and order dated 22-8-2007, the High Court reappreciated the entire evidence on record and noticed that the search had been conducted at 9:40 a.m. and therefore there was no violation of Section 42 of the Act. The High Court further noticed that the evidence on record was sufficient to establish that the appellant was in possession of the said house from which the ganja was seized. Thus, the High Court concluded that there was sufficient material on record to show that the appellant was in illegal possession of five kilograms of ganja and that the trial court had not committed any error in convicting the appellant. With regard to the question of sentence, the High Court, in light of the facts and circumstances of the case, reduced the sentence imposed to rigorous imprisonment of one year while maintaining the fine imposed by the trial court.
9. Aggrieved by the judgment and order passed Criminal Appeal No. 463 of 2002 by the High Court, the appellant is before us in this appeal.
10. We have heard the learned counsel for the parties to the lis and have carefully perused the evidence on record, including the judgments and orders passed by the courts below.
11. The learned counsel for the appellant would submit that the prosecution has failed to establish that the appellant was in possession of the ganja. The appellant was not the owner of the said house where the ganja was seized and the said house was, in fact, owned by the appellant's father. The mere fact that the appellant was present in the said house at the time of the search would not, in and of itself, establish that the appellant was in possession of the ganja seized from the said house. Therefore, given that possession was an essential element of the offence under Section 8(c) read with Section 20(b) of the Act, the appellant cannot be convicted. Per contra, the respondent State would support the judgment and order passed by the High Court.
12. Having considered the submissions made before us and after going through the entire evidence on record, the appellant's case fails to convince us. The mere fact that the appellant was not in ownership of the said house where the ganja was seized does not in and of itself disprove the prosecution case. The material on record reveals that the prosecution was able to conclusively establish that the appellant was in sole possession of the said house. The factum of lack of ownership is, therefore, irrelevant and does not exculpate the appellant.
13. With regard to the question of sentence, the appellant has contended that, in light of the appellant's poor socio-economic condition and the fact that the proceedings against him have been continuing for more than a decade, the sentence imposed on the appellant should be reduced to the duration of sentence that has already been undergone by him. However, this contention of the learned counsel for the appellant has also failed to convince us. Taking into consideration the seriousness of the offence committed by the appellant and the large quantity of ganja—as much as five kilograms—involved in the present case, we find that the sentence imposed by the High Court is appropriate.
14. In light of the aforesaid, we are of the considered opinion that the judgment and order Criminal Appeal No. 463 of 2002 passed by the High Court does not suffer from any infirmity whatsoever and does not require our interference.
15. Accordingly, the appeal stands dismissed. If the appellant-accused is on bail, we direct the jurisdictional police authorities to take him into custody forthwith to serve out the remaining period of the sentence awarded by the High Court. Ordered accordingly.