{"id":92459,"date":"2002-01-11T00:00:00","date_gmt":"2002-01-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/satyapalan-vs-state-of-kerala-on-11-january-2002"},"modified":"2014-03-15T01:53:27","modified_gmt":"2014-03-14T20:23:27","slug":"satyapalan-vs-state-of-kerala-on-11-january-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/satyapalan-vs-state-of-kerala-on-11-january-2002","title":{"rendered":"Satyapalan vs State Of Kerala on 11 January, 2002"},"content":{"rendered":"
Kerala High Court<\/div>\n
Satyapalan vs State Of Kerala on 11 January, 2002<\/div>\n
Equivalent citations: 2002 (1) ALT Cri 335, 2002 (82) ECC 783<\/div>\n
Author: M H Nair<\/div>\n
Bench: M H Nair<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 M.R. Hariharan Nair, J. <\/p>\n
 1. A novel question arises in this case and that is whether in a case where additional
\nevidence is recorded under Section 391(2) of the Code of Criminal Procedure in an N.D.P.S.
\nAct case, the accused can seek the benefit of Section 41 of the N.D.P.S. (Amendment)
\nAct, 2001 (Act 9 of 2001). The said provision gives the benefit of reduced sentence
\navailable under the amended provisions with retrospective effect to the accused whose
\ncases are still under trail; but denies that benefit to the accused in cases which are
\npending before the appellate court.\n<\/p>\n
 2. The challenge in the appeal is with regard to the conviction entered against the
\nappellant as accused in S.C. No. 78\/2000 of the Special Court for the Trial of the
\nN.D.P.S. Act Cases, Vadakara, for the offence punishable under Section 21 of the N.D.P.S.
\nAct and the sentence of rigorous imprisonment for 10 years and fine of Rs. 1 lakh (in
\ndefault, simple imprisonment for six months) imposed therefor.\n<\/p>\n
 3. The prosecution case that at about 2 p.m. on 24.6.1999, P.W. 3, who was the
\nSub Inspector of Vengara Police Station, who was doing patrol within his area of
\njurisdiction, got a secret information that sale of brown sugar was going on in the
\npremises of the house of Sathyapalan (accused); that after communication of the
\ninformation to the official superior, he proceeded to the spot along with his police
\nparty, detained the accused, who was found near the pathway leading to his house
\nwhile he was in the process of slipping away from the place on seeing the police party;
\nthat in the subsequent body search effected after compliance with the requirements
\nof Section 50 of the N.D.P.S. Act, a packet containing brown sugar was found on the left
\npocket of the shirt worn by the accused and that the weight of the brown sugar found
\nin the plastic cover which was inside the aforesaid packet (covered with paper) was
\nfound to be 2.5. grams found acceptance by the trial court.\n<\/p>\n
 4. When this matter was heard earlier, noticing the fact that the occurrence
\nwitnesses had turned hostile and that the evidence of the searching official alone was
\navailable to prove the matter and that there was no effort made by the trial court to
\nexamine the other occurrence witnesses, who had been cited in the case, I passed an
\norder on 27.9.2001 invoking the power under Section 391 of the Cr.P.C. The records were
\ndirected to be sent back to the Special Judge with a direction that he might issue
\nsummons to the other witnesses, who were in the patrol party of P.W. 3 at the time of
\noccurrence; record the evidence of such of them as are available for examination;
\ncertify the evidence so recorded as contemplated in Section 391(2) of the Cr.P.C. and
\nforward the same to this Court. It was also observed in the order that the accused
\nshould also be questioned under Section 313 of the Cr.P.C. and afforded an opportunity to
\nadduce appropriate defence evidence in the light of the prospective evidence of the
\nprosecution that the trial court was expected to record.\n<\/p>\n
 5. Pursuant to the above direction, the trial court has examined P.Ws. 5 and 6
\nand also questioned the accused with regard to the circumstances appearing in their
\nevidence, It also afforded an opportunity to the accused to adduce defence evidence.
