{"id":263254,"date":"2008-02-14T00:00:00","date_gmt":"2008-02-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/aboobacker-vs-state-of-kerala-on-14-february-2008"},"modified":"2017-12-26T22:11:06","modified_gmt":"2017-12-26T16:41:06","slug":"aboobacker-vs-state-of-kerala-on-14-february-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/aboobacker-vs-state-of-kerala-on-14-february-2008","title":{"rendered":"Aboobacker vs State Of Kerala on 14 February, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
Aboobacker vs State Of Kerala on 14 February, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 1132 of 2002()\n\n\n1. ABOOBACKER, S\/O.POKKAKKILATHVEETTIL,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA,\n                       ...       Respondent\n\n                For Petitioner  :SRI.C.A.CHACKO\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice A.K.BASHEER\n\n Dated :14\/02\/2008\n\n O R D E R\n                               A.K.BASHEER, J.\n              - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -\n                          Crl.A.No.1132 OF 2002\n              - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -\n              Dated this the 14th day of February 2008\n\n                                   JUDGMENT\n<\/pre>\n
      Appellant is the accused in a prosecution under Section 20<\/p>\n
(b)(i) of Narcotic Drugs and Psychotropic Substances Act<\/a> . The<\/p>\n
learned Sessions Judge, Thrissur before whom the appellant was<\/p>\n
tried had found him guilty of the offence alleged against him<\/p>\n
and he was accordingly convicted and sentenced to undergo<\/p>\n
Rigorous Imprisonment for 18 months and also to pay a fine of<\/p>\n
Rs.15,000\/- and in default of payment of fine to suffer Simple<\/p>\n
Imprisonment for 6 months.\n<\/p>\n
      2. The prosecution case in brief was that the accused was<\/p>\n
found carrying 1.530 kg. of ganja in a plastic sack at about 4.45<\/p>\n
p.m. on February 16, 2001. PW.3 who was working as Sub<\/p>\n
Inspector of Police in Kunnamkulam Police Station stated that<\/p>\n
he was on patrol duty along with Pw.4 and others through<\/p>\n
Vadakkancherry-Pattambi road. When the patrol party reached<\/p>\n
infront of Victory Offset Press the accused was found walking<\/p>\n
along that road towards south with the sack in his hand<\/p>\n
Crl.A.No.1132 OF 2002
\n                            :: 2 ::\n<\/p>\n
\ncontaining the contraband and some beedi leaves, labels etc.<\/p>\n
When the accused saw the patrol party, he appeared perplexed<\/p>\n
and frightened    and turned his face away.       This aroused<\/p>\n
suspicion. Therefore Pw.3 asked the driver of the jeep to stop.<\/p>\n
The accused was questioned and he admitted that the sack<\/p>\n
contained ganja. Pw.4, the Constable who accompanied Pw.3<\/p>\n
was deputed to procure a weighing scale. He came back with<\/p>\n
Sajan, a goldsmith, who carried a scale with him. The ganja<\/p>\n
which was found in the sack was taken out and weighed in the<\/p>\n
presence of the constables and two independent witnesses<\/p>\n
(Pws.1 and 2) . Three bundles of 5 grams each were taken as<\/p>\n
sample. The remaining contraband and the sample packets were<\/p>\n
properly packed and sealed, and signatures of the accused and<\/p>\n
witnesses were obtained on them. The accused was arrested<\/p>\n
and produced before the Court. Thereafter      PW.5 conducted<\/p>\n
investigation and charge sheet was laid thereafter.<\/p>\n
     3.   On committal,    the accused was tried before the<\/p>\n
Sessions Court, Thrissur. The prosecution examined Pws.1 to 5<\/p>\n
and marked Exts.P1 to P9 and Mos.1 to 6. Ext.D1 to D4 were<\/p>\n
Crl.A.No.1132 OF 2002
\n                             :: 3 ::\n<\/p>\n
\nmarked on the side of the defence. The learned Sessions Judge<\/p>\n
found that the prosecution had satisfactorily established the<\/p>\n
charge against the accused. Accordingly he was convicted and<\/p>\n
sentenced as mentioned earlier.\n<\/p>\n
     4. While impugning the order of conviction and sentence<\/p>\n
Mr.Shafeek, learned counsel for the appellant, contends that<\/p>\n
