IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 2088 of 2009()
1. ANDICHAMI @ ANDIAPPAN, S/O. OCHATHEVAR
... Petitioner
Vs
1. THE SUB INSPECTOR OF POLICE,
... Respondent
2. STATE OF KERALA REP. BY PUBLIC
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.K.MOHANAN
Dated :23/03/2010
O R D E R
V.K.MOHANAN, J.
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Crl. APPEAL No.2088 of 2009
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Dated this the 23rd day of March, 2010.
J U D G M E N T
This appeal is directed, against the judgment dated 29.9.09
in Session Case No.38/08 of the Court of the Special Judge
(NDPS Act cases), Vadakara, at the instance of the sole
accused therein, challenging his conviction and sentence u/s.20
(b)(II)(C) of the Narcotic Drugs and Psychotropic Substances
Act, 1985 (hereinafter referred to for short as ‘the NDPS Act’
only).
2. The prosecution case is that on 15.6.2008 at about 4.55
p.m., the accused was found in possession of 2.100 kg of ganja
in front of KSRTC bus stop at Perinthalmanna and subsequently
it came to the notice of the Detecting Officer that, he had also
possessed another 30 kg. of ganja and thus seized altogether 32
kg of ganja from his possession and thus he had committed the
offence punishable u/s.20(b)(II)(C) of the `NDPS Act’.
3. On the basis of the said allegation, Crime No.474/08 was
registered in the Perinthalmanna Police Station. After completing
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the investigation, a report was filed in the court below on
11.12.2008. After hearing the prosecution as well as the
defence, a formal charge was framed against the accused for the
above offence and the same was read over and explained to the
accused, who denied the charge and pleaded not guilty, which
resulted in the further trial, during which the prosecution adduced
its evidence consists of the oral testimony of Pws.1 to 13 and the
documentary evidence such as Exts.P1 to P18 and material
objects namely M.Os 1 to 10, which were produced and identified
during the trial. No evidence, either oral or documentary, was
produced from the side of the accused. On the basis of the rival
pleadings and the materials on record, the Trial Court formulated
four points for its consideration. The evidence and the
incriminating circumstances, which emerged during the evidence
of prosecution, were put to the accused u/s.313 of Cr.P.C. and
he denied the same and maintained the stand of total denial.
Based upon the available materials and evidence on record, the
Trial Court found that the accused is guilty of the charge levelled
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against him and accordingly he is convicted u/s.20(b)(II)(C) of
the NDPS Act and consequently he is sentenced to undergo
rigorous imprisonment for 10 years and to pay a fine of Rs.1 lakh
and in default he is directed to undergo rigorous imprisonment
for a further period of 6 months . Thus on the basis of the above
impugned verdict, the accused is undergoing the sentence
imposed against him and he is in custody right from the date of
his arrest ie., on 15.6.2008. It is the above conviction and
sentence challenged in this appeal.
4. I have heard Shri T.G.Rajendran, the learned counsel
appearing for the appellant as well as the learned Public
Prosecutor appearing for the State.
5. According to the prosecution, PW12 the Circle Inspector
of Police of Perinthalmanna Police Station, who is the Detecting
Officer, received an information that one person wearing `black
kalli mundu’ and `black kalli shirt’, who is about at the age of 50
years, from Attappadi, found in possession of ganja in a big
shopper in front of the KSRTC bus stand at Perinthalmanna and
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thus after preparing a report u/s.42 and sending the same to his
immediate superior officer, the Dy.S.P., he himself and the
parties proceeded to the spot and on locating the accused, he
was asked, whether he required the presence of any of the
officers as contemplated u/s.50 of the NDPS Act and as he
answered positively, pursuant to which, a written request was
sent to PW2, who is the Tahasildar, Perinthalmanna and in the
presence of PW2, PW12 conducted a search and recovered
2.100 kg of ganja as per Ext.P1 seizure mahasar, which was
kept in a big shopper. The ganja thus seized is marked as M.O.1.
