JUDGMENT
M.R. Hariharan Nair, J.
1. A novel question arises in this case and that is whether in a case where additional
evidence 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 sentence
available under the amended provisions with retrospective effect to the accused whose
cases are still under trail; but denies that benefit to the accused in cases which are
pending before the appellate court.
2. The challenge in the appeal is with regard to the conviction entered against the
appellant as accused in S.C. No. 78/2000 of the Special Court for the Trial of the
N.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 (in
default, 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 the
Sub Inspector of Vengara Police Station, who was doing patrol within his area of
jurisdiction, got a secret information that sale of brown sugar was going on in the
premises of the house of Sathyapalan (accused); that after communication of the
information to the official superior, he proceeded to the spot along with his police
party, detained the accused, who was found near the pathway leading to his house
while 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 requirements
of Section 50 of the N.D.P.S. Act, a packet containing brown sugar was found on the left
pocket of the shirt worn by the accused and that the weight of the brown sugar found
in the plastic cover which was inside the aforesaid packet (covered with paper) was
found to be 2.5. grams found acceptance by the trial court.
4. When this matter was heard earlier, noticing the fact that the occurrence
witnesses had turned hostile and that the evidence of the searching official alone was
available to prove the matter and that there was no effort made by the trial court to
examine the other occurrence witnesses, who had been cited in the case, I passed an
order on 27.9.2001 invoking the power under Section 391 of the Cr.P.C. The records were
directed to be sent back to the Special Judge with a direction that he might issue
summons to the other witnesses, who were in the patrol party of P.W. 3 at the time of
occurrence; 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. and
forward the same to this Court. It was also observed in the order that the accused
should also be questioned under Section 313 of the Cr.P.C. and afforded an opportunity to
adduce appropriate defence evidence in the light of the prospective evidence of the
prosecution that the trial court was expected to record.
5. Pursuant to the above direction, the trial court has examined P.Ws. 5 and 6
and also questioned the accused with regard to the circumstances appearing in their
evidence, 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, the
N.D.P.S. Act underwent substantial changes. While quantity of brown sugar weighing
less than 250 mgs. alone was small quantity under the N.D.P.S. Act as it stood on the
date of occurrence, the limit of small quantity has been enhanced to 5 grams under
Act 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 250
grams. The impact of the amendment is that the quantum of brown sugar seized in
the case viz., 2.5 grams was beyond the limit of small quantity as on the date of
occurrence; but is a small quantity under the law as it stands today. It is also much
less than the commercial quantity of the item as defined under the amended Act. Yet
another impact of the amendment is that the punishment for possessing small quantity
of brown sugar under Section 21 of the Act is only imprisonment for a term which may
extend to six months or fine which may extend to ten thousand rupees in the place of
rigorous imprisonment for a period which shall not be less than 10 years; but which
might extend to 20 years besides fine which shall not be less than one lakh rupees; but
which might extend to two lakhs rupees. Yet another novel feature of the said
amendment is the introduction of retrospective effect with regard to the punishment
for the offence vide Section 41 of the Amendment Act. It is provided that any person
found guilty of any offence punishable under the principal Act, as it stood immediately
before the commencement of the Amendment Act shall be liable for a punishment
which is lesser than the punishment for which he was otherwise liable on the date of
commission of such offence.
7. In the light of the aforesaid provisions, the learned counsel for the appellant
submitted that in so far as additional evidence of P.Ws. 5 and 6 were collected by the
trial 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 punishment
for possessing small quantity as defined in the Amendment Act. The learned counsel
also submitted that the case is cooked up by the prosecution without any factual basis
and that there is no reliable evidence forthcoming to prove that the accused has
committed 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 on
24.8.1999 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 the
grouped that part of the trial has taken place after the commencement of the Amendment
Act on 2.10.2001?