\nHowever, that opportunity was not availed of by the accused.\n<\/p>\n
 6. In between the date of the aforesaid order of this Court and this date, the
\nN.D.P.S. Act underwent substantial changes. While quantity of brown sugar weighing
\nless than 250 mgs. alone was small quantity under the N.D.P.S. Act as it stood on the
\ndate of occurrence, the limit of small quantity has been enhanced to 5 grams under
\nAct 9 of 2001 which came into effect on 2.10.2001. Under the same amendment,
\ncommercial quantity of brown sugar was also defined. This was notified as 250
\ngrams. The impact of the amendment is that the quantum of brown sugar seized in
\nthe case viz., 2.5 grams was beyond the limit of small quantity as on the date of
\noccurrence; but is a small quantity under the law as it stands today. It is also much
\nless than the commercial quantity of the item as defined under the amended Act. Yet
\nanother impact of the amendment is that the punishment for possessing small quantity
\nof brown sugar under Section 21 of the Act is only imprisonment for a term which may
\nextend to six months or fine which may extend to ten thousand rupees in the place of
\nrigorous imprisonment for a period which shall not be less than 10 years; but which
\nmight extend to 20 years besides fine which shall not be less than one lakh rupees; but
\nwhich might extend to two lakhs rupees. Yet another novel feature of the said
\namendment is the introduction of retrospective effect with regard to the punishment
\nfor the offence vide Section 41 of the Amendment Act. It is provided that any person
\nfound guilty of any offence punishable under the principal Act, as it stood immediately
\nbefore the commencement of the Amendment Act shall be liable for a punishment
\nwhich is lesser than the punishment for which he was otherwise liable on the date of
\ncommission of such offence.\n<\/p>\n
 7. In the light of the aforesaid provisions, the learned counsel for the appellant
\nsubmitted that in so far as additional evidence of P.Ws. 5 and 6 were collected by the
\ntrial court on 18.12.2001 which is after the commencement of the Amendment Act,
\nthe accused should be given the benefit of the amendment viz., the lesser punishment
\nfor possessing small quantity as defined in the Amendment Act. The learned counsel
\nalso submitted that the case is cooked up by the prosecution without any factual basis
\nand that there is no reliable evidence forthcoming to prove that the accused has
\ncommitted the crime. Violation of the mandatory provisions in the N.D.P.S. Act,
\nespecially Sections 42 and 50 are also highlighted by the learned counsel for the appellant.\n<\/p>\n
 8. On the arguments advanced in this case, the points that arise for decision are:\n<\/p>\n
 (1) Whether the accused was found in possession of 2.5 grams of brown sugar on
\n24.8.1999 as alleged?\n<\/p>\n
 (2) Whether there is violation of the mandatory provisions in Sections 42 and 50 of the N.D.P.S.
\nAct?\n<\/p>\n
 (3) Whether the accused is entitled to the benefit of the amended provisions on the
\ngrouped that part of the trial has taken place after the commencement of the Amendment
\nAct on 2.10.2001?\n<\/p>\n
 9. Point No. 1:- I have carefully perused the evidence of P.W. 3, who was the
\nS.I. of Vengara Police Station. He has deposed about the receipt of information with,
\nregard to the sale of brown sugar in the premises of the accused’s house and about
\nthe forwarding of Ext. P5 report with regard to the said information to the official
\nsuperior, viz., Circle Inspector of Police. Serious attack is made with regard to the
\ngenuineness of Ext. P5 in so far as underneath the signature of the Sub Inspector, the
\ndate ‘28.5.1999’ is written, whereas the date of occurrence alleged in the case is
\n‘24.8.1999’. According to the learned counsel for the appellant, this shows that Ext. P5 is
\na document created subsequently to support the prosecution case and that there was,
\nin fact, no timely conveyance of the information to the official superior.\n<\/p>\n
 10. The discrepancy with regard to the date was put to P.W. 3 and his answer
\nwas that he made a mistake in interchanging the figures of ‘5’ and ‘8’. The learned
\ncounsel submits that even accepting the said version, what could have happened was
\nonly the writing of the date ‘28.4.1999’ and that there was absolutely no possibility of
\nthe date ‘28.5.1999’ creeping in. I find no merit in the said submission. Here is an
\noccurrence which took place in August, 1999 and there was absolutely no benefit
\nderived by the prosecution in creating a document with a date 3 months prior to that.
