Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 7TH DAY OF JUNE 2023 / 17TH JYAISHTA, 1945 CRL.A NO. 1105 OF 2018 AGAINST THE JUDGMENT DATED 17.05.2018 IN S.C.NO.39/2017 OF SPECIAL COURT (NDPS ACT CASES), THODUPUZHA APPELLANT/ACCUSED: SUBIN S/O SURESHBABU, MOHANAVILASAM HOUSE, PETTICKAL P.O, PETTICKAL KARA, SHOLAYOOR VILLAGE, MANNARKADU TALUK, PALAKKAD DISTRICT CNO. 4193, CENTRAL RISONM, VIYOOR THRISSUR DISTRICT PIN 680 010. BY ADV.MANJU ANTONEY RESPONDENT/PROSECUTION/STATE: STATE OF KERALA REPRESENTED BY CIRCLE INSPECTOR OF POLICE, STATE OF KERALA REP. BY THE CIRCLE INSPECTOR OF EXCISE, UDUMBANCHOLA(CRIME NO.15/2017 OF EXCISE CIRCLE OFFICE , UDUMBANCHOLA )IDUKKI DISTRICT, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN 682 031 BY SMT.NIMA JACOB, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Dated this the 07th day of June, 2023 The appeal on hand is directed against a judgment of
Special Court for NDPS Act Cases, Thodupuzha (for short ‘the trial court’) on 17.05.2018 in SC (NDPS) No.39/2017. By the impugned judgment the sole accused in the case was found guilty for an offence punishable under Section 20(b)(ii)(B) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’) and convicted and sentenced to undergo rigourous imprisonment for six years and to pay a fine of `50,000/- and to undergo rigorous imprisonment for six
months in default of payment of fine. He was also allowed set off for the period already remained in custody under Section 428 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’). The parties to this appeal will hereinafter be referred to as the accused and the State with reference to their status before the trial court.
2. The facts of the case in brief are to the following
effect: On 19.03.2017 at about 11.30 a.m., the accused was found in possession of 1.25Kg of dried ganja at Bodymettu Kara in Chinnakkanal Village in contravention of the provisions of the NDPS Act. The case was detected by the Excise Circle Inspector, Udumbanchola. Accused was arrested and the contraband ganja was seized from his possession. A crime was registered by the Excise Circle Inspector, Udumbanchola. The investigation was then continued and concluded by another officer. The final report was laid before the trial court and cognizance was taken.
3. On production of the accused before the trial
court, the learned Special Public Prosecutor and the learned counsel for the defence were heard. The materials furnished by the prosecution were perused. Charge was framed against the accused for an offence punishable under Section 20(b)(ii)
(B) NDPS Act. Charge framed was read over and explained to the accused in Malayalam. He pleaded not guilty and claimed to be tried.
4. The trial was then scheduled and proceeded with. On the side of the prosecution, PWs 1 to 5 were examined and Exts.P1 to P15 were marked. MOs 1 to 5 were also
identified and marked in evidence. On closure of the evidence of the prosecution, accused was questioned under Section 313(1)(b) Cr.P.C with reference to the incriminating circumstances brought in evidence against him by the
prosecution. He denied all those circumstances and submitted that the offence alleged was not committed by him. The learned Public Prosecutor and the learned counsel for the defence were heard then under Section 232 Cr.P.C. Grounds were not made out to record an order of acquittal and therefore, the accused was asked to enter on his defence. Exts.D1 and D2 were marked on the side of the defence.
5. Following points were considered by the trial court:
“1) Whether the accused was found in possession of 1.250kg of dried ganja in violation of the provisions of NDPS Act, as alleged? 2) Whether the accused is guilty of an offence punishable U/s 20(b)(ii)B of NDPS Act? 3) The offence, if any, committed and sentence or
order to be passed?”
The above points were considered together and found against the accused. The accused was found guilty and convicted and sentenced as stated hereinabove. The following are the grounds raised in the appeal memorandum while seeking to set aside the judgment. The first ground was that Section 50 of the NDPS Act was not complied with by the detecting officer while conducting search on the body of the accused. Second contention was that Section 42 of the NDPS Act was violated. The third contention was against appreciation of the evidence by the prosecution.
