{"id":113975,"date":"2010-03-24T00:00:00","date_gmt":"2010-03-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/krishnakumar-cheruppu-kumar-vs-state-of-kerala-on-24-march-2010"},"modified":"2016-03-11T09:17:56","modified_gmt":"2016-03-11T03:47:56","slug":"krishnakumar-cheruppu-kumar-vs-state-of-kerala-on-24-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/krishnakumar-cheruppu-kumar-vs-state-of-kerala-on-24-march-2010","title":{"rendered":"Krishnakumar @ Cheruppu Kumar vs State Of Kerala on 24 March, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
Krishnakumar @ Cheruppu Kumar vs State Of Kerala on 24 March, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 638 of 2009()\n\n\n1. KRISHNAKUMAR @ CHERUPPU KUMAR,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA,\n                       ...       Respondent\n\n                For Petitioner  :SRI.AJITH KRISHNAN\n\n                For Respondent  : No Appearance\n\nThe Hon'ble MR. Justice V.K.MOHANAN\n\n Dated :24\/03\/2010\n\n O R D E R\n                       V.K.MOHANAN, J.\n                     -------------------------------\n                  Crl. APPEAL No.638 of 2009\n                     -------------------------------\n            Dated this the 24th day of March, 2010.\n\n                          J U D G M E N T\n<\/pre>\n
     This appeal is preferred by the sole accused, challenging<\/p>\n
the judgment dated 29.11.2008 in S.C.No.34\/2007, by which the<\/p>\n
appellant stand convicted and sentenced u\/s.20(b)(1) of<\/p>\n
Narcotic Drugs and Psychotropic Substances Act, 1985.<\/p>\n
     2.   The prosecution case is that when PW4, the Sub<\/p>\n
Inspector of Police, Poonthura Police station and party while<\/p>\n
they were conducting patrol duty, on 18.5.2005, received an<\/p>\n
information that, in T.C.No.43\/2305 of Puthuval Puthenveedu,<\/p>\n
where   the   accused     and      family     residing, the accused<\/p>\n
unauthorisedly keeping ganja and accordingly search was<\/p>\n
conducted in the said house and thus detected 1175 gms of<\/p>\n
ganja kept in the kitchen of the said house and the accused was<\/p>\n
arrested at about 5.45 PM on the same date. Thereafter, PW4<\/p>\n
and party came to the police station along with the accused and<\/p>\n
the contraband article seized and thereafter registered crime<\/p>\n
Crl. APPEAL No.638 of 2009
\n                                  2<\/span><\/p>\n
No.122\/05, in Poonthura police station for the offence u\/s.20(b)(ii)<\/p>\n
(B) of NDPS Act. On completing the investigation in the above<\/p>\n
crime, a report was filed before the committal court, namely, JFCM<\/p>\n
Court-II, Trivandrum, wherein committal proceedings were initiated<\/p>\n
and the case was committed to the Sessions Court, from where it<\/p>\n
was made over to the Court of Addl. Sessions Judge and then to<\/p>\n
Additional District and Sessions Court-II, Thiruvananthapuram,<\/p>\n
and subsequently transferred to the trial court.           On the<\/p>\n
appearance of the accused, a formal charge was framed u\/s.20(b)<\/p>\n
(ii)(B) of NDPS Act, which was read over and explained to him and<\/p>\n
he denied the said charge and pleaded not guilty. Thereafter, the<\/p>\n
prosecution adduced its evidence consists of oral testimony of<\/p>\n
Pws.1 to 6 and documentary evidence consists of Exts.P1 to P7.<\/p>\n
M.O.s 1 to 6 were identified as material objects. No evidence,<\/p>\n
either oral or documentary, produced from the side of the defence.<\/p>\n
On the basis of the available evidence and materials on record,<\/p>\n
the trial court found that the accused has committed the offence,<\/p>\n
for which he was tried and accordingly the appellant is convicted<\/p>\n
u\/s.20(b)(ii)(B) of NDPS Act and sentenced him to undergo<\/p>\n
Crl. APPEAL No.638 of 2009
\n                                 3<\/span><\/p>\n
rigorous imprisonment for 4 years and to pay a fine of Rs.25,000\/-<\/p>\n
and the default sentence is fixed as 2 years imprisonment. It is<\/p>\n
directed that the sentence awarded against the appellant shall run<\/p>\n
