M.R. Hariharan Nair, J.
1. A novel question arises in this case and that is whether in a case where additionalevidence is recorded under Section 391(2) of the Code of Criminal Procedure in an N.D.P.S.Act case, the accused can seek the benefit of Section 41 of the N.D.P.S. (Amendment)Act, 2001 (Act 9 of 2001). The said provision gives the benefit of reduced sentenceavailable under the amended provisions with retrospective effect to the accused whosecases are still under trail; but denies that benefit to the accused in cases which arepending before the appellate court.
2. The challenge in the appeal is with regard to the conviction entered against theappellant as accused in S.C. No. 78/2000 of the Special Court for the Trial of theN.D.P.S. Act Cases, Vadakara, for the offence punishable under Section 21 of the N.D.P.S.Act and the sentence of rigorous imprisonment for 10 years and fine of Rs. 1 lakh (indefault, simple imprisonment for six months) imposed therefor.
3. The prosecution case that at about 2 p.m. on 24.6.1999, P.W. 3, who was theSub Inspector of Vengara Police Station, who was doing patrol within his area ofjurisdiction, got a secret information that sale of brown sugar was going on in thepremises of the house of Sathyapalan (accused); that after communication of theinformation to the official superior, he proceeded to the spot along with his policeparty, detained the accused, who was found near the pathway leading to his housewhile he was in the process of slipping away from the place on seeing the police party;that in the subsequent body search effected after compliance with the requirementsof Section 50 of the N.D.P.S. Act, a packet containing brown sugar was found on the leftpocket of the shirt worn by the accused and that the weight of the brown sugar foundin the plastic cover which was inside the aforesaid packet (covered with paper) wasfound to be 2.5. grams found acceptance by the trial court.
4. When this matter was heard earlier, noticing the fact that the occurrencewitnesses had turned hostile and that the evidence of the searching official alone wasavailable to prove the matter and that there was no effort made by the trial court toexamine the other occurrence witnesses, who had been cited in the case, I passed anorder on 27.9.2001 invoking the power under Section 391 of the Cr.P.C. The records weredirected to be sent back to the Special Judge with a direction that he might issuesummons to the other witnesses, who were in the patrol party of P.W. 3 at the time ofoccurrence; record the evidence of such of them as are available for examination;certify the evidence so recorded as contemplated in Section 391(2) of the Cr.P.C. andforward the same to this Court. It was also observed in the order that the accusedshould also be questioned under Section 313 of the Cr.P.C. and afforded an opportunity toadduce appropriate defence evidence in the light of the prospective evidence of theprosecution that the trial court was expected to record.
5. Pursuant to the above direction, the trial court has examined P.Ws. 5 and 6and also questioned the accused with regard to the circumstances appearing in theirevidence, It also afforded an opportunity to the accused to adduce defence evidence.However, that opportunity was not availed of by the accused.
6. In between the date of the aforesaid order of this Court and this date, theN.D.P.S. Act underwent substantial changes. While quantity of brown sugar weighingless than 250 mgs. alone was small quantity under the N.D.P.S. Act as it stood on thedate of occurrence, the limit of small quantity has been enhanced to 5 grams underAct 9 of 2001 which came into effect on 2.10.2001. Under the same amendment,commercial quantity of brown sugar was also defined. This was notified as 250grams. The impact of the amendment is that the quantum of brown sugar seized inthe case viz., 2.5 grams was beyond the limit of small quantity as on the date ofoccurrence; but is a small quantity under the law as it stands today. It is also muchless than the commercial quantity of the item as defined under the amended Act. Yetanother impact of the amendment is that the punishment for possessing small quantityof brown sugar under Section 21 of the Act is only imprisonment for a term which mayextend to six months or fine which may extend to ten thousand rupees in the place ofrigorous imprisonment for a period which shall not be less than 10 years; but whichmight extend to 20 years besides fine which shall not be less than one lakh rupees; butwhich might extend to two lakhs rupees. Yet another novel feature of the saidamendment is the introduction of retrospective effect with regard to the punishmentfor the offence vide Section 41 of the Amendment Act. It is provided that any personfound guilty of any offence punishable under the principal Act, as it stood immediatelybefore the commencement of the Amendment Act shall be liable for a punishmentwhich is lesser than the punishment for which he was otherwise liable on the date ofcommission of such offence.