6. It is the further case of the prosecution that, after the
seizure of ganja from the possession of the accused, he was
arrested and when questioned under custody, he had revealed
that he had kept about 30 kgs. of ganja in his residential house
bearing No.S.P.3/307, and the said house was searched and
thus seized another 30 kgs. of ganja as per Ext.P5 seizure
mahazar. PW1, the Head Constable attached to the
Perinthalmanna Police Station, was one of the police party who
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accompanied PW12, the Detecting Officer and he had deposed
in terms of the prosecution case and through him M.Os 1 to 10
were identified. The Tahasildar, Perinthalmanna, who was
examined as PW2 also deposed in terms of the prosecution case
and Ext.P1 was identified and the signatures that contained on
the labels pasted on M.Os 1 and 10 were also identified. PW3 is
the attestor to Ext.P2 scene mahazar, with respect to the first
seizure. PW4 is also another Head Constable, who was one
among the raiding party. PW5 is a person cited by the
prosecution to prove that the weighing machine, which was used
for weighing the materials, at the time of the first seizure, was
taken from his bakery wherein he was working as the Food
Supervisor. PW6 is another attestor to Ext.P1 seizure mahazar.
PW7, is the Village Officer who prepared Ext.P3 sketch plan with
respect to the first seizure. PW8 is another Village Officer who
prepared Ext.P4 sketch plan related to the second seizure
effected from the residential building of the accused, mentioned
earlier. Pws.9 and 10 are the attestors to Ext.P5 seizure
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mahazar, with respect to the 2nd recovery effected from the
house mentioned above. Ext.P6 is the scene mahazar related to
the second seizure on which PW11 is the attestor. When PW12,
the C.I. of Police was examined, the prosecution has proved
Exts.P7 to P18 documents through him. Thus Ext.P7 is the
report prepared and sent by PW12 to his immediate superior
officer ie., Dy.S.P., u/s.42 of NDPS Act. Exts.P8 and P9 are the
arrest memo and inspection memo respectively. Ext.P10 is the
FIR, suo motu registered by PW12. Ext.P11 is the confession
statement of the accused recorded by PW12. Exts.P12 and P14
are property list and forwarding note respectively. Ext.P13 is the
report prepared and sent by PW12 u/s.57 of NDPS Act. Ext.P15
is a report, filed by PW12 to alter the section that contained in
Ext.P10 FIR. Ext.P16 is the chemical analysis report. Exts.P17
and P18 are the ownership certificates with respect to the shed
attached and maintained therein to the house mentioned and the
ownership of the building from where the second seizure was
effected and those documents were proved through PW13, the
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Secretary of Sholayur Grama Panchayath.
7. Thus on the basis of the above materials, it is evident
that at the first instance, ganja was found in the big shopper and
on weighing, it was found that it was having the weight of 2kg
and by Ext.P1 seizure mahazar, two samples were drawn, each
containing 50 gms and the same were properly packed, sealed
and the label is affixed containing the signatures of witnesses
including Pws.2 and 12 and the accused. The remaining 1.90
kg. of ganja were separately packed in the same way. As per the
proceedings, after the seizure of the ganja from the big shopper,
PW12 conducted search of the purse of the accused and thus
recovered from the waist of the accused, 100 gms of ganja, from
which also the sample was taken and separately labelled. It is
thereafter, the accused was arrested.
8. The accused and the contraband article, which seized
from the possession of the accused, were brought to the police
station, whereupon Ext.P10 FIR was registered. According to
PW12, during the questioning of accused under custody, he
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revealed that the balance quantity of ganja was kept at his
house, on the basis of which PW12 and party proceeded to the
house of the accused, ie., Kulukkil House, at Sholayur,
Attappadi, Aanakkatti route. It is the specific case of the
prosecution, as revealed from the deposition of PW1 that, in front
of the house of the accused, there is a tea shop and the accused
took out the key of the house, which was kept beneath one of the
benches in the above mentioned tea shop and using that key,
the accused opened the house and he took another bunch of
keys from the drawer of a table, kept in the verandah of the
house and thereafter he opened other rooms of the house.
According to PW1, in the bed room 3 sacks were found under
the cot, out of which, 2 were plastic sacks and one was jute sack.
According to the prosecution, PW12 opened the 3 sacks which
contained ganja. The said ganja was also seized wide separate
mahazar after drawing separate samples from each of the sacks.