concurrently with the sentence, which he is undergoing in another<\/p>\n
case. It is the above conviction and sentence challenged in this<\/p>\n
appeal.\n<\/p>\n
       3. I have heard the learned counsel for the appellant and<\/p>\n
also the learned Public Prosecutor. To substantiate the case<\/p>\n
against the accused\/appellant, the prosecution very much relied<\/p>\n
upon the evidences of Pws.1, 2 and 4. PW2 is an independent<\/p>\n
witness, who is the attester to Ext.P1 search list. He had also<\/p>\n
identified M.O.1, the letter and M.O.2 series of 144 newspaper<\/p>\n
pieces. PWs.1 and 4 deposed that, when they were on patrol<\/p>\n
duty, received an information to the effect that the accused was<\/p>\n
conducting sale of ganja in his house. Thus according to them,<\/p>\n
they proceeded to the house of the accused, who was found in<\/p>\n
front of the said house and on questioning him, his reply was not<\/p>\n
satisfactory and therefore PW4 got suspicion about the storage of<\/p>\n
ganja in the said house. It is the further case of PW4 that, under<\/p>\n
Crl. APPEAL No.638 of 2009
\n                                  4<\/span><\/p>\n
the said suspicious circumstances, PW4 informed the matter to<\/p>\n
the Crime Sub Inspector of police, ie., one Mr.Ganesan, through<\/p>\n
wireless and asked him to come after preparing the search list.<\/p>\n
PW1 is very specific that at about 5.30 PM the said S.I. of police<\/p>\n
reached with the search list. It is also the case of PW4 that, he<\/p>\n
had prepared Ext.P3 search memo and sent the same to the court<\/p>\n
and after obtaining the service of PW2 and CW1, they conducted<\/p>\n
the search in the house of the accused. It is also the case of<\/p>\n
Pws.1 and 4 that before the search, they have complied with the<\/p>\n
mandatory requirements u\/s.50 of the NDPS Act. Thus according<\/p>\n
to the police, the search was conducted in the house of the<\/p>\n
accused in the presence of independent witnesses and<\/p>\n
accordingly, detected a plastic cover in the kitchen beneath the<\/p>\n
slab. According to the prosecution, there were 144 small packets<\/p>\n
in the plastic cover, having a total weight of 280 gms and another<\/p>\n
895 gms of ganja were also found beside the said 144 packets.<\/p>\n
Thus according to the prosecution, altogether the ganja that<\/p>\n
detected will come about 1175 gms. According to the prosecution,<\/p>\n
two samples were taken containing 50 gms each and the same<\/p>\n
Crl. APPEAL No.638 of 2009
\n                                   5<\/span><\/p>\n
were separately sealed and labelled and thereafter the accused<\/p>\n
was arrested. The accused was arrested as per Ext.P5 arrest<\/p>\n
memo and Ext.P6 inspection memo.            Ext.P7 is the intimation<\/p>\n
given to the wife of the accused. The prosecution had identified<\/p>\n
M.O.1 as ganja of having 1175 gms. All the labels pasted on the<\/p>\n
material objects contained the signatures of accused, the<\/p>\n
independent witnesses and the officer, who seized the same,<\/p>\n
namely PW4. PW2 deposed in terms of the prosecution case,<\/p>\n
when he was examined. PW3 is the expert through whom Ext.P2<\/p>\n
chemical analysts report proved. PW5 is the Circle Inspector of<\/p>\n
police, who sent the samples for a chemical analysis and PW6,<\/p>\n
the C.I. of police, laid the charge. It is on the basis of the above<\/p>\n
materials, the trial court found the accused guilty.<\/p>\n
       4.    The learned counsel for the appellant vehemently<\/p>\n
submitted that, absolutely there is no evidence or materials to<\/p>\n
establish that the prosecution has complied with the mandatory<\/p>\n
provisions of Section 42 of NDPS Act. According to the learned<\/p>\n
counsel, no report as contemplated u\/s.42(2) of NDPS Act is<\/p>\n
prepared and produced by the prosecution. It is also the case of<\/p>\n
Crl. APPEAL No.638 of 2009
\n                                  6<\/span><\/p>\n
the learned counsel that PW4, who claimed to have received the<\/p>\n
information, did not venture to write down the information received<\/p>\n