7. In the light of the aforesaid provisions, the learned counsel for the appellantsubmitted that in so far as additional evidence of P.Ws. 5 and 6 were collected by thetrial court on 18.12.2001 which is after the commencement of the Amendment Act,the accused should be given the benefit of the amendment viz., the lesser punishmentfor possessing small quantity as defined in the Amendment Act. The learned counselalso submitted that the case is cooked up by the prosecution without any factual basisand that there is no reliable evidence forthcoming to prove that the accused hascommitted the crime. Violation of the mandatory provisions in the N.D.P.S. Act,especially Sections 42 and 50 are also highlighted by the learned counsel for the appellant.
8. On the arguments advanced in this case, the points that arise for decision are:
(1) Whether the accused was found in possession of 2.5 grams of brown sugar on24.8.1999 as alleged?
(2) Whether there is violation of the mandatory provisions in Sections 42 and 50 of the N.D.P.S.Act?
(3) Whether the accused is entitled to the benefit of the amended provisions on thegrouped that part of the trial has taken place after the commencement of the AmendmentAct on 2.10.2001?
9. Point No. 1:- I have carefully perused the evidence of P.W. 3, who was theS.I. of Vengara Police Station. He has deposed about the receipt of information with,regard to the sale of brown sugar in the premises of the accused's house and aboutthe forwarding of Ext. P5 report with regard to the said information to the officialsuperior, viz., Circle Inspector of Police. Serious attack is made with regard to thegenuineness of Ext. P5 in so far as underneath the signature of the Sub Inspector, thedate '28.5.1999' is written, whereas the date of occurrence alleged in the case is'24.8.1999'. According to the learned counsel for the appellant, this shows that Ext. P5 isa document created subsequently to support the prosecution case and that there was,in fact, no timely conveyance of the information to the official superior.
10. The discrepancy with regard to the date was put to P.W. 3 and his answerwas that he made a mistake in interchanging the figures of '5' and '8'. The learnedcounsel submits that even accepting the said version, what could have happened wasonly the writing of the date '28.4.1999' and that there was absolutely no possibility ofthe date '28.5.1999' creeping in. I find no merit in the said submission. Here is anoccurrence which took place in August, 1999 and there was absolutely no benefitderived by the prosecution in creating a document with a date 3 months prior to that.That apart, the report itself starts with the specific statement that the information wasreceived 'today, 24.8.1999'. Obviously, the report was written on 24.8.1999 which isthe date of occurrence. There is an important aspect which supports this inferenceand that is the fact that Ext. P5 copy of the report has reached the trial court on thevery next day viz., 25.8.1999 as evident from the initials of the learned Special Judgenear the seal of the Special Court. The contention that Ext. P5 is a subsequentcreation and that it was done with the intention of creating evidence has therefore tofail. The mistake in the date written at the bottom of Ext. P5 is hence inconsequential
11. PW. 3 was further deposed that at about 2.30 p.m. he reached the portion ofthe road where the pathway leading to the house of the accused starts and found theaccused standing near an embankment available beside the pathway. On seeing thepolice jeep, the accused tried to slip away. He was detained and informed that he wassuspected to be in possession of brown sugar; that his body was proposed to besearched; that he was entitled to have the presence of a Gazetted Officer or a Magistrateto witness such search and also asked about his option in that regard. The accusedgave a negative reply which was recorded at the spot and got signed by the accusedand other witnesses. Ext. P1 contains the details of the questions put to the accusedand his answer. A perusal of Ext. P1 shows that before putting the question withregard to the option of the accused, the accused was also made aware of his rightunder law for having the search conducted in the presence of a Gazetted Officer or aMagistrate. I may immediately add that Ext. P1 is also a record that has reached thetrial court on the very next day of occurrence. Ext. P1 provides corroboration to theevidence of P.W. 3 with regard to the details of the questions put as a prelude to thesearch conducted by him.
12. It was further deposed by P.W. 3 that the body search of the accused revealedthe existence of a paper packet at the left pocket of the shirt worn by him. Whenopened, it revealed a plastic cover within which brown sugar was found besides twocylindrical metal tubes obviously an apparatus for facilitating inhalation of the brownsugar. P.W. 3 has stated that the brown sugar so seized was found to be 2.5 grams inweight when weighed at the spot. He also deposed about the other proceduralformalities done by him including preparation of Ext. P2 seizure mahazar which alsoreached the learned Special Judge on the very next day.