the court below had grossly erred in overlooking the fatal and<\/p>\n
material discrepancies in the prosecution case. He points out<\/p>\n
that the time and place of occurrence as spoken to by Pw.3 and<\/p>\n
4 were totally at variance. There was no satisfactory explanation<\/p>\n
from the side of the prosecution about the discrepancies noticed<\/p>\n
by the court in the samples packets. There was also no<\/p>\n
explanation for the delay in forwarding the samples to the<\/p>\n
Forensic Science Laboratory.\n<\/p>\n
        5. Pws.1 and 2 who were stated to be independent<\/p>\n
witnesses did not support the prosecution case. They stated<\/p>\n
before the Court that they had not seen the alleged<\/p>\n
apprehension of the appellant      with the contraband in his<\/p>\n
possession. However these two witnesses admitted their<\/p>\n
Crl.A.No.1132 OF 2002
\n                            :: 4 ::\n<\/p>\n
\nsignature in Ext.P2 seizure mahazar.\n<\/p>\n
     6. Pw.3 the Sub Inspector and Pw.4 the Constable who<\/p>\n
accompanied him in the patrol party, are material witnesses as<\/p>\n
far as the prosecution is concerned. Pw.3 stated that he, along<\/p>\n
with other members of the patrol party, was proceeding through<\/p>\n
Vadakkancherry road towards Pattambi road. According to this<\/p>\n
witness Pattambi road runs north-south. The party had come<\/p>\n
along   Kozhikode-Vadakkancherry    Road    and   entered   the<\/p>\n
Pattambi road. When the      patrol party reached in front of<\/p>\n
Victory Offset Press on the Pattambi road, the accused was<\/p>\n
found in front of the Press with the sack. But Pw.4 stated that<\/p>\n
the accused was found while the patrol party was travelling<\/p>\n
along Vadakkanchery road. This witness said that the party had<\/p>\n
come    from     Kunnamkulam-Pattambi     road   and   entered<\/p>\n
Vadakkancherry road. But Victory Press is admittedly situated<\/p>\n
on the Pattambi road. Going by the version of Pw.4 the patrol<\/p>\n
party was proceeding from South to North,       whereas Pw.3<\/p>\n
stated that the party had been coming from North to South. It<\/p>\n
had come on record that Vadakkancherry road runs along the<\/p>\n
Crl.A.No.1132 OF 2002
\n                              :: 5 ::\n<\/p>\n
\nnorthern side of Pattambi road. Further, according to Pw.3, the<\/p>\n
accused    was apprehended with the contraband at 4.45 pm,<\/p>\n
whereas Pw.3 asserted that the detention and recovery was at<\/p>\n
4.15 p.m.     Pw.4 stated that he had arrested the accused<\/p>\n
immediately when it was revealed by the accused that he had<\/p>\n
been carrying the contraband in the sack, whereas PW.3 stated<\/p>\n
that arrest was made after the entire process of seizure was<\/p>\n
effected.\n<\/p>\n
     7.   It has come out in evidence that the investigating<\/p>\n
officer, Circle Inspector of Police, Kunnamkulam had produced<\/p>\n
the sample packets and the remaining contraband before the<\/p>\n
court on the next day after the alleged recovery. It is seen from<\/p>\n
Ext.P7, property list that the samples were returned to the<\/p>\n
investigating officer on February 17, 2001 since certain defects<\/p>\n
were noticed. For instance, it was noticed that ‘gross weight,<\/p>\n
net weight and station number’ had not been indicated in<\/p>\n
separate slips on the packets.      Thereafter, the investigating<\/p>\n
agency had cured the defect and reproduced the samples and<\/p>\n
the contraband before the court on February 19, 2001.<\/p>\n
Crl.A.No.1132 OF 2002
\n                               :: 6 ::\n<\/p>\n
\n
     8. It is contended by the learned counsel that the fact that<\/p>\n
gross weight and net weight of the contraband and the samples<\/p>\n
had not been indicated on the containers, will go a long way to<\/p>\n
show that seizure and sampling as alleged had never taken<\/p>\n
place. In this context, learned counsel pointed out that one<\/p>\n
Sajan was allegedly called to the scene of occurrence with a<\/p>\n
scale for the purpose of weighing the sample and the<\/p>\n
