IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1075 of 2009()
1. V.T.MOHAMMED S/O. KUNJU MOHAMMED,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.BABY THOMAS
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :24/08/2009
O R D E R
THOMAS P JOSEPH, J
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Crl.R.P.No.1075 of 2009
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Dated this 24th day of August 2009
ORDER
Learned counsel for revision petitioner submits that revision
petitioner, subsequent filing of the revision expired and that inspite of
intimation given, none of the legal representatives of the deceased has
come forward to continue the revision. However, since this is a
revision which is already taken on file and since sentence involves
imprisonment and fine, question of abatement does not arise.
Revision petition has to be decided on merit. I heard counsel for
petitioner and Public Prosecutor.
2. Accused No.2 in C.C.No.204 of 2006 of the court of learned
Judicial First Class, Erattupetta is the deceased petitioner. He, along
with another, faced trial in that court for offence punishable under
section 20(b)(ii)(A) of the Narcotic Drugs and Psycotrophic Substance
Act (for short, “the Act”) on the allegation that he was found in
possession of ganja described as a small quantity. Learned magistrate
found petitioner guilty, convicted and sentenced him to undergo
imprisonment and payment of fine. That conviction and sentence was
confirmed by the appellate court. Learned counsel states that the
mandatory requirements of section 42 (1) and (2) and section 50 of the
Act have not been complied with and hence conviction and sentence of
petitioner cannot stand.
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3. PWs.5 and 8, official witnesses, gave evidence regarding
alleged detection. According to them on PW8 getting information
about sale of ganja arrested accused No.1 in crime No.68 of 2005 of
Pala Police station. When accused No.1 was questioned, he gave
information regarding the involvement of petitioner in the alleged
incident. Accordingly, as led by accused No.1 and on the information
given by him PW8 arrested petitioner on 02-02-2005 at about 6.45a.m
and seized 470 gms of ganja from his possession. Ext.P2 is the
mahazar for the seizure. Further case of PWs.5 and 8 is that on
questioning petitioner, he gave information that the remaining portion
of gunga is kept in a building, and if taken there he will produce the
same. Accordingly as led by petitioner, PW8 and party reached that
place where petitioner produced the remaining portion of ganja which
was taken to custody as per Ext.P1 mahazar. Material objects were
produced in court and the sample were sent for chemical examination.
Ext.P10 is the report of chemical examination which revealed that the
contraband allegedly seized from the possession of petitioner is ganja.
Based on the above evidence courts below found in favour of
prosecution.
4. So far as seizure as per Ext.P2 is concerned, it is seen from
Ext.P2 as well as evidence of PW8 that there is no compliance of
section 50 of the Act. It is not put to petitioner that he has right to
search in the presence of gazetted officer or magistrate. Thus, there is
Crl.R.P.No.1075 of 2009 3
total non compliance of section 50 of the Act so far as alleged seizure
from the person of petitioner is concerned. Therefore, evidence
collected in violation of section 50 of the Act cannot be taken into
account.
5. So far as seizure as per Ext.P1 is concerned, it is seen that
the alleged seizure is from a building as allegedly produced by the
petitioner. Evidence of PW8 shows that he got information about the
storage of ganja in that building from petitioner when the latter was
questioned. At that stage he was bound to comply with section 42(1)
of the Act in that he ought to have reduced that information to writing.
Under section 42(2) of the Act after the seizure was made PW8 was
obliged to prepare a detailed report regarding incident and both were
to be sent to his immediate official superior. Going through the
evidence of PW8 and Ext.P9 it is seen that report under section 42 (2)
of the act was given not to his immediate official superior, but, to the
Station House Officer which is not in compliance of section 42(2) of the
Act. The evidence collected in violation of section 42(2) of the Act also
cannot be taken into account. Excluding the seizure as per Exts.P1 and
P2 there is no other evidence to show that petitioner was in possession
of the contraband at the relevant time. Therefore conviction and
sentence of petitioner cannot be sustained and are liable to be set
aside. Revision petition therefore succeeds. Conviction and
sentence of petitioner are set aside and he is acquitted of the charges
Crl.R.P.No.1075 of 2009 4
against him.
Sbna/ THOMAS P. JOSEPH, JUDGE