Thereafter the accused was produced before the Court with the
remand report and the contraband articles and the materials
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were also produced before the Court as per Ext.P12 property list.
As per Ext.P14 forwarding note, a request was made to send the
samples for chemical analysis, on the basis of which Ext.P15
chemical analysis report was obtained. It is on the basis of the
above materials and evidence, the trial court found that the
accused is guilty of the charges levelled against them.
9. The learned counsel Mr.T.G.Rajendran appearing for
the appellant, strenuously submitted that the entire proceedings
adopted by the prosecution for the seizure of the contraband
article from the alleged possession of the accused is contrary to
the procedure prescribed by the NDPS Act. The learned counsel
for the appellant is specific in his submission that, the first
seizure claimed by the prosecution is conducted in gross
violation of the mandatory provisions contained in Section 50 of
the NDPS Act and therefore the conviction entered into by the
trial court with respect to the first seizure is liable to be set aside.
The counsel also submitted that, the second seizure, is also
diametrically opposed to the provisions contained in the special
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enactment namely, the NDPS Act. The learned counsel pointed
out that, according to the prosecution, the disclosure about 30 kg
of ganja was made by the accused, while he was in custody,
pursuant to the seizure and arrest, that effected on 15.6.2008.
By inviting my attention to Section 42 of NDPS Act, the learned
counsel submitted that even if the entire prosecution case is
admitted as true, the disclosure which allegedly confessed by the
accused while he was under custody, is a new information,
therefore the investigating agency has to proceed under the
mandatory provisions contained in Section 42 of NDPS Act.
According to the learned counsel, in the present case no such
step was taken by the prosecution and therefore the conviction
and sentence of the accused, connected with the second
seizure is liable to be set aside.
10. On the other hand, the learned Public Prosecutor
submitted that the first seizure was effected by fully complying
with the procedure, prescribed in Section 50 of NDPS Act and as
evidenced by the deposition of PW2 and Ext.P1 seizure
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mahazar, it is sufficient to show that there is no procedural defect
with respect to the first seizure. It is also the submission of the
learned Public Prosecutor that the second seizure is effected, as
a continuation of the first search and seizure and therefore the
trial court is absolutely right in finding the guilt of the accused for
the possession of the entire quantity of ganja including that of the
2nd seizure and therefore no interference is warranted.
11. I have carefully considered the arguments advanced by
both the counsel for the appellant as well as the learned Public
Prosecutor and also perused all the materials on record and also
the evidence.
12. The first contention raised by the learned counsel for
the appellant is that PW12, the C.I. of police, Perinthalmanna
Police Station, who is the Detecting Officer, himself is a Gazetted
Officer, and if the prosecution case is true, there was no
necessity for him to procure the presence and permission of
PW2, another the Gazetted Officer. It is his further contention
that, inspite of the above fact, though PW12 brought PW2 to the
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spot, the search was not conducted in accordance with the
procedure contained in S.50 of the NDPS Act. According to him,
in the present case, the search was conducted in gross violation
of the mandate contained in sub section 3 of S.50 of the NDPS
Act. In order to substantiate the above submission, the learned
counsel took me through Ext.P1 seizure mahazar and the
depositions of PWs.2 and 12. It is submitted that nowhere in the
deposition of PW2 or PW12 had stated that a direction or order
was issued by PW2 to PW12 permitting him for conducting the
search. According to the learned counsel, only after receiving an
order from PW2, to conduct the search of the accused, PW12
can proceed with further. I am unable to accept the above
contention. Section 50(3) reads as follows,
” the Gazetted Officer or the Magistrate before whom
any such person is brought shall, if he has no
reasonable ground for search, forthwith discharge
the person but otherwise shall direct that search be
made.”