\nThat apart, the report itself starts with the specific statement that the information was
\nreceived ‘today, 24.8.1999’. Obviously, the report was written on 24.8.1999 which is
\nthe date of occurrence. There is an important aspect which supports this inference
\nand that is the fact that Ext. P5 copy of the report has reached the trial court on the
\nvery next day viz., 25.8.1999 as evident from the initials of the learned Special Judge
\nnear the seal of the Special Court. The contention that Ext. P5 is a subsequent
\ncreation and that it was done with the intention of creating evidence has therefore to
\nfail. The mistake in the date written at the bottom of Ext. P5 is hence inconsequential  <\/p>\n
 11. PW. 3 was further deposed that at about 2.30 p.m. he reached the portion of
\nthe road where the pathway leading to the house of the accused starts and found the
\naccused standing near an embankment available beside the pathway. On seeing the
\npolice jeep, the accused tried to slip away. He was detained and informed that he was
\nsuspected to be in possession of brown sugar; that his body was proposed to be
\nsearched; that he was entitled to have the presence of a Gazetted Officer or a Magistrate
\nto witness such search and also asked about his option in that regard. The accused
\ngave a negative reply which was recorded at the spot and got signed by the accused
\nand other witnesses. Ext. P1 contains the details of the questions put to the accused
\nand his answer. A perusal of Ext. P1 shows that before putting the question with
\nregard to the option of the accused, the accused was also made aware of his right
\nunder law for having the search conducted in the presence of a Gazetted Officer or a
\nMagistrate. I may immediately add that Ext. P1 is also a record that has reached the
\ntrial court on the very next day of occurrence. Ext. P1 provides corroboration to the
\nevidence of P.W. 3 with regard to the details of the questions put as a prelude to the
\nsearch conducted by him.\n<\/p>\n
 12. It was further deposed by P.W. 3 that the body search of the accused revealed
\nthe existence of a paper packet at the left pocket of the shirt worn by him. When
\nopened, it revealed a plastic cover within which brown sugar was found besides two
\ncylindrical metal tubes obviously an apparatus for facilitating inhalation of the brown
\nsugar. P.W. 3 has stated that the brown sugar so seized was found to be 2.5 grams in
\nweight when weighed at the spot. He also deposed about the other procedural
\nformalities done by him including preparation of Ext. P2 seizure mahazar which also
\nreached the learned Special Judge on the very next day.\n<\/p>\n
 13. P.W. 1 and 2 were independent witnesses cited to prove the occurrence.
\nBoth of them turned hostile. Ext. P3 series are the contradictions appearing in the
\nCase Diary statements of P.W. 1 and Ext. P4 series are similar contradictions in the
\nCase Diary statements of P.W. 2. The said contradictions show that the witnesses
\nhad switched over allegiance after the date of occurrence and were not speaking the
\ntruth before Court. It is significant to note here that even these witnesses have admitted
\ntheir signatures in all the contemporaneous documents including the seizure mahazar
\nand the paper with which the seized object was covered and sealed at the spot. It was
\non the basis of these items of evidence that the trial court originally entered the
\nconviction. However, it was seriously contended before this Court during hearing on
\n27.9.2001 that it was totally unsafe for the trial court to have relied upon the version of
\nthe searching official alone and that there was no proper corroboration available other
\nthan in the document. Reliance was also placed on the decision in Bhola Ram
\nKushwaha v. State of M.P. (2001 (1) SCC 35) in support of the contention that in
\nsimilar case where the evidence consisted of the sole testimony of the police officer,
\nthe Apex Court had granted the benefit of doubt on the facts of that case.\n<\/p>\n
 14. It was in these circumstances that this Court felt that the circumstances
\nwarranted collection of further evidence under Section 391(2) of the Cr.P.C. and directed
\nsuch evidence to be collected.\n<\/p>\n
 15. The evidence of P.Ws. 5 and 6 recorded pursuant to the above order afford
\nfull corroboration to the evidence of P.W. 3. The fact is that even without the evidence
\nof P.Ws. 5 and 6 this Court would have been justified in entering a conviction. The
\nadditional evidence was intended only to get further assurance with regard to the
\nculpability or otherwise of the accused.\n<\/p>\n
 16. P.W. 5 was a Police Constable who had accompanied P.W. 3 and he has
\ndeposed about the entire incident. So did P.W. 6, who was another Police Constable
\nin the party.\n<\/p>\n
 17. The learned counsel for the appellant submitted that it is not recorded that
\nany money or other object was available with the accused at the time when the seizure
\nwas effected and that the evidence of D.W. 1 shows that at the time when the accused
\nwas taken to the prison under remand a sum of Rs. 82\/- in a purse and a Western (sic)
