IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN FRIDAY, THE10H DAY OF JANUARY201420TH POUSHA, 1935 CRL.A.No. 1762 of 2003 ( ) --------------------------- AGAINST THE JUDGMENT
IN SC6362001 of Ist ADDL. SESSIONS JUDGE, KOLLAM, DATED1810-2003 APPELLANT(S)/ACCUSED : ---------------------- SANTHA, D/O.SARASAMMA, HOUSE NO.M.C.250, ATTUKALPURAYIDOM, NEAR KALLUPALAM, BEACH NORTH WARD, KOLLAM WEST VILLAGE. BY ADVS.SRI.B.RAMAN PILLAI SRI.GEORGE PHILIP SRI.R.ANIL SRI.RAJU RADHAKRISHNAN SRI.ANIL K.MOHAMMED SRI.DELVIN JACOB MATHEWS RESPONDENT(S)/COMPLAINANT: ---------------------------- STATE, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR ADV.SRI.N.SURESH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON1001-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ami/ V.K.MOHANAN, J.
------------------------------- Crl.A.No.1762 of 2003 ------------------------------- Dated this the 10th day of January, 2014.
JUDGMENT
The appellant is a lady, who faced the prosecution for the offence punishable under section 20(b)(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to for short as "the NDPS Act" only) in S.C.No.636/01 of the court of 1st Additional Sessions Judge, Kollam, and her grievance is that by the judgment dated 18.10.2003 in the above Sessions case, she is convicted and sentenced for the said offence. Therefore, she preferred the above appeal challenging the above judgment and the conviction and sentence.
2. The prosecution case is that, on 17.3.2000 at about 2 p.m., the accused was found in possession of 9 gms. 50 mg. of ganja in 7 small packets for sale in the residential building of the accused bearing No.M.C/250 in beach north Crl.A.No.1762 of 2003 2 ward in Kollam West village and thereby the accused has committed the offence punishable under section 20(b)(1) of the NDPS Act. With the above allegation, Crime No.16/00 was registered in the Pallithottom Police Station and when the investigation was completed, a report was filed, on the basis of which, S.C.No.636/01 was instituted and when the accused appeared, a formal charge was framed against her for the offence punishable under section 20(b)(1) of the NDPS Act and the accused denied the charge and pleaded not guilty when the said charge read over and explained to her. As the accused denied the charge, the trial was proceeded further, during which, Pws.1 to 7 are examined and Exts.P1 to P5 are marked and M.Os.1 to 4 series are also identified from the side of the prosecution. The trial court finally found that the conscious possession of the contraband material by the accused has been established in the case and the overtact of the accused would come within the ambit of offence punishable under section 20(b)(1) r/w 20(b)(ii)(A) of the NDPS Act, 9/2001. Accordingly, she is Crl.A.No.1762 of 2003 3 convicted thereunder. On such conviction, she is sentenced to undergo rigorous imprisonment for 3 months and to pay a fine of `1,000/- and in default to undergo simple imprisonment for 2 weeks. Set off is allowed under section 428 of Cr.P.C. It is the above finding and order of conviction and sentence that are challenged in this appeal.
3. I have heard Adv.Sri.B.Raman Pillai, learned senior counsel for the appellant and Adv.Sri.N.Suresh, the learned Public Prosecutor for the State.
4. As per the prosecution allegation, the seizure in the present case was effected by PW6, who conducted search on the person of the accused in pursuant to a reliable information received by him. According to PW6, on 17.3.2000, he was the Sub Inspector of Pallithottom Police Station and on receiving the information, after having informed the same to his immediate superior officer, namely, the Circle Inspector of Police, himself accompanied by PW2 and PW4, reached in the house of the accused and he conducted search on the body of the accused in the Crl.A.No.1762 of 2003 4 presence of a gazetted officer and thus from the waist of the accused, 7 small packets of ganja kept in a plastic cover were recovered and from the house of the accused, the currency notes worth `200/- kept in a tin were also recovered. According to PW6, after completing the proceedings, he reached in the Police Station and thereafter prepared FIR in Crime No.16/00 of Pallithottom Police Station and produced the accused as well as the contraband article and other material objects before the court. The further investigation, according to the Police, was undertaken by PW7, the then Circle Inspector of Police, West Police Station, Kollam, who finally laid the charge. The other witnesses examined are PW1 who is an attestor to the scene mahazar, but he denied the same. Similarly, PW2 is also an attestor to Ext.P1 search list. But though she identified and admitted her signature, she deposed before the court that she did not witness the seizure of the contraband article from the possession of the accused. In effect, she had also not supported the prosecution case. Crl.A.No.1762 of 2003 5 PW3 is a goldsmith, who was produced and examined by the prosecution to prove that the contraband article allegedly seized from the possession of the accused was weighed by him, but when examined, he had also turned hostile towards the prosecution. PW4 is the then Woman Police Constable who accompanied PW6 at the time of the alleged seizure. According to PW4, it was she who effected the actual arrest of the accused who is a lady. PW5 is the then Circle Inspector of Excise Narcotic Cell and he was cited and examined to prove that the search was conducted in his presence and to further shows that Section 50 of the NDPS Act is complied with. These are the evidence and materials available on record and referred to by the learned Sessions Judge.