Crl. APPEAL No.2088 of 2009
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In the present case, it is pertinent to note that, PW12 and party
went to the first spot in pursuance of a secret information
received by him. Before proceeding to the spot, PW12 send
Ext.P7 report to his immediate superior officer namely, the
Dy.S.P., u/s.42 of NDPS Act. It is also relevant to note that, in
the case of 2.1 kg of ganja, the seizure was effected from the big
shopper which was holding by the accused and the same was
proved through the evidence of prosecution, especially, the oral
testimony of PW2. According to me, in the given facts and
circumstances of the case, being a Gazetted Officer, PW2 can
discharge the accused in terms of the condition contained in
S.50(3), if he was satisfied that there was no reasonable ground
for search. But, he did not discharge the person on his
satisfaction that there is scope for further search, since before
the search of the person of the accused himself, 2.1 kg of ganja
had already been detected from M.O.2 big shopper, which was
held by the accused at the relevant point of time. Sub-section (3)
of S.50 of NDPS Act does not mandate the Gazetted Officer or
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the Magistrate to, pass an order either in writing or in oral to
proceed with the search. The entire provisions contained in S.50
incorporated with a view to ensure that, the search and seizure
were conducted in a proper way and the accused shall not be
prejudiced in any manner. In the light of the above discussion
and in the light of the materials and evidence on record, which I
referred above, I am of the view that the contention raised by the
counsel for the appellant with respect to the first seizure, does
not appear to be a sound one and accordingly the same is
rejected. No other grounds or contentions are raised with
respect to the first seizure.
13. In the result, I approve the finding arrived on by the
court below at point no.1 and accordingly, it is confirmed that the
accused was found in possession of 2.100 kg. of ganja in front of
KSRTC bus stand at Perinthalmanna on 15.6.2008 at about 4.55
p.m.
14. The second point raised by the learned counsel is
mainly with respect to the second seizure, which according to
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me, assumes importance in the light of the facts and
circumstances involved in the present case. It is beyond dispute
that the second seizure as per Ext.P5 was effected, on the basis
of Ext.P11 confession statement of the accused, which is
allegedly made by him while he was in custody due to the arrest
in pursuance of the first seizure, that effected as per Ext.P1
seizure mahazar. According to the learned counsel, the
statement itself, that contained in Ext.P11 is inadmissible u/s.27
of the Indian Evidence Act. The learned counsel pointed out
that, even according to the prosecution the first seizure was
effected, based upon an information received, which was
recorded u/s.42 of the NDPS Act. If that be so, the same
procedure has to be adopted. If the so called confession
statement is true, the prosecution agency wanted to act upon
such a disclosure statement, since it was acting under the
provisions of the NDPS Act. According to the learned counsel,
the alleged subsequent seizure, if the same is admitted as true,
is the subject matter of another prosecution and the clubbing of
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the second seizure with the first seizure has very much
prejudiced the accused in setting up his defence in a proper way.
It is also the contention of the learned counsel that, at the time of
Section 313 questioning of the accused, no question was put to
him with respect to the second seizure and under that count also,
the accused was prejudiced. Whereas the learned Public
Prosecutor submitted that, the second seizure is in pursuance of
the first seizure, in which the accused is involved and repetition
of the procedure u/s.42 of NDPS Act is not at all required.
15. The contention so raised, as I pointed out earlier,
involves a vital question, which was not raised during the trial, as
fairly conceded by the learned counsel for the appellant and as
such there was no decision of the trial court on this issue. In this
juncture, it is pertinent to note that though I have approved the
finding of the trial court with respect to the first point regarding
the seizure of 2.100 kg. of ganja, the sentence imposed under
that count, which is contemplated by the NDPS Act, is only a
maximum sentence of 10 years. But in the present case, the
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total sentence awarded against the accused is 10 years of
rigorous imprisonment. The said sentence was imposed on the
finding that, the accused involved in contravention of the
provisions of the Act whereby, he was found in possession of
altogether 32 kg. of ganja, which will exceed the commercial
quantity. If the prosecution is not able to substantiate the
allegation by legally protecting the second seizure, in the light of
the legal questions that raised by the counsel for the appellant,
definitely the quantum of sentence has to be reconsidered by
invoking appropriate provision. Therefore, the failure on the part
of the defence, in raising the question before the trial court,
whereby the trial court had no occasion to consider the question,
might have a bearing on the issue of sentence and fate of the
trial. Therefore, the question raised by the trial court under point
No.2 and the finding thereon require reconsideration and the
finding arrived on by the trial court under that point is liable to be
set aside. As the question now raised by the learned counsel,
has not been raised in the trial court and the trial court has no
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opportunity to consider such a question, it is only proper to
remand back the case for the proper consideration and fresh
decision of the trial court.