13. P.W. 1 and 2 were independent witnesses cited to prove the occurrence.Both of them turned hostile. Ext. P3 series are the contradictions appearing in theCase Diary statements of P.W. 1 and Ext. P4 series are similar contradictions in theCase Diary statements of P.W. 2. The said contradictions show that the witnesseshad switched over allegiance after the date of occurrence and were not speaking thetruth before Court. It is significant to note here that even these witnesses have admittedtheir signatures in all the contemporaneous documents including the seizure mahazarand the paper with which the seized object was covered and sealed at the spot. It wason the basis of these items of evidence that the trial court originally entered theconviction. However, it was seriously contended before this Court during hearing on27.9.2001 that it was totally unsafe for the trial court to have relied upon the version ofthe searching official alone and that there was no proper corroboration available otherthan in the document. Reliance was also placed on the decision in Bhola RamKushwaha v. State of M.P. (2001 (1) SCC 35) in support of the contention that insimilar case where the evidence consisted of the sole testimony of the police officer,the Apex Court had granted the benefit of doubt on the facts of that case.
14. It was in these circumstances that this Court felt that the circumstanceswarranted collection of further evidence under Section 391(2) of the Cr.P.C. and directedsuch evidence to be collected.
15. The evidence of P.Ws. 5 and 6 recorded pursuant to the above order affordfull corroboration to the evidence of P.W. 3. The fact is that even without the evidenceof P.Ws. 5 and 6 this Court would have been justified in entering a conviction. Theadditional evidence was intended only to get further assurance with regard to theculpability or otherwise of the accused.
16. P.W. 5 was a Police Constable who had accompanied P.W. 3 and he hasdeposed about the entire incident. So did P.W. 6, who was another Police Constablein the party.
17. The learned counsel for the appellant submitted that it is not recorded thatany money or other object was available with the accused at the time when the seizurewas effected and that the evidence of D.W. 1 shows that at the time when the accusedwas taken to the prison under remand a sum of Rs. 82/- in a purse and a Western (sic)wrist-watch were available with him. I do not think that the failure to record thedetails of the objects which had no direct relationship with the crime in question in theseizure mahazar has effected the veracity of the prosecution case. I conclude thatthere was sufficient justification for the trial court to find that the accused has committedthe offence under Section 21 of the N.D.P.S. Act.
18. Point No. 2:- While dealing with Point No. 1, I have already referred to thefact Ext. P2 is a contemporaneous document reporting the information under Section 42 ofthe N.D.P.S. Act. Even assuming that there is no concrete evidence to show that theoriginal of Ext. P5 had reached the official superior viz., P.W. 4 still the accusedcannot be found entitled to get an acquittal under Section 42 of the N.D.P.S. Act. Thereason is that the information that P.W. 3 got with regard to the accused was not thathe was available in a building, conveyance or enclosed place, but that he was availableonly in the premises of his house. The accused was found beside the pathway leadingto his house and it was not an enclosed place. The decision in Abdul Azeez v. Stateof Kerala (2001 (1) KLT 805) is precedent for the legal position that Section 42 would beattracted only to cases where the information relates to the availability of the contrabandin a building, conveyance or enclosed place. The information in the present casebeing not to the said effect, there was no question of compliance with Section 42 of theN.D.P.S. Act at all.
19. While discussing Point No. 1, I have also found that Ext. P1 is acontemporaneous document and that the contents thereof amply prove the fact thatthe accused was made aware of his rights under Section 50 and also asked about his option,whereto a negative reply was given by the accused under his own signature. In fact,Ext. P1 is attested by P.Ws. 1 and 2 and even these hostile witnesses had admittedtheir signatures not only in Ext. P1 but also in Ext. P2 mahazar. There is also oralevidence of P.W. 3 which is corroborated by P.W. 5 and 6 on this aspect. In thesecircumstances, there is no violation of Section 50 of the N.D.P.S. Act also.
20. Point No. 3:- Section 41 of the Act 9 of 2001 which came into effect on 2.10.2001reads as follows:
'41. Application of this Act to pending cases.-
(1) Notwithstanding anything contained in Sub-section (2) of Section 1, all cases pending before theCourts or under investigation at the commencement of this Act shall be disposed of inaccordance with the provisions of the principal Act as amended by this Act and accordingly,any person found guilty of any offence punishable under the principal Act, as it stoodimmediately before such commencement, shall be liable for a punishment which is lesser thanthe punishment for which he is otherwise liable at the date of the commission of such offence;Provided that nothing in this section shall apply to cases pending in appeal.
(2) For the removal of doubts, it is hereby declared that no Act or omission on the part ofany person shall be punishable as an offence which would not have been so punishable if thisAct has not come into force.'
It is a fact that the small quantity of brown sugar as on the date of occurrencewas only 250 mg.; but it stands enhanced to 5 grams under the Amendment Act. Theconsequence thereof is that the quantum seized in the present case would have beena small quantity if only the detection was made after 2.10.2001.