by him. Thus according to the learned counsel, in the light of the<\/p>\n
settled position of law, the accused\/appellant is entitled to get a<\/p>\n
clear acquittal for non-compliance of the statutory mandate that<\/p>\n
contained in Section 42 of NDPS Act. It is also the contention of<\/p>\n
the learned counsel that, even though PW4 has not recorded the<\/p>\n
information received by him and no report was prepared to sent to<\/p>\n
the higher officials, as required u\/s.42(2) of NDPS Act, even after<\/p>\n
the so called search and seizure of the contraband article, no<\/p>\n
report was sent to the higher officials. Another contention raised<\/p>\n
by the counsel for the appellant is to the effect that, though the<\/p>\n
alleged seizure was on 18.5.2005, absolutely there is no evidence<\/p>\n
to show that the contraband article has produced before the court.<\/p>\n
The learned counsel pointed out that, no property list was<\/p>\n
prepared and produced before the court and there is nothing on<\/p>\n
record to show that the court has received any property produced<\/p>\n
by the prosecution agency.       The learned counsel invited my<\/p>\n
attention to Ext.P2 FSL report, wherein there is an endorsement to<\/p>\n
Crl. APPEAL No.638 of 2009
\n                                 7<\/span><\/p>\n
the effect that, the same were forwarded to the lab by a letter<\/p>\n
dated 15.6.2006. According to the learned counsel, even if it is<\/p>\n
assumed that the contraband article was sent to the lab on<\/p>\n
15.6.2006, there is no evidence as to where the contraband article<\/p>\n
were kept, after the alleged seizure on 18.5.2005. There is also<\/p>\n
no evidence as to who is the custodian of the contraband article in<\/p>\n
the meanwhile. It is also pointed out by the learned counsel that,<\/p>\n
the seizure and drawing of sample were done in a highly improper<\/p>\n
and illegal manner, which prejudiced the defence. According to<\/p>\n
the learned counsel, absolutely there is no evidence as to the real<\/p>\n
quantity of ganja, allegedly possessed by the accused.            So<\/p>\n
according to the learned counsel, the appellant is entitled to get an<\/p>\n
acquittal.\n<\/p>\n
       5.    On the other hand, the learned Public Prosecutor<\/p>\n
submitted that PW4 received the information, when himself and<\/p>\n
party were on patrol duty and at that time it was impossible for him<\/p>\n
to reduce the same into writing as envisaged u\/s.42(i) of NDPS<\/p>\n
Act and therefore the contention of the counsel for the appellant in<\/p>\n
this regard is liable to be rejected, especially in the light of the<\/p>\n
Crl. APPEAL No.638 of 2009
\n                                  8<\/span><\/p>\n
decision of this court in Sajan Abraham Vs. State of Kerala,<\/p>\n
reported in [2001 Crl. Law Journal 4002]. It is also the contention<\/p>\n
of the learned Public Prosecutor that as evidenced by Ext.P2, the<\/p>\n
contraband articles were reached in the court and therefore it is<\/p>\n
clear that the articles were already produced before the court and<\/p>\n
all contentions raised by the defence is liable to be rejected.<\/p>\n
       6. I have carefully considered the arguments advanced by<\/p>\n
the learned counsel for the appellant and the learned Public<\/p>\n
Prosecutor and also perused the evidence and materials on<\/p>\n
record. In the present case, according to the prosecution, PW4<\/p>\n
and party received the information regarding the contravention of<\/p>\n
the provisions of the Act by keeping of ganja in the house of the<\/p>\n
accused, while they were on patrol duty and therefore the<\/p>\n
contention raised by the learned counsel for the appellant,<\/p>\n
regarding the non-compliance of Sections 42(i) and 42(ii) of NDPS<\/p>\n
Act, are not relevant in the present case. It is also relevant to note<\/p>\n
that on getting the information, before conducting the search, PW4<\/p>\n
had prepared Ext.P3 search memo, which sent to the court and it<\/p>\n
Crl. APPEAL No.638 of 2009
\n                                  9<\/span><\/p>\n
can be treated as compliance of S.42 of NDPS Act, in the light of<\/p>\n