\nwrist-watch were available with him. I do not think that the failure to record the
\ndetails of the objects which had no direct relationship with the crime in question in the
\nseizure mahazar has effected the veracity of the prosecution case. I conclude that
\nthere was sufficient justification for the trial court to find that the accused has committed
\nthe offence under Section 21 of the N.D.P.S. Act.\n<\/p>\n
 18. Point No. 2:- While dealing with Point No. 1, I have already referred to the
\nfact Ext. P2 is a contemporaneous document reporting the information under Section 42 of
\nthe N.D.P.S. Act. Even assuming that there is no concrete evidence to show that the
\noriginal of Ext. P5 had reached the official superior viz., P.W. 4 still the accused
\ncannot be found entitled to get an acquittal under Section 42 of the N.D.P.S. Act. The
\nreason is that the information that P.W. 3 got with regard to the accused was not that
\nhe was available in a building, conveyance or enclosed place, but that he was available
\nonly in the premises of his house. The accused was found beside the pathway leading
\nto his house and it was not an enclosed place. The decision in Abdul Azeez v. State
\nof Kerala (2001 (1) KLT 805) is precedent for the legal position that Section 42 would be
\nattracted only to cases where the information relates to the availability of the contraband
\nin a building, conveyance or enclosed place. The information in the present case
\nbeing not to the said effect, there was no question of compliance with Section 42 of the
\nN.D.P.S. Act at all.\n<\/p>\n
 19. While discussing Point No. 1, I have also found that Ext. P1 is a
\ncontemporaneous document and that the contents thereof amply prove the fact that
\nthe accused was made aware of his rights under Section 50 and also asked about his option,
\nwhereto a negative reply was given by the accused under his own signature. In fact,
\nExt. P1 is attested by P.Ws. 1 and 2 and even these hostile witnesses had admitted
\ntheir signatures not only in Ext. P1 but also in Ext. P2 mahazar. There is also oral
\nevidence of P.W. 3 which is corroborated by P.W. 5 and 6 on this aspect. In these
\ncircumstances, there is no violation of Section 50 of the N.D.P.S. Act also.\n<\/p>\n
 20. Point No. 3:- Section 41 of the Act 9 of 2001 which came into effect on 2.10.2001
\nreads as follows:\n<\/p>\n
 “41. Application of this Act to pending cases.-\n<\/p>\n
 (1) Notwithstanding anything contained in Sub-section (2) of Section 1, all cases pending before the
\nCourts or under investigation at the commencement of this Act shall be disposed of in
\naccordance with the provisions of the principal Act as amended by this Act and accordingly,
\nany person found guilty of any offence punishable under the principal Act, as it stood
\nimmediately before such commencement, shall be liable for a punishment which is lesser than
\nthe punishment for which he is otherwise liable at the date of the commission of such offence;\n<\/p>\n
Provided that nothing in this section shall apply to cases pending in appeal.\n<\/p>\n
 (2) For the removal of doubts, it is hereby declared that no Act or omission on the part of
\nany person shall be punishable as an offence which would not have been so punishable if this
\nAct has not come into force.”\n<\/p>\n
 It is a fact that the small quantity of brown sugar as on the date of occurrence
\nwas only 250 mg.; but it stands enhanced to 5 grams under the Amendment Act. The
\nconsequence thereof is that the quantum seized in the present case would have been
\na small quantity if only the detection was made after 2.10.2001.\n<\/p>\n
 21. Shri George Thomas M., the learned counsel for the appellant, is right in his
\nsubmission that the commercial quantity of brown sugar is 250 grams and for that
\nafter the amendment the minimum punishment of rigorous imprisonment for ten years
\nand fine of one lakh rupees could be given in the case of brown sugar only for possession
\nof quantum of not less than 250 grams. In Section 41 aforementioned it is specified in
\ncategoric terms that the amended provision would be applicable only to all cases
\npending trial as on 2.10.2001 and that it shall not apply to cases pending in appeal. The
\ncrucial question that arises therefore is whether as on 2.10.2001 the case was pending
\nbefore the trial court or before the appellate court. During hearing the learned counsel
\nfor the appellant drew my attention to Section 391(4) of the Cr.P.C. which provides that the
\ntaking of evidence under Section 391 shall be subject to the provisions of Chapter XXIII as
\nif it were an enquiry. Chapter XXIII relates to collection of evidence in inquiries and
\ntrials. The argument of the learned counsel for the appellant therefore is that the
\ncollection of evidence made by the trial court on 18.12.2001 pursuant to the order of
\nthis Court dated 27.9.2001 is actually an admission of evidence as though in an enquiry
\nunder Chapter XXIII in which case it has to be taken that part of the trial has taken
\nplace on 18.12.2001 and therefore the accused is entitled to the benefit of Section 41