6. The learned Public Prosecutor contended on the
contrary that the entire evidence adduced by the prosecution have been appreciated by the trial court in the proper perspective. According to her, the evidence is sufficient and satisfactory to take a view that mandatory requirements under Sections 42 and 50 NDPS Act have been complied with.
7. In the backdrop of the rival contentions raised as above, this Court has gone through the evidence on record to see whether Sections 50 as well as 42 NDPS Act have been
violated by the detecting officer in the case on hand. As already stated, the accused was chargesheeted for an offence under Section 20(b)(ii)(B) NDPS Act. The offence alleged was detected by the Excise Circle Inspector, Udumbanchola. He was examined during trial as PW1. He has prepared the crime and occurrence report, marked in
evidence as Ext.P6 and conducted investigation partly. The investigation was continued and concluded by another officer examined before the court as PW3.
8. It was stated categorically by PW1 that at about
11.30 a.m. on 19.03.2017, while he was engaged in checking vehicles at Bodymettu Excise Check Post, the accused was found proceeding against, carrying a bag. On questioning him, he got perplexed. He was restrained from proceeding further and the bag carried by him was examined. A packet was found kept inside. He was informed of his right to have the body search conducted in the presence of a Gazetted Officer or a Magistrate in writing which is marked in evidence as Ext.P5. The accused replied in the negative and the same
is established from a signed note obtained from him and marked in evidence as Ext.P5(a). Therefore, the body of the accused was searched in the presence of witnesses gathered there and a Mobile Phone and currency notes worth `150/- were recovered. Those are marked in evidence as MO4 and MO5 series. Ganja was weighed and found to be 1.250 Kg.
25 gm each were taken as samples from the contraband. The contraband alongwith samples drawn and other properties recovered from the accused were packed and sealed. Seizure mahazar was also prepared which is Ext.P1. Arrest memos were prepared and marked in evidence as Exts. P2 and P3. Thereafter, the properties alongwith the accused and the seizure mahazar were brought to the Excise Range Office and there the crime was registered, marked in evidence as Ext.P6. A report narrating the particulars regarding the seizure of the ganja and arrest of the accused were forwarded to the immediate official superior of PW1 under Section 57 NDPS Act and was marked in evidence as Ext.P7.
9. Thereafter, an application was filed before Judicial First Class Magistrate Court, Nedumkandom in compliance of
Section 52A NDPS Act. An inventory was prepared and placed before the court which was marked in evidence as Ext.P10(a). Correctness of the inventory was certified by the Magistrate and the certificate issued was marked in evidence as Ext.P10. Photographs taken in the presence of the Magistrate were also marked in evidence as Ext.P11 series. PW1 identified the contraband and other associated articles produced before the court, marked in evidence as MOs 1 to 5.
10. PW2 is an independent witness, who was available at the scene of occurrence at the time of the detection and
the seizure of the contraband. According to him, he was asked by PW1 to put his signature in Ext.P1, the seizure mahazar, Ext.P2, the arrest memo and Ext.P8, the search list. The Superior Officer of PW1, to whom report under Section 57 NDPS Act has been forwarded by him on 20.03.2017 was examined as PW5. The report is marked in evidence as Ext.P7 and PW5 admits in the box to have
received it.
11. Ext.P5 is the notice issued to the accused
informing him about his right to have his body search conducted in the presence of a Gazetted Officer or a Magistrate as envisaged under Section 50 of the NDPS Act. The accused has taken a stand during trial that Ext.P5 notice was not given to him. He had taken a contrary stand during the course of examination that infact he had opted to have his body search conducted in the presence of a Gazetted Officer or Magistrate, but the presence of one was not made available by the detecting officer. It is pertinent to note that Ext.P5 was relied on by the trial court for the reason that the marking of it was not opposed by the accused.
