HIGH COURT OF KERALA
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(2.) THE allegation against the petitioner is that at 9 a. m. on 2nd November 1989 when PWs. 1 and 2 were on patrol duty they intercepted the petitioner and he was found to keep in his possession 8 packets of ganja weighing about 15 grams at P. C. Road junction at Mukkom. PW. 1 seized the contraband article under Ext. P1 mahazar. Ext. P2 first information report was registered. THE case was transferred to P. W. 3 the Excise Inspector. Ext. P3 is the occurrence report. Ext. P4 chemical analysis report was secured by P. W. 3 and it was found that the article seized was genuine ganja (cannabis sativa ).
The accused denied the offence and thereupon the prosecution examined P. Ws. 1 to 3 and proved Exts. P1 to P4. M. O. 1 series ganja packets were also marked. The accused took up a defence of total denial. No defence evidence was adduced. The Courts below concurrently found that the evidence of p. Ws. 1 and 2 can be believed and that there is evidence to show that ganja, an intoxicating drug, was kept in the possession of the petitioner. Accordingly the Courts below proceeded to impose the minimum mandatory sentence prescribed under S. 55 (a) of the Kerala Abkari Act.
The learned Counsel for the revision petitioner-accused assails the verdict of guilty, conviction and sentence. The learned Counsel for the revision petitioner relying on State of Kerala v. Thomas (1995 (2) KLT 873) contends that S. 55 (a) is impliedly repealed in view of the relevant provisions of the NDPS Act which had come into force later and that in these circumstances the learned Magistrate was not competent even to take cognisance of the offence punishable under S. 55 (a) of the Kerala Abkari act in respect of ganja. It is in these circumstances contended that the entire prosecution initiated against the accused is void and deserves to be set aside. Of course a contention is raised that the findings of fact arrived at by the courts below regarding the possession of ganja by the petitioner are not proper and correct.
(3.) I have gone through the allegations and the materials available in support of such allegations. I find no reason to disbelieve the evidence of P. Ws. 1 and 2 that seizure was effected of ganja from the possession of the accused. I do not also find any reason not to accept the conclusion in ext. P4 report that the article seized was genuine ganja.
In the decision reported in State of Kerala v. Thomas (1995 (2) KLT 873) a learned Single Judge of this Court had held that S. 55 (a)relating to a narcotic drug stands impliedly repealed by the NDPS Act. Relying on the language of S. 81 of the NDPS Act the learned Single Judge had held that the provisions of S. 55 (a) in relation to possession of ganja stand impliedly repealed with the enactment of NDPS Act.;
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