\naforementioned.\n<\/p>\n
 22. I find no merit in the said contention. To appreciate the application of Section 41,
\nit is necessary to understand the scope and ambit of Section 391 of the Cr.P.C. which reads
\nas follows:\n<\/p>\n
 “391. Appellate Court may take further evidence or direct it to be taken.-\n<\/p>\n
 (1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks
\nadditional evidence to be necessary, shall record its reasons and may either take such
\nevidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court
\nis a High Court, by a Court of Sessions or a Magistrate.\n<\/p>\n
 (2) When the additional evidence is taken by the Court of Session or the Magistrate, it
\nor he shall certify such evidence to the Appellate Court, and such court shall
\nthereupon proceed to dispose of the appeal.\n<\/p>\n
 (3) The accused or his pleader shall have the right to be present when the additional
\nevidence is taken.\n<\/p>\n
 (4) The taking of evidence under this Section shall be subject to the provisions of Chapter
\nXXIII, as if it were an inquiry.”\n<\/p>\n
 23. This is a special provision to be rarely invoked by the appellate court. It
\nforms an exception to the general rule that an appeal must be decided on the evidence
\nwhich was before the trial court. Its manifest object is the maintenance of interests of
\njustice. Its invocation may be for the prevention of a guilty man’s escape through
\ncarelessness or ignorance on the part of the trial court in holding its proceedings as
\nalso for vindication of an innocent person wrongly accused where the trial court,
\nthrough some carelessness or ignorance, has omitted to record the evidence necessary
\nfor elucidation of the truth. The power to order such evidence is a discretionary
\npower. For invoking it, it is not necessary that it should be impossible to pronounce
\njudgment without additional evidence. It is a fact that if the additional evidence is
\nunfavourable to the accused, it would result in difficulty for the accused; but there is
\nnothing in the section which provides that the additional evidence can be taken only if
\nit favours the defence and not if it favours the prosecution.\n<\/p>\n
 24. The only question to be looked into by the appellate court before applying the
\nsection is whether it satisfies that the additional evidence is necessary in the interests
\nof justice. Such evidence may be recorded by the appellate court, if it is so inclined, or
\nit can be collected through the trial court. In either case the purpose is not to fill up the
\nlacuna in the available evidence; but to ensure that there would be no failure of justice
\nfor want of proper evidence. If the process of admitting further evidence is
\ncomparatively simple, the appellate court may collect the evidence itself. On the
\nother hand, if it is likely to be long and complicated, that is to say, requiring the
\nexamination and cross-examination of several witnesses on summons and marking of
\nexhibits, it is often desirable to get it through the trial court. In either case the collection
\nof evidence is by the appellate court and during the pendency of the appeal and not
\nafter its disposal. It cannot therefore be said that at the time when the trial court
\ncollected additional evidence the appeal had been disposed of for the purpose of Section 41
\naforementioned.\n<\/p>\n
 25. No re-trial was ordered in this case. It was keeping the appeal pending
\nbefore this Court that a direction was given to collect further evidence under Section 391(2)
\nof the Cr.P.C. Since Section 41 specifically states that the amended provisions shall not be
\napplicable to cases pending in appeal, there is no question of the present accused
\ngetting the benefit of the amended provisions in the Act. The case in hand has to be
\ndecided in accordance with law as applicable on 24.8.1999. Viewed from this
\nperspective, the quantum of brown sugar seized in this case cannot be taken as small
\nquantity. Nor can be punishment prescribed for possession of a quantity less than the
\ncommercial quantity, as it stands in Section 21 now, be applied to the accused.\n<\/p>\n
 26. In view of the above findings, the appellant loses his case. The conviction
\nentered against the appellant under Section 21 of the NDPS Act has to stand. The sentence
\nimposed is only the minimum prescribed by law as it stood on the date of occurrence
\nviz., 24.8.1999.\n<\/p>\n
 In the circumstances, the appeal is found to be without merit and it is dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Satyapalan vs State Of Kerala on 11 January, 2002 Equivalent citations: 2002 (1) ALT Cri 335, 2002 (82) ECC 783 Author: M H Nair Bench: M H Nair 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 […]<\/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-92459","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nSatyapalan vs State Of Kerala on 11 January, 2002 - 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\/satyapalan-vs-state-of-kerala-on-11-january-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Satyapalan vs State Of Kerala