the proviso contained therein. In the light of the other facts and<\/p>\n
circumstances and the evidence involved in the case, I am not<\/p>\n
proposed to enter into more discussion, regarding the question<\/p>\n
raised by the counsel with respect to the non-compliance of S.42<\/p>\n
of NDPS Act.\n<\/p>\n
       7.   Though the learned Public Prosecutor opposed the<\/p>\n
contentions raised by the learned counsel for the appellant, the<\/p>\n
learned Public Prosecutor miserably failed to convince this court<\/p>\n
that, the articles allegedly seized from the house of the accused,<\/p>\n
were produced before the court on any date, before the<\/p>\n
commencement of the trial. It is pertinent to note that, no property<\/p>\n
list and no forwarding note are produced in the court below and no<\/p>\n
record of the court is also produced showing that, the properties<\/p>\n
were produced before the court and the court has acknowledged<\/p>\n
the receipt of the same. It is also relevant to note that, no seizure<\/p>\n
mahazar was prepared and produced in this case.                  The<\/p>\n
prosecution, to substantiate its claim that the contraband article<\/p>\n
detected and seized from the house of the accused, heavily relied<\/p>\n
Crl. APPEAL No.638 of 2009
\n                                   10<\/span><\/p>\n
upon Ext.P1 search list. I have carefully perused Ext.P1 search<\/p>\n
list and there is nothing to show that the articles mentioned therein<\/p>\n
has produced before the court below. At the end of Ext.P1 search<\/p>\n
list, it is shown that the same is being forwarded to the court along<\/p>\n
with a copy of FIR and there is endorsement to the effect that the<\/p>\n
articles being produced before the court. Going by the evidence of<\/p>\n
PW4, it can be seen that on the basis of the communication<\/p>\n
passed to the crime S.I., Sri.Ganesan, he came to the spot<\/p>\n
preparing a search list. According to the prosecution, the search<\/p>\n
was conducted by Pws.1 and 4, in the presence of other<\/p>\n
independent witnesses and if that be so, how the version of the<\/p>\n
prosecution can be relied and acted upon, that Ext.P1 search list<\/p>\n
was prepared by Mr.Ganesan, the crime S.I. So the evidence in<\/p>\n
this regard, especially the version given by PW1, is not tallying<\/p>\n
with the evidence of PW4 and the prosecution evidence itself is<\/p>\n
contradictory in nature regarding the seizure.<\/p>\n
       8. It is also relevant to note that, as per the evidence of<\/p>\n
Pws.1 and 4, they weighed the entire 144 packets together,<\/p>\n
without removing the papers, ie., M.O.2 series, used for rapping<\/p>\n
Crl. APPEAL No.638 of 2009
\n                                    11<\/span><\/p>\n
the substance. The above version of the prosecution witnesses is<\/p>\n
sufficient to hold that the prosecution has no specific case<\/p>\n
regarding the actual weight of the contraband article, allegedly<\/p>\n
recovered from the house of the accused and the absence of the<\/p>\n
above fact has a bearing since the punishment depends upon the<\/p>\n
quantity involved. So the manner under which the contraband<\/p>\n
articles are seized and weighed caused high prejudice to the<\/p>\n
accused.\n<\/p>\n
       9. It is also relevant to note that, as discussed and indicated<\/p>\n
above, in the absence of any contemporaneous document or<\/p>\n
evidence with respect to, producing the contraband article before<\/p>\n
the court below, it is quite unsafe to convict the accused for the<\/p>\n
alleged possession of ganja. Even according to the prosecution,<\/p>\n
the seizure was effected on 18.5.2005 but there is no evidence as<\/p>\n
to when the said contraband article was produced before the<\/p>\n
court. It is true that in Ext.P2, there is an endorsement to the<\/p>\n
effect that, the samples received in the chemical analysts lab, is<\/p>\n
on the basis of a letter dated 15.6.2006 from the court. Simply on<\/p>\n
the basis of the said endorsement, it can not be held that the<\/p>\n
Crl. APPEAL No.638 of 2009