16. In the light of the above discussions and the materials
referred above, I am of the view that while maintaining the
finding arrived on by the Court below under point no.1, the
finding under point no.2 is liable to be set aside and the question
shall be reconsidered by the trial court afreshly. Going by S.20
and various provisions contained in the NDPS Act, it can be seen
that the said section contemplates punishment for contravention
in relation to cannabis plant and cannabis. If the allegations are
proved, certainly the court has to enter into a finding as
contemplated by S.20 and on such a finding of conviction,
adequate sentence has to be imposed depends upon the
quantity involved.
17. In the present case as pointed out earlier, the trial court
had imposed the present punishment on the finding that, the
accused was found in possession of 32 kg of ganja, which is a
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commercial quantity. Ofcourse, the trial court came into such a
conclusion based upon the two seizure effected in the present
case. With respect to the first seizure, this court as per the
discussion made above, approved the finding of the court below.
With respect to the second seizure, as I found earlier, the matter
deserves to be remanded to the trial court for a fresh
consideration and finding of the court below, regarding the
second seizure.
18. The learned counsel relying upon the decision of this
Court in Mohanan Vs. State of Kerala [2007(4) KLT 408],
submitted that the investigation as well as the evidence with
respect to the second seizure is liable to be rejected. It is also
pointed out that, the accused is prejudiced because of the
framing up of the consolidated charge based upon the two
seizures. First of all, I am of the view that, the said decision is
not applicable in the present case for various reasons. The facts
involved in the case cited by the learned counsel are with respect
to the prosecution, under the Provisions of the Abkari Act and the
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subsequent seizure was effected from a second person though
based upon an information furnished by the accused. In the
present case, the allegation is under the provisions of the NDPS
Act, where specific provisions are made with respect to the
sentence based upon the quantity involved and the second
seizure, was effected from the residential house of the appellant
himself and the prosecution has no case that the contraband
article, which is allegedly seized from the house of the appellant
is kept by any other person. In the present case, the charge
against the appellant is that he contravened the provisions of
NDPS Act, for having possession of 32 kgs. of ganja. As pointed
out earlier, the subsequent seizure on the basis of the
confession statement made by the appellant is a matter to be
reconsidered by the trial court. The learned Public Prosecutor
relying upon the decision in Sajan Abraham Vs. State of Kerala
[2001 (4) Crl.Law Journal 4002], submitted that the stringent
nature of the provisions contained in the NDPS Act shall not be
construed, so as to help the accused to escape from the clutches
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of law. As I pointed out earlier, the question raised in this appeal
by the learned counsel for the appellant is a vital question which
has to be considered by the trial court, in the light of the
evidence and materials on record and as the point was not
raised in the trial court, the trial court had no occasion to come
into its on finding of merit. The learned counsel submitted that,
regarding the second seizure, the accused was not questioned
u/s.313 of Cr.P.C.
19. In the result, especially in the light of the above facts
and circumstances involved in the case and the discussion
made, the finding arrived on by the court below under point no.1
is confirmed but the finding with respect to the finding under point
no.2 is set aside and remand the matter back to the trial court for
its fresh consideration and decision. It is made clear that after
considering the matter, the trial court is free to award suitable
punishment, on the basis of its finding under point no.1, as
approved by this court and also on the basis of the out come
after fresh consideration of the matter under point no.2. As the
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appellant had already convicted u/s.20(b)(II)(c) of the NDPS Act,
the said conviction is sustained and the matter is being
remanded for imposing suitable punishment, on the basis of the
outcome of the remanded issue, after hearing the accused, for
which if it is necessary the trial court is free to procure the
presence of the accused from the jail.
In the result, this appeal is partly allowed, while confirming
the conviction u/s.20(b)(ii)(C) of the NDPS Act and also the
finding of the court below under point No.1 and to the extent by
setting aside the finding under 2nd point and the matter is
remanded back to the trial court for disposal, awarding adequate
punishment, which shall be done as expeditiously as possible, at
any rate within 3 months from the date of receipt of the judgment
and back records from this Court.
V.K.MOHANAN,
Judge.
ami/