IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 638 of 2009()
1. KRISHNAKUMAR @ CHERUPPU KUMAR,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.AJITH KRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :24/03/2010
O R D E R
V.K.MOHANAN, J.
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Crl. APPEAL No.638 of 2009
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Dated this the 24th day of March, 2010.
J U D G M E N T
This appeal is preferred by the sole accused, challenging
the judgment dated 29.11.2008 in S.C.No.34/2007, by which the
appellant stand convicted and sentenced u/s.20(b)(1) of
Narcotic Drugs and Psychotropic Substances Act, 1985.
2. The prosecution case is that when PW4, the Sub
Inspector of Police, Poonthura Police station and party while
they were conducting patrol duty, on 18.5.2005, received an
information that, in T.C.No.43/2305 of Puthuval Puthenveedu,
where the accused and family residing, the accused
unauthorisedly keeping ganja and accordingly search was
conducted in the said house and thus detected 1175 gms of
ganja kept in the kitchen of the said house and the accused was
arrested at about 5.45 PM on the same date. Thereafter, PW4
and party came to the police station along with the accused and
the contraband article seized and thereafter registered crime
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No.122/05, in Poonthura police station for the offence u/s.20(b)(ii)
(B) of NDPS Act. On completing the investigation in the above
crime, a report was filed before the committal court, namely, JFCM
Court-II, Trivandrum, wherein committal proceedings were initiated
and the case was committed to the Sessions Court, from where it
was made over to the Court of Addl. Sessions Judge and then to
Additional District and Sessions Court-II, Thiruvananthapuram,
and subsequently transferred to the trial court. On the
appearance of the accused, a formal charge was framed u/s.20(b)
(ii)(B) of NDPS Act, which was read over and explained to him and
he denied the said charge and pleaded not guilty. Thereafter, the
prosecution adduced its evidence consists of oral testimony of
Pws.1 to 6 and documentary evidence consists of Exts.P1 to P7.
M.O.s 1 to 6 were identified as material objects. No evidence,
either oral or documentary, produced from the side of the defence.
On the basis of the available evidence and materials on record,
the trial court found that the accused has committed the offence,
for which he was tried and accordingly the appellant is convicted
u/s.20(b)(ii)(B) of NDPS Act and sentenced him to undergo
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rigorous imprisonment for 4 years and to pay a fine of Rs.25,000/-
and the default sentence is fixed as 2 years imprisonment. It is
directed that the sentence awarded against the appellant shall run
concurrently with the sentence, which he is undergoing in another
case. It is the above conviction and sentence challenged in this
appeal.
3. I have heard the learned counsel for the appellant and
also the learned Public Prosecutor. To substantiate the case
against the accused/appellant, the prosecution very much relied
upon the evidences of Pws.1, 2 and 4. PW2 is an independent
witness, who is the attester to Ext.P1 search list. He had also
identified M.O.1, the letter and M.O.2 series of 144 newspaper
pieces. PWs.1 and 4 deposed that, when they were on patrol
duty, received an information to the effect that the accused was
conducting sale of ganja in his house. Thus according to them,
they proceeded to the house of the accused, who was found in
front of the said house and on questioning him, his reply was not
satisfactory and therefore PW4 got suspicion about the storage of
ganja in the said house. It is the further case of PW4 that, under
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the said suspicious circumstances, PW4 informed the matter to
the Crime Sub Inspector of police, ie., one Mr.Ganesan, through
wireless and asked him to come after preparing the search list.
PW1 is very specific that at about 5.30 PM the said S.I. of police
reached with the search list. It is also the case of PW4 that, he
had prepared Ext.P3 search memo and sent the same to the court
and after obtaining the service of PW2 and CW1, they conducted
the search in the house of the accused. It is also the case of
Pws.1 and 4 that before the search, they have complied with the
mandatory requirements u/s.50 of the NDPS Act. Thus according
to the police, the search was conducted in the house of the
accused in the presence of independent witnesses and
accordingly, detected a plastic cover in the kitchen beneath the
slab. According to the prosecution, there were 144 small packets
in the plastic cover, having a total weight of 280 gms and another
895 gms of ganja were also found beside the said 144 packets.