9. Point No. 1:- I have carefully perused the evidence of P.W. 3, who was the
S.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 about
the forwarding of Ext. P5 report with regard to the said information to the official
superior, viz., Circle Inspector of Police. Serious attack is made with regard to the
genuineness of Ext. P5 in so far as underneath the signature of the Sub Inspector, the
date ‘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 is
a 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 answer
was that he made a mistake in interchanging the figures of ‘5’ and ‘8’. The learned
counsel submits that even accepting the said version, what could have happened was
only the writing of the date ‘28.4.1999’ and that there was absolutely no possibility of
the date ‘28.5.1999’ creeping in. I find no merit in the said submission. Here is an
occurrence which took place in August, 1999 and there was absolutely no benefit
derived 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 was
received ‘today, 24.8.1999’. Obviously, the report was written on 24.8.1999 which is
the date of occurrence. There is an important aspect which supports this inference
and that is the fact that Ext. P5 copy of the report has reached the trial court on the
very next day viz., 25.8.1999 as evident from the initials of the learned Special Judge
near the seal of the Special Court. The contention that Ext. P5 is a subsequent
creation and that it was done with the intention of creating evidence has therefore to
fail. 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 of
the road where the pathway leading to the house of the accused starts and found the
accused standing near an embankment available beside the pathway. On seeing the
police jeep, the accused tried to slip away. He was detained and informed that he was
suspected to be in possession of brown sugar; that his body was proposed to be
searched; that he was entitled to have the presence of a Gazetted Officer or a Magistrate
to witness such search and also asked about his option in that regard. The accused
gave a negative reply which was recorded at the spot and got signed by the accused
and other witnesses. Ext. P1 contains the details of the questions put to the accused
and his answer. A perusal of Ext. P1 shows that before putting the question with
regard to the option of the accused, the accused was also made aware of his right
under law for having the search conducted in the presence of a Gazetted Officer or a
Magistrate. I may immediately add that Ext. P1 is also a record that has reached the
trial court on the very next day of occurrence. Ext. P1 provides corroboration to the
evidence of P.W. 3 with regard to the details of the questions put as a prelude to the
search conducted by him.
12. It was further deposed by P.W. 3 that the body search of the accused revealed
the existence of a paper packet at the left pocket of the shirt worn by him. When
opened, it revealed a plastic cover within which brown sugar was found besides two
cylindrical metal tubes obviously an apparatus for facilitating inhalation of the brown
sugar. P.W. 3 has stated that the brown sugar so seized was found to be 2.5 grams in
weight when weighed at the spot. He also deposed about the other procedural
formalities done by him including preparation of Ext. P2 seizure mahazar which also
reached 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 the
Case Diary statements of P.W. 1 and Ext. P4 series are similar contradictions in the
Case Diary statements of P.W. 2. The said contradictions show that the witnesses
had switched over allegiance after the date of occurrence and were not speaking the
truth before Court. It is significant to note here that even these witnesses have admitted
their signatures in all the contemporaneous documents including the seizure mahazar
and the paper with which the seized object was covered and sealed at the spot. It was
on the basis of these items of evidence that the trial court originally entered the
conviction. However, it was seriously contended before this Court during hearing on
27.9.2001 that it was totally unsafe for the trial court to have relied upon the version of
the searching official alone and that there was no proper corroboration available other
than in the document. Reliance was also placed on the decision in Bhola Ram
Kushwaha v. State of M.P. (2001 (1) SCC 35) in support of the contention that in
similar 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 circumstances
warranted collection of further evidence under Section 391(2) of the Cr.P.C. and directed
such evidence to be collected.
15. The evidence of P.Ws. 5 and 6 recorded pursuant to the above order afford
full corroboration to the evidence of P.W. 3. The fact is that even without the evidence
of P.Ws. 5 and 6 this Court would have been justified in entering a conviction. The
additional evidence was intended only to get further assurance with regard to the
culpability or otherwise of the accused.
16. P.W. 5 was a Police Constable who had accompanied P.W. 3 and he has
deposed about the entire incident. So did P.W. 6, who was another Police Constable
in the party.
17. The learned counsel for the appellant submitted that it is not recorded that
any money or other object was available with the accused at the time when the seizure
was effected and that the evidence of D.W. 1 shows that at the time when the accused
was 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 the
details of the objects which had no direct relationship with the crime in question in the
seizure mahazar has effected the veracity of the prosecution case. I conclude that
there was sufficient justification for the trial court to find that the accused has committed
the 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 the
fact Ext. P2 is a contemporaneous document reporting the information under Section 42 of
the N.D.P.S. Act. Even assuming that there is no concrete evidence to show that the
original of Ext. P5 had reached the official superior viz., P.W. 4 still the accused
cannot be found entitled to get an acquittal under Section 42 of the N.D.P.S. Act. The
reason is that the information that P.W. 3 got with regard to the accused was not that
he was available in a building, conveyance or enclosed place, but that he was available
only in the premises of his house. The accused was found beside the pathway leading
to his house and it was not an enclosed place. The decision in Abdul Azeez v. State
of Kerala (2001 (1) KLT 805) is precedent for the legal position that Section 42 would be
attracted only to cases where the information relates to the availability of the contraband
in a building, conveyance or enclosed place. The information in the present case
being not to the said effect, there was no question of compliance with Section 42 of the
N.D.P.S. Act at all.
