IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1132 of 2002()
1. ABOOBACKER, S/O.POKKAKKILATHVEETTIL,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.C.A.CHACKO
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice A.K.BASHEER
Dated :14/02/2008
O R D E R
A.K.BASHEER, J.
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Crl.A.No.1132 OF 2002
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Dated this the 14th day of February 2008
JUDGMENT
Appellant is the accused in a prosecution under Section 20
(b)(i) of Narcotic Drugs and Psychotropic Substances Act . The
learned Sessions Judge, Thrissur before whom the appellant was
tried had found him guilty of the offence alleged against him
and he was accordingly convicted and sentenced to undergo
Rigorous Imprisonment for 18 months and also to pay a fine of
Rs.15,000/- and in default of payment of fine to suffer Simple
Imprisonment for 6 months.
2. The prosecution case in brief was that the accused was
found carrying 1.530 kg. of ganja in a plastic sack at about 4.45
p.m. on February 16, 2001. PW.3 who was working as Sub
Inspector of Police in Kunnamkulam Police Station stated that
he was on patrol duty along with Pw.4 and others through
Vadakkancherry-Pattambi road. When the patrol party reached
infront of Victory Offset Press the accused was found walking
along that road towards south with the sack in his hand
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containing the contraband and some beedi leaves, labels etc.
When the accused saw the patrol party, he appeared perplexed
and frightened and turned his face away. This aroused
suspicion. Therefore Pw.3 asked the driver of the jeep to stop.
The accused was questioned and he admitted that the sack
contained ganja. Pw.4, the Constable who accompanied Pw.3
was deputed to procure a weighing scale. He came back with
Sajan, a goldsmith, who carried a scale with him. The ganja
which was found in the sack was taken out and weighed in the
presence of the constables and two independent witnesses
(Pws.1 and 2) . Three bundles of 5 grams each were taken as
sample. The remaining contraband and the sample packets were
properly packed and sealed, and signatures of the accused and
witnesses were obtained on them. The accused was arrested
and produced before the Court. Thereafter PW.5 conducted
investigation and charge sheet was laid thereafter.
3. On committal, the accused was tried before the
Sessions Court, Thrissur. The prosecution examined Pws.1 to 5
and marked Exts.P1 to P9 and Mos.1 to 6. Ext.D1 to D4 were
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marked on the side of the defence. The learned Sessions Judge
found that the prosecution had satisfactorily established the
charge against the accused. Accordingly he was convicted and
sentenced as mentioned earlier.
4. While impugning the order of conviction and sentence
Mr.Shafeek, learned counsel for the appellant, contends that
the court below had grossly erred in overlooking the fatal and
material discrepancies in the prosecution case. He points out
that the time and place of occurrence as spoken to by Pw.3 and
4 were totally at variance. There was no satisfactory explanation
from the side of the prosecution about the discrepancies noticed
by the court in the samples packets. There was also no
explanation for the delay in forwarding the samples to the
Forensic Science Laboratory.
5. Pws.1 and 2 who were stated to be independent
witnesses did not support the prosecution case. They stated
before the Court that they had not seen the alleged
apprehension of the appellant with the contraband in his
possession. However these two witnesses admitted their
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signature in Ext.P2 seizure mahazar.
6. Pw.3 the Sub Inspector and Pw.4 the Constable who
accompanied him in the patrol party, are material witnesses as
far as the prosecution is concerned. Pw.3 stated that he, along
with other members of the patrol party, was proceeding through
Vadakkancherry road towards Pattambi road. According to this
witness Pattambi road runs north-south. The party had come
along Kozhikode-Vadakkancherry Road and entered the
Pattambi road. When the patrol party reached in front of
Victory Offset Press on the Pattambi road, the accused was
found in front of the Press with the sack. But Pw.4 stated that
the accused was found while the patrol party was travelling
along Vadakkanchery road. This witness said that the party had
come from Kunnamkulam-Pattambi road and entered
Vadakkancherry road. But Victory Press is admittedly situated
on the Pattambi road. Going by the version of Pw.4 the patrol
party was proceeding from South to North, whereas Pw.3
stated that the party had been coming from North to South. It
had come on record that Vadakkancherry road runs along the
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northern side of Pattambi road. Further, according to Pw.3, the
accused was apprehended with the contraband at 4.45 pm,
whereas Pw.3 asserted that the detention and recovery was at
4.15 p.m. Pw.4 stated that he had arrested the accused
immediately when it was revealed by the accused that he had
been carrying the contraband in the sack, whereas PW.3 stated
that arrest was made after the entire process of seizure was
effected.
7. It has come out in evidence that the investigating
officer, Circle Inspector of Police, Kunnamkulam had produced
the sample packets and the remaining contraband before the
court on the next day after the alleged recovery. It is seen from
Ext.P7, property list that the samples were returned to the
investigating officer on February 17, 2001 since certain defects
were noticed. For instance, it was noticed that ‘gross weight,
net weight and station number’ had not been indicated in
separate slips on the packets. Thereafter, the investigating
agency had cured the defect and reproduced the samples and
the contraband before the court on February 19, 2001.
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8. It is contended by the learned counsel that the fact that
gross weight and net weight of the contraband and the samples
had not been indicated on the containers, will go a long way to
show that seizure and sampling as alleged had never taken
place. In this context, learned counsel pointed out that one
Sajan was allegedly called to the scene of occurrence with a
scale for the purpose of weighing the sample and the
contraband. Curiously, Sajan was not examined in the court.
Even though it was alleged that he had weighed the contraband
and the samples. Learned counsel contends that going by the
version given by PW3 and 4, they had indicated the weight of
the contents of the packets at the scene of occurrence itself.
But the fact that such details were absent on the packets when
they were produced before the court will cut at the root of the
prosecution case. Non examination of Sajan, according to the
learned counsel, is also totally fatal to the prosecution case. It is
further pointed out by the learned counsel that the sample is
seen to have been forwarded to the laboratory only on May 26,
2001. No evidence was adduced by the prosecution to show
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that the samples were kept in proper custody during the
intervening period. No witness was examined in this connection
to prove that there was no chance for tampering.
9. In this context, it may also be worthy to mention that
the detecting officer had a case that he had searched the
business premises of the accused at Erumappetty within the
limits of the said Police Station. According to the officer, search
was conducted pursuant to the information furnished by the
accused that some more quantity of ganja had been kept in his
shop. But the officer could not recover any ganja from the shop.
Some ‘bidi’ labels allegedly forged by the accused in the name of
another manufacturer had been recovered. The officer stated
that the labels and other materials seized from the shop of the
appellant had been handed over to the station house officer of
Erumappetty. Reference has been made to the above only to
highlight the fact that the appellant has a specific case that the
present case had been foisted against him for the reason that no
recovery could be effected from his shop by PW3. Anyhow, I do
not propose to deal with the above contention any further.
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Having perused the entire materials available on record, I
am of the view that the appellant is entitled to get the benefit of
doubt in view of the contradictions in the versions given by the
two material witnesses namely PW3 and 4. Apparently these
witnesses had given different versions with regard to the scene
of occurrence and the time of seizure. The evidence on seizure,
sampling, etc. is not entirely satisfactory. Therefore, the order
of conviction and sentence passed by the court below is set
aside. The appellant is acquitted. The bail bond executed by
him shall be cancelled. Appeal is allowed.
(A.K.BASHEER, JUDGE)
jes
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A.K.BASHEER, J.
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Crl.A.No.1132 OF 2002
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JUDGMENT
Dated 14thFeb 2008