5. The learned counsel for the appellant vehemently submitted that the prosecution has miserably failed to prove the compliance of the mandatory provisions of Section 50 of the NDPS Act as well as Section 42 of the NDPS Act. In order to substantiate the above contention, it Crl.A.No.1762 of 2003 6 is pointed out that in the deposition of PW6, who actually effected the seizure and conducted search of the accused, he has not mentioned anything about the compliance of Section 50 of the NDPS Act. It is also pointed out by the learned counsel that though Ext.P4 report, in terms of Section 42 of the NDPS Act, was claimed to have prepared, the same is not seen received by PW7 who is the immediate superior officer of PW6 and the said report was filed before the court only on 28.2.2001. It is also contended by the learned counsel that though the alleged seizure was effected on 17.3.2000, the material object and the contraband article were produced before the court only after 3 days, ie., on 22.3.2000 and the contraband article sent for chemical analysis only on 21.7.2000, ie., after much delay. So, on the basis of the above defect in the prosecution case, the learned counsel submitted that the trial court is not justified in its finding and convicting the appellant, who is a lady, for such a serious offence.
6. Per contra, the learned Public Prosecutor submitted Crl.A.No.1762 of 2003 7 that the search and seizure of the contraband article from the physical possession of the accused are proved through the evidence of the official witnesses and their evidence can be admitted and acted upon, since the same is free of doubt or infirmities or contradictions. According to the learned Public Prosecutor, in Ext.P2 seizure mahazar, PW6 has clearly recorded the right under section 50 of the NDPS Act conveyed to the accused and therefore the contention of the learned counsel about the non compliance of Section 50 is not sustainable. So, according to the learned Public Prosecutor, the trial court is fully justified in its finding and convicting the appellant and no interference is warranted.
7. I have carefully considered the rival contentions advanced by the learned counsel for the appellant and the learned Public Prosecutor and perused the evidence and materials on record.
8. In the light of the contentions advanced by the learned counsel for the appellant and the learned Public Prosecutor, and the evidence and materials on record, the Crl.A.No.1762 of 2003 8 question that arose for consideration is whether the trial court is justified in its finding and convicting the appellant and whether the prosecution has complied with the mandatory provisions of Sections 42(1) and 50 of the NDPS Act. As the question related to the compliance of Section 42(1) and 50, is very material and the failure of such compliance will enable the accused for an acquittal, I am of the view that, the other contentions raised by the learned counsel need not be considered and the same can be left open. Therefore, the first question to be considered is whether the prosecution has complied with the mandatory provisions contained in Sections 42(1) of the NDPS Act. In the present case, according to PW6, he got reliable information about the sale of ganja in the house of accused and according to him, he prepared a report under section 42(1) and sent the same to his superior officer and thereafter proceeded to the house of accused to conduct the search. On a perusal of Ext.P4 report, claimed to have prepared by PW6 under section 42(1) of the NDPS Act, it Crl.A.No.1762 of 2003 9 can be seen that though the signature of PW7 is seen dated as 17.3.2000 in Ext.P4, the same seen reached in the court only on 28.2.2001, ie., after one year. When PW7-the immediate superior officer of PW6, is examined, he has no claim that he received Ext.P4 and nothing mentioned about the same during his chief examination. However, during his cross examination, PW7 has deposed that Ext.P4 reached in the court only on 28.2.2001. In the absence of any positive evidence from PW7 and particularly when Ext.P4 produced in the court belatedly on 28.2.2001, it cannot be said that PW6 has complied with the mandatory provisions contained in Section 42(1) of the NDPS Act and the said defect on the side of PW6 will definitely go against the prosecution, particularly in view of the decision reported in Dilip and another Vs. State of M.P. [(2007)1 Supreme Court Cases 450].