12. The accused urged that though he had opted for
the presence of a Gazetted Officer or a Magistrate to witness his body search, none was made available. It is clear therefrom that the detecting officer has informed him of his right to be searched in the presence of a Gazetted Officer or Magistrate but, his option to have the presence of a Gazetted Officer was declined by the prosecution. Exts.P5
and P5(a) were marked by the prosecution in evidence without being objected to by the defence. Those are nothing but the information in writing to the accused making him aware of his right to have the presence of a Gazetted Officer or a Magistrate to witness his body search and the reply in writing given by the accused to PW1 that the body search is
intended to be conducted by PW1 himself. Therefore, the contention raised that PW1 failed to procure the presence of a Gazetted Officer as opted by him to witness his body search is only liable to be discarded being devoid of any merits.
13. The second contention raised was about violation
of the mandates of Section 42 of the NDPS Act. Section 42 of the NDPS Act is extracted hereunder for convenient reference: “42.Power of entry, search, seizure and arrest without warrant or authorisation.-
(1) Any such officer (being an officer superior in rank to
a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of
the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,-
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all
materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; and
(d) detain and search, and if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector: Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in
writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.” It is contemplated under the above provision that if any of the officers empowered thereunder receives any information and on being convinced of that, must record it in writing. Section 42 NDPS Act further provides that if from the information received, the officer empowered under the provision is convinced that some prohibited substances, the possession of which is made an offence is kept concealed in any building, place or conveyance, he has to conduct a search and if the search proposed is to be conducted after sunrise and before sunset, a search warrant shall be obtained from the nearby court. If the officer has reason to believe that within the time taken to obtain the search warrant, there is chance for the accused to escape or to conceal those substances, he can avoid obtaining a search warrant but he
has to record the grounds for doing so. If he records any reasons for not doing so, that shall be forwarded in the form of a report to his immediate official superior within 72 hours. It is pertinent to note from the case of the prosecution as well as the evidence adduced in the case on hand that dried ganja was seized from the bag carried by the accused. The recovery was not from a concealed place, building or
conveyance. Therefore, there is no requirement for compliance of Section 42 NDPS Act in the case on hand. Contention raised against that is repelled for the reasons.
14. The third ground raised in the appeal was that the trial court failed to appreciate the evidence tendered by the
prosecution correctly. As already stated, oral as well as documentary evidence were adduced by the prosecution. The oral as well as documentary evidence were already discussed with. The detecting officer was examined as PW1 and his competency to deal as an authorised officer under the
NDPS Act is not disputed. He deposed categorically about various aspects of detection and search of the person as well as the bag carried by him and seizure of the contraband therefrom. He has also deposed about the manner in which the contraband has been recovered, packed, sealed and produced before the court. An independent witness was also
examined as PW2. He deposed categorically that relevant documents evidencing the seizure of the contraband and the arrest of the accused marked respectively as Exts.P1, P2 and Ext.P8 were signed by him. The admission of signature by PW2 in Exts.P1, P2 and P8 would go to show that he was available at the spot wherefrom those were prepared. Therefore, the evidence of the official witnesses find corroboration in the oral evidence tendered by PW2.
15. PW5 is none other than the official superior of PW1. He deposed categorically before the court that the report prepared by PW1 and claimed to have been forwarded to him was received by him. Therefore, compliance of Section 57 NDPS Act is also satisfactorily established by the prosecution.
16. Therefore, the available evidence, which have
been referred to hereinabove constrains this Court to take a view that the trial court is justified in arriving at a finding of guilt of the accused for the offence under Section 20(b)(ii)
(B) NDPS Act. The argument of the learned counsel that the evidence was not properly appreciated is discarded for being devoid of any basis.
17. The punishment liable to be imposed under Section
20(b)(ii)(B) NDPS Act is rigorous imprisonment upto ten years and fine upto `1,00,000/-. Therefore there is scope for exercise of discretion in the matter of imposition of sentence. Ext.P15 marked in evidence is nothing but a copy of the
judgment in S.T.No.1136/2017 whereby the accused was
found guilty and convicted and sentenced for an offence punishable under Sections 20(b)(ii)(A), 25, 8 (C) and 29 NDPS Act. Therefore having been convinced of the tendency of the accused to repeat commission of the offences coming within the purview of the NDPS Act, this Court is hesitant to exercise the discretion. The judgment assailed is confirmed. Crl.Appeal fails for the reasons and is dismissed. The trial court shall proceed to execute the sentence against the accused forthwith. Sd/- MARY JOSEPH JUDGE NAB