Thus according to the prosecution, altogether the ganja that
detected will come about 1175 gms. According to the prosecution,
two samples were taken containing 50 gms each and the same
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were separately sealed and labelled and thereafter the accused
was arrested. The accused was arrested as per Ext.P5 arrest
memo and Ext.P6 inspection memo. Ext.P7 is the intimation
given to the wife of the accused. The prosecution had identified
M.O.1 as ganja of having 1175 gms. All the labels pasted on the
material objects contained the signatures of accused, the
independent witnesses and the officer, who seized the same,
namely PW4. PW2 deposed in terms of the prosecution case,
when he was examined. PW3 is the expert through whom Ext.P2
chemical analysts report proved. PW5 is the Circle Inspector of
police, who sent the samples for a chemical analysis and PW6,
the C.I. of police, laid the charge. It is on the basis of the above
materials, the trial court found the accused guilty.
4. The learned counsel for the appellant vehemently
submitted that, absolutely there is no evidence or materials to
establish that the prosecution has complied with the mandatory
provisions of Section 42 of NDPS Act. According to the learned
counsel, no report as contemplated u/s.42(2) of NDPS Act is
prepared and produced by the prosecution. It is also the case of
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the learned counsel that PW4, who claimed to have received the
information, did not venture to write down the information received
by him. Thus according to the learned counsel, in the light of the
settled position of law, the accused/appellant is entitled to get a
clear acquittal for non-compliance of the statutory mandate that
contained in Section 42 of NDPS Act. It is also the contention of
the learned counsel that, even though PW4 has not recorded the
information received by him and no report was prepared to sent to
the higher officials, as required u/s.42(2) of NDPS Act, even after
the so called search and seizure of the contraband article, no
report was sent to the higher officials. Another contention raised
by the counsel for the appellant is to the effect that, though the
alleged seizure was on 18.5.2005, absolutely there is no evidence
to show that the contraband article has produced before the court.
The learned counsel pointed out that, no property list was
prepared and produced before the court and there is nothing on
record to show that the court has received any property produced
by the prosecution agency. The learned counsel invited my
attention to Ext.P2 FSL report, wherein there is an endorsement to
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the effect that, the same were forwarded to the lab by a letter
dated 15.6.2006. According to the learned counsel, even if it is
assumed that the contraband article was sent to the lab on
15.6.2006, there is no evidence as to where the contraband article
were kept, after the alleged seizure on 18.5.2005. There is also
no evidence as to who is the custodian of the contraband article in
the meanwhile. It is also pointed out by the learned counsel that,
the seizure and drawing of sample were done in a highly improper
and illegal manner, which prejudiced the defence. According to
the learned counsel, absolutely there is no evidence as to the real
quantity of ganja, allegedly possessed by the accused. So
according to the learned counsel, the appellant is entitled to get an
acquittal.
5. On the other hand, the learned Public Prosecutor
submitted that PW4 received the information, when himself and
party were on patrol duty and at that time it was impossible for him
to reduce the same into writing as envisaged u/s.42(i) of NDPS
Act and therefore the contention of the counsel for the appellant in
this regard is liable to be rejected, especially in the light of the
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decision of this court in Sajan Abraham Vs. State of Kerala,
reported in [2001 Crl. Law Journal 4002]. It is also the contention
of the learned Public Prosecutor that as evidenced by Ext.P2, the
contraband articles were reached in the court and therefore it is
clear that the articles were already produced before the court and
all contentions raised by the defence is liable to be rejected.
6. I have carefully considered the arguments advanced by
the learned counsel for the appellant and the learned Public
Prosecutor and also perused the evidence and materials on
record. In the present case, according to the prosecution, PW4
and party received the information regarding the contravention of
the provisions of the Act by keeping of ganja in the house of the
accused, while they were on patrol duty and therefore the
contention raised by the learned counsel for the appellant,
regarding the non-compliance of Sections 42(i) and 42(ii) of NDPS
Act, are not relevant in the present case. It is also relevant to note
that on getting the information, before conducting the search, PW4
had prepared Ext.P3 search memo, which sent to the court and it
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can be treated as compliance of S.42 of NDPS Act, in the light of
the proviso contained therein. In the light of the other facts and
circumstances and the evidence involved in the case, I am not
proposed to enter into more discussion, regarding the question
raised by the counsel with respect to the non-compliance of S.42
of NDPS Act.