21. Shri George Thomas M., the learned counsel for the appellant, is right in hissubmission that the commercial quantity of brown sugar is 250 grams and for thatafter the amendment the minimum punishment of rigorous imprisonment for ten yearsand fine of one lakh rupees could be given in the case of brown sugar only for possessionof quantum of not less than 250 grams. In Section 41 aforementioned it is specified incategoric terms that the amended provision would be applicable only to all casespending trial as on 2.10.2001 and that it shall not apply to cases pending in appeal. Thecrucial question that arises therefore is whether as on 2.10.2001 the case was pendingbefore the trial court or before the appellate court. During hearing the learned counselfor the appellant drew my attention to Section 391(4) of the Cr.P.C. which provides that thetaking of evidence under Section 391 shall be subject to the provisions of Chapter XXIII asif it were an enquiry. Chapter XXIII relates to collection of evidence in inquiries andtrials. The argument of the learned counsel for the appellant therefore is that thecollection of evidence made by the trial court on 18.12.2001 pursuant to the order ofthis Court dated 27.9.2001 is actually an admission of evidence as though in an enquiryunder Chapter XXIII in which case it has to be taken that part of the trial has takenplace on 18.12.2001 and therefore the accused is entitled to the benefit of Section 41aforementioned.
22. I find no merit in the said contention. To appreciate the application of Section 41,it is necessary to understand the scope and ambit of Section 391 of the Cr.P.C. which readsas follows:
'391. Appellate Court may take further evidence or direct it to be taken.-
(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinksadditional evidence to be necessary, shall record its reasons and may either take suchevidence itself, or direct it to be taken by a Magistrate, or when the Appellate Courtis a High Court, by a Court of Sessions or a Magistrate.
(2) When the additional evidence is taken by the Court of Session or the Magistrate, itor he shall certify such evidence to the Appellate Court, and such court shallthereupon proceed to dispose of the appeal.
(3) The accused or his pleader shall have the right to be present when the additionalevidence is taken.
(4) The taking of evidence under this Section shall be subject to the provisions of ChapterXXIII, as if it were an inquiry.'
23. This is a special provision to be rarely invoked by the appellate court. Itforms an exception to the general rule that an appeal must be decided on the evidencewhich was before the trial court. Its manifest object is the maintenance of interests ofjustice. Its invocation may be for the prevention of a guilty man's escape throughcarelessness or ignorance on the part of the trial court in holding its proceedings asalso for vindication of an innocent person wrongly accused where the trial court,through some carelessness or ignorance, has omitted to record the evidence necessaryfor elucidation of the truth. The power to order such evidence is a discretionarypower. For invoking it, it is not necessary that it should be impossible to pronouncejudgment without additional evidence. It is a fact that if the additional evidence isunfavourable to the accused, it would result in difficulty for the accused; but there isnothing in the section which provides that the additional evidence can be taken only ifit favours the defence and not if it favours the prosecution.
24. The only question to be looked into by the appellate court before applying thesection is whether it satisfies that the additional evidence is necessary in the interestsof justice. Such evidence may be recorded by the appellate court, if it is so inclined, orit can be collected through the trial court. In either case the purpose is not to fill up thelacuna in the available evidence; but to ensure that there would be no failure of justicefor want of proper evidence. If the process of admitting further evidence iscomparatively simple, the appellate court may collect the evidence itself. On theother hand, if it is likely to be long and complicated, that is to say, requiring theexamination and cross-examination of several witnesses on summons and marking ofexhibits, it is often desirable to get it through the trial court. In either case the collectionof evidence is by the appellate court and during the pendency of the appeal and notafter its disposal. It cannot therefore be said that at the time when the trial courtcollected additional evidence the appeal had been disposed of for the purpose of Section 41aforementioned.
25. No re-trial was ordered in this case. It was keeping the appeal pendingbefore this Court that a direction was given to collect further evidence under Section 391(2)of the Cr.P.C. Since Section 41 specifically states that the amended provisions shall not beapplicable to cases pending in appeal, there is no question of the present accusedgetting the benefit of the amended provisions in the Act. The case in hand has to bedecided in accordance with law as applicable on 24.8.1999. Viewed from thisperspective, the quantum of brown sugar seized in this case cannot be taken as smallquantity. Nor can be punishment prescribed for possession of a quantity less than thecommercial quantity, as it stands in Section 21 now, be applied to the accused.
26. In view of the above findings, the appellant loses his case. The convictionentered against the appellant under Section 21 of the NDPS Act has to stand. The sentenceimposed is only the minimum prescribed by law as it stood on the date of occurrenceviz., 24.8.1999.
In the circumstances, the appeal is found to be without merit and it is dismissed.