9. Another contention raised by the learned counsel for the appellant is about the failure of the prosecution in complying with Section 50 of the NDPS Act. It is true that, Crl.A.No.1762 of 2003 10 in Ext.P2 seizure mahazar, PW6 has recorded about the compliance of Section 50 of the NDPS Act in the following way : "...... ....... " But it is pertinent to note that in the deposition of PW6, he has not deposed anything about the due compliance of section 50 of the NDPS Act. In the chief examination, PW6 has deposed that, "....... . . . PW5- . PW5 ...... " The above vague deposition of PW6 does not disclose that he had conveyed the right of accused as contemplated under section 50 of the NDPS Act to the Crl.A.No.1762 of 2003 11 accused in clear terms understandable to the accused. I have gone through the evidence of PW1. In the evidence of Pws.1 to 3 and even in the evidence of PW4-the Woman Police Constable also, no reference about the right conveyed by PW6 to the accused. The above extracted portion of Ext.P2, according to me, is not sufficient to show that PW6 has conveyed the right of the accused under section 50 of the NDPS Act. The accused at the time of the alleged seizure, was at the age of about 49 who is an illiterate woman. According to me, the words used and incorporated in Ext.P2, are not sufficient to make aware the accused, who is an illiterate lady, that the statute has given a right to her so as to claim the presence of a Magistrate or Gazetted Officer at the time of search of her person. In a recent decision reported in Ashok Kumar Sharma Vs. State of Rajasthan (2013(1) Supreme 128), it has held particularly in paragraph 7 that, "This Court also held that it is mandatory on the part of the authorized officer to make the accused aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate. If so required by Crl.A.No.1762 of 2003 12 him and this mandatory provision requires strict compliance. The suspect may or may not choose to exercise the right provided to him under the said provision, but so far as the officer concerned, a n obligation is cast on him under Section 50 of the NDPS Act to apprise the person of his right to be searched before a Gazetted Officer or a Magistrate. The question, as to whether this procedure has been complied with or not, in this case the deposition of PW1 assumes importance, which reads as follows : "He was apprised while telling the reason of being searched that he could be searched before any Magistrate or any Gazetted Officer if he wished. He gave his consent in written and said that I have faith on you, you search me. Fard regarding apprising and consent is Ext.P3 on which I put my signature from A to B and the accused put his signature from C to D. E to F is the endorsement of the consent of the accused and G to H is signature, which has been written by the accused." The above statement of PW1 would clearly indicate that he had only informed the accused that he could be searched before any Magistrate or a Gazetted Officer if he so wished. The fact that the accused person has aright under Section 50 of the NDPS Act to be searched before a Gazetted Officer or a Magistrate was not made known to him." So, from the above decision, it is crystal clear that it is the bounden duty of the Officer, who exercise the powers under Crl.A.No.1762 of 2003 13 the provisions of the NDPS Act, particularly when conducting search on the person of the accused, to convey the right under section 50 of the NDPS Act, in an unequivocal language and easily understandable to the suspect or the accused about such right and if any negligence or fault on the part of such officer in discharging such duty, will certainly go in favour of the accused. Thus in the present case, it can be seen that the substantial evidence adduced by the prosecution by examining either PW6 or PW4 and other witnesses does not disclose the true compliance of section 50 of the NDPS Act and the words used in the extracted portion of Ext.P2 seizure mahazar, according to me, are not sufficient to make aware the accused her right under section 50 of the NDPS Act and therefore in the present case, the prosecution has miserably failed to carry out the statutory mandate contained in section 50 of the NDPS Act and therefore on that ground also, the prosecution case fails.
10. In the light of the above discussion and in view of Crl.A.No.1762 of 2003 14 the facts and circumstances mentioned above and the evidence and materials referred above, particularly in view of the authorities cited above, I am of the view that, the trial court is not justified in convicting the appellant and therefore I am unable to concur the findings of the court below. Accordingly, the conviction recorded by the trial court against the appellant for the offence under section 20 (b)(1) of the NDPS Act is set aside. In the result, this appeal is allowed setting aside the judgment dated 18.10.2003 in S.C.No.636/01 of the court of Additional Sessions Judge, Kollam, and the appellant/ accused is acquitted of all the charges levelled against her and the bail bond if any executed shall stand cancelled and she is set at liberty. Sd/- V.K.MOHANAN, Judge ami/ //True copy// P.A. to Judge