7. Though the learned Public Prosecutor opposed the
contentions raised by the learned counsel for the appellant, the
learned Public Prosecutor miserably failed to convince this court
that, the articles allegedly seized from the house of the accused,
were produced before the court on any date, before the
commencement of the trial. It is pertinent to note that, no property
list and no forwarding note are produced in the court below and no
record of the court is also produced showing that, the properties
were produced before the court and the court has acknowledged
the receipt of the same. It is also relevant to note that, no seizure
mahazar was prepared and produced in this case. The
prosecution, to substantiate its claim that the contraband article
detected and seized from the house of the accused, heavily relied
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upon Ext.P1 search list. I have carefully perused Ext.P1 search
list and there is nothing to show that the articles mentioned therein
has produced before the court below. At the end of Ext.P1 search
list, it is shown that the same is being forwarded to the court along
with a copy of FIR and there is endorsement to the effect that the
articles being produced before the court. Going by the evidence of
PW4, it can be seen that on the basis of the communication
passed to the crime S.I., Sri.Ganesan, he came to the spot
preparing a search list. According to the prosecution, the search
was conducted by Pws.1 and 4, in the presence of other
independent witnesses and if that be so, how the version of the
prosecution can be relied and acted upon, that Ext.P1 search list
was prepared by Mr.Ganesan, the crime S.I. So the evidence in
this regard, especially the version given by PW1, is not tallying
with the evidence of PW4 and the prosecution evidence itself is
contradictory in nature regarding the seizure.
8. It is also relevant to note that, as per the evidence of
Pws.1 and 4, they weighed the entire 144 packets together,
without removing the papers, ie., M.O.2 series, used for rapping
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the substance. The above version of the prosecution witnesses is
sufficient to hold that the prosecution has no specific case
regarding the actual weight of the contraband article, allegedly
recovered from the house of the accused and the absence of the
above fact has a bearing since the punishment depends upon the
quantity involved. So the manner under which the contraband
articles are seized and weighed caused high prejudice to the
accused.
9. It is also relevant to note that, as discussed and indicated
above, in the absence of any contemporaneous document or
evidence with respect to, producing the contraband article before
the court below, it is quite unsafe to convict the accused for the
alleged possession of ganja. Even according to the prosecution,
the seizure was effected on 18.5.2005 but there is no evidence as
to when the said contraband article was produced before the
court. It is true that in Ext.P2, there is an endorsement to the
effect that, the samples received in the chemical analysts lab, is
on the basis of a letter dated 15.6.2006 from the court. Simply on
the basis of the said endorsement, it can not be held that the
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articles were in the safe custody of the court. Even according to
PW5, it is he who sent a letter to the court requesting to send the
articles for chemical analysis and the same was done only on
15.6.2006 and that too when he had occasion to see the CD file.
Thus, it is clearly brought out from the evidence and materials on
record that, the prosecution has no idea as to, who was the
authority under whom the contraband articles were kept after its
seizure on 18.5.2005. This court in the decision reported in
Sasidharan Vs. State of Kerala [2007(1) KLT 720] has held that,
the prosecution has a duty to prove that it was the sample taken
from the contra band liquor seized from the accused, which had
reached in the hands of the Chemical Examiner in a fool proof
condition. It has held that, without the link evidence of actual
sampling by the concerned clerk of the court by drawing sample
from the can and sending the same in a sealed packet to the
Chemical Examiner with a specimen seal sent separately for
tamper proof despatch, the prosecution can not be held to have
brought home the offence against the appellant. In the very same
decision it was also held that, the Magistrates have to take care
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that contemporary proceedings evidencing and drawing of sample
and sending the same to the Chemical Examiner in a tamper proof
condition are recorded in proceedings before the court. On
examination of the facts and circumstances involved in the present
case in the light of the above decision and especially when there is
no explanation from the side of the prosecution regarding the safe
custody of contraband article and the absence of evidence
regarding he endorsement of contraband article with the court, I
am unable to concur the findings arrived on by the court below and
the conviction recorded thereunder. Therefore, I have no
hesitation to hold that because of the irregularity and illegal
procedure adopted by the prosecution agency in the case of
seizure and investigation, the prosecution has miserably failed to
prove the allegation against the accused/appellant beyond
reasonable doubt and consequently the benefit will go in favour of
the accused/appellant. Therefore, the conviction recorded by the
court below is liable to be set aside and I do so.
In the result, this Criminal Appeal is allowed setting side the
judgment dated 29.11.2008 in S.C.No.34/07 of the Court of Addl.
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Sessions Judge, Fast Track Court-III, Trivandrum and the
appellant/accused is acquitted of all the charges levelled against
him. As the appellant/accused is acquitted of all the charges
levelled against him, he is entitled to get released from jail
forthwith, if he is not required in any other case.
The Crl. Appeal is allowed accordingly.
The Registry is directed to communicate the Gist of
Judgment.
V.K.MOHANAN,
Judge.
ami/