contraband. Curiously, Sajan was not examined in the court.<\/p>\n
Even though it was alleged that he had weighed the contraband<\/p>\n
and the samples. Learned counsel contends that going by the<\/p>\n
version given by PW3 and 4, they had indicated the weight of<\/p>\n
the contents of the packets at the scene of occurrence itself.<\/p>\n
But the fact that such details were absent on the packets when<\/p>\n
they were produced before the court will cut at the root of the<\/p>\n
prosecution case. Non examination of Sajan, according to the<\/p>\n
learned counsel, is also totally fatal to the prosecution case. It is<\/p>\n
further pointed out by the learned counsel that the sample is<\/p>\n
seen to have been forwarded to the laboratory only on May 26,<\/p>\n
2001. No evidence was adduced by the prosecution to show<\/p>\n
Crl.A.No.1132 OF 2002
\n                               :: 7 ::\n<\/p>\n
\nthat the samples were kept in proper custody during the<\/p>\n
intervening period. No witness was examined in this connection<\/p>\n
to prove that there was no chance for tampering.<\/p>\n
     9. In this context, it may also be worthy to mention that<\/p>\n
the detecting officer had a case that he had searched the<\/p>\n
business premises of the accused at Erumappetty within the<\/p>\n
limits of the said Police Station. According to the officer, search<\/p>\n
was conducted pursuant to the information furnished by the<\/p>\n
accused that some more quantity of ganja had been kept in his<\/p>\n
shop. But the officer could not recover any ganja from the shop.<\/p>\n
Some ‘bidi’ labels allegedly forged by the accused in the name of<\/p>\n
another manufacturer had been recovered. The officer stated<\/p>\n
that the labels and other materials seized from the shop of the<\/p>\n
appellant had been handed over to the station house officer of<\/p>\n
Erumappetty. Reference has been made to the above only to<\/p>\n
highlight the fact that the appellant has a specific case that the<\/p>\n
present case had been foisted against him for the reason that no<\/p>\n
recovery could be effected from his shop by PW3. Anyhow, I do<\/p>\n
not propose to deal with the above contention any further.<\/p>\n
Crl.A.No.1132 OF 2002
\n                              :: 8 ::\n<\/p>\n
\n     Having perused the entire materials available on record, I<\/p>\n
am of the view that the appellant is entitled to get the benefit of<\/p>\n
doubt in view of the contradictions in the versions given by the<\/p>\n
two material witnesses namely PW3 and 4. Apparently these<\/p>\n
witnesses had given different versions with regard to the scene<\/p>\n
of occurrence and the time of seizure. The evidence on seizure,<\/p>\n
sampling, etc. is not entirely satisfactory. Therefore, the order<\/p>\n
of conviction and sentence passed by the court below is set<\/p>\n
aside. The appellant is acquitted. The bail bond executed by<\/p>\n
him shall be cancelled. Appeal is allowed.<\/p>\n
                                        (A.K.BASHEER, JUDGE)
\njes<\/p>\n
Crl.A.No.1132 OF 2002
\n                       :: 9 ::\n<\/p>\n
\n
                                       A.K.BASHEER, J.\n<\/p><\/blockquote>\n
                                – – – – – – – – – – – – – – – – – – – – – –
\n                                 Crl.A.No.1132 OF 2002\n<\/p><\/blockquote>\n
                                – – – – – – – – – – – – – – – – – – – – – –\n<\/p><\/blockquote>\n
                                           JUDGMENT<\/p>\n
                                      Dated 14thFeb 2008<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Aboobacker vs State Of Kerala on 14 February, 2008 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 […]<\/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-263254","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nAboobacker vs State Of Kerala on 14 February, 2008 - 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\/aboobacker-vs-state-of-kerala-on-14-february-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Aboobacker vs State Of Kerala on 14 February, 2008 - 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