19. While discussing Point No. 1, I have also found that Ext. P1 is a
contemporaneous document and that the contents thereof amply prove the fact that
the 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 admitted
their signatures not only in Ext. P1 but also in Ext. P2 mahazar. There is also oral
evidence of P.W. 3 which is corroborated by P.W. 5 and 6 on this aspect. In these
circumstances, 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 2.10.2001
reads 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 the
Courts or under investigation at the commencement of this Act shall be disposed of in
accordance 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 stood
immediately before such commencement, shall be liable for a punishment which is lesser than
the 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 of
any person shall be punishable as an offence which would not have been so punishable if this
Act has not come into force.”
It is a fact that the small quantity of brown sugar as on the date of occurrence
was only 250 mg.; but it stands enhanced to 5 grams under the Amendment Act. The
consequence thereof is that the quantum seized in the present case would have been
a 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 his
submission that the commercial quantity of brown sugar is 250 grams and for that
after the amendment the minimum punishment of rigorous imprisonment for ten years
and fine of one lakh rupees could be given in the case of brown sugar only for possession
of quantum of not less than 250 grams. In Section 41 aforementioned it is specified in
categoric terms that the amended provision would be applicable only to all cases
pending trial as on 2.10.2001 and that it shall not apply to cases pending in appeal. The
crucial question that arises therefore is whether as on 2.10.2001 the case was pending
before the trial court or before the appellate court. During hearing the learned counsel
for the appellant drew my attention to Section 391(4) of the Cr.P.C. which provides that the
taking of evidence under Section 391 shall be subject to the provisions of Chapter XXIII as
if it were an enquiry. Chapter XXIII relates to collection of evidence in inquiries and
trials. The argument of the learned counsel for the appellant therefore is that the
collection of evidence made by the trial court on 18.12.2001 pursuant to the order of
this Court dated 27.9.2001 is actually an admission of evidence as though in an enquiry
under Chapter XXIII in which case it has to be taken that part of the trial has taken
place on 18.12.2001 and therefore the accused is entitled to the benefit of Section 41
aforementioned.
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 reads
as 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 thinks
additional evidence to be necessary, shall record its reasons and may either take such
evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court
is 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, it
or he shall certify such evidence to the Appellate Court, and such court shall
thereupon proceed to dispose of the appeal.
(3) The accused or his pleader shall have the right to be present when the additional
evidence is taken.
(4) The taking of evidence under this Section shall be subject to the provisions of Chapter
XXIII, as if it were an inquiry.”
23. This is a special provision to be rarely invoked by the appellate court. It
forms an exception to the general rule that an appeal must be decided on the evidence
which was before the trial court. Its manifest object is the maintenance of interests of
justice. Its invocation may be for the prevention of a guilty man’s escape through
carelessness or ignorance on the part of the trial court in holding its proceedings as
also for vindication of an innocent person wrongly accused where the trial court,
through some carelessness or ignorance, has omitted to record the evidence necessary
for elucidation of the truth. The power to order such evidence is a discretionary
power. For invoking it, it is not necessary that it should be impossible to pronounce
judgment without additional evidence. It is a fact that if the additional evidence is
unfavourable to the accused, it would result in difficulty for the accused; but there is
nothing in the section which provides that the additional evidence can be taken only if
it favours the defence and not if it favours the prosecution.
24. The only question to be looked into by the appellate court before applying the
section is whether it satisfies that the additional evidence is necessary in the interests
of justice. Such evidence may be recorded by the appellate court, if it is so inclined, or
it can be collected through the trial court. In either case the purpose is not to fill up the
lacuna in the available evidence; but to ensure that there would be no failure of justice
for want of proper evidence. If the process of admitting further evidence is
comparatively simple, the appellate court may collect the evidence itself. On the
other hand, if it is likely to be long and complicated, that is to say, requiring the
examination and cross-examination of several witnesses on summons and marking of
exhibits, it is often desirable to get it through the trial court. In either case the collection
of evidence is by the appellate court and during the pendency of the appeal and not
after its disposal. It cannot therefore be said that at the time when the trial court
collected additional evidence the appeal had been disposed of for the purpose of Section 41
aforementioned.
25. No re-trial was ordered in this case. It was keeping the appeal pending
before 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 be
applicable to cases pending in appeal, there is no question of the present accused
getting the benefit of the amended provisions in the Act. The case in hand has to be
decided in accordance with law as applicable on 24.8.1999. Viewed from this
perspective, the quantum of brown sugar seized in this case cannot be taken as small
quantity. Nor can be punishment prescribed for possession of a quantity less than the
commercial 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 conviction
entered against the appellant under Section 21 of the NDPS Act has to stand. The sentence
imposed is only the minimum prescribed by law as it stood on the date of occurrence
viz., 24.8.1999.
In the circumstances, the appeal is found to be without merit and it is dismissed.