\n                                  12<\/span><\/p>\n
articles were in the safe custody of the court. Even according to<\/p>\n
PW5, it is he who sent a letter to the court requesting to send the<\/p>\n
articles for chemical analysis and the same was done only on<\/p>\n
15.6.2006 and that too when he had occasion to see the CD file.<\/p>\n
Thus, it is clearly brought out from the evidence and materials on<\/p>\n
record that, the prosecution has no idea as to, who was the<\/p>\n
authority under whom the contraband articles were kept after its<\/p>\n
seizure on 18.5.2005.       This court in the decision reported in<\/p>\n
Sasidharan Vs. State of Kerala [2007(1) KLT 720] has held that,<\/p>\n
the prosecution has a duty to prove that it was the sample taken<\/p>\n
from the contra band liquor seized from the accused, which had<\/p>\n
reached in the hands of the Chemical Examiner in a fool proof<\/p>\n
condition. It has held that, without the link evidence of actual<\/p>\n
sampling by the concerned clerk of the court by drawing sample<\/p>\n
from the can and sending the same in a sealed packet to the<\/p>\n
Chemical Examiner with a specimen seal sent separately for<\/p>\n
tamper proof despatch, the prosecution can not be held to have<\/p>\n
brought home the offence against the appellant. In the very same<\/p>\n
decision it was also held that, the Magistrates have to take care<\/p>\n
Crl. APPEAL No.638 of 2009
\n                                    13<\/span><\/p>\n
that contemporary proceedings evidencing and drawing of sample<\/p>\n
and sending the same to the Chemical Examiner in a tamper proof<\/p>\n
condition are recorded in proceedings before the court.            On<\/p>\n
examination of the facts and circumstances involved in the present<\/p>\n
case in the light of the above decision and especially when there is<\/p>\n
no explanation from the side of the prosecution regarding the safe<\/p>\n
custody of contraband article and the absence of evidence<\/p>\n
regarding he endorsement of contraband article with the court, I<\/p>\n
am unable to concur the findings arrived on by the court below and<\/p>\n
the conviction recorded thereunder.           Therefore, I have no<\/p>\n
hesitation to hold that because of the irregularity and illegal<\/p>\n
procedure adopted by the prosecution agency in the case of<\/p>\n
seizure and investigation, the prosecution has miserably failed to<\/p>\n
prove the allegation against the accused\/appellant beyond<\/p>\n
reasonable doubt and consequently the benefit will go in favour of<\/p>\n
the accused\/appellant. Therefore, the conviction recorded by the<\/p>\n
court below is liable to be set aside and I do so.\n<\/p>\n
       In the result, this Criminal Appeal is allowed setting side the<\/p>\n
judgment dated 29.11.2008 in S.C.No.34\/07 of the Court of Addl.<\/p>\n
Crl. APPEAL No.638 of 2009
\n                                    14<\/span><\/p>\n
Sessions Judge, Fast Track Court-III, Trivandrum and the<\/p>\n
appellant\/accused is acquitted of all the charges levelled against<\/p>\n
him.    As the appellant\/accused is acquitted of all the charges<\/p>\n
levelled against him, he is entitled to get released from jail<\/p>\n
forthwith, if he is not required in any other case.<\/p>\n
       The Crl. Appeal is allowed accordingly.\n<\/p>\n
       The Registry is directed to communicate the Gist of<\/p>\n
Judgment.\n<\/p>\n<\/p>\n
                                                    V.K.MOHANAN,
\n                                                      Judge.\n<\/p>\n
ami\/<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Krishnakumar @ Cheruppu Kumar vs State Of Kerala on 24 March, 2010 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-113975","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nKrishnakumar @ Cheruppu Kumar vs State Of Kerala on 24 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/krishnakumar-cheruppu-kumar-vs-state-of-kerala-on-24-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Krishnakumar @ Cheruppu Kumar vs State Of Kerala on 24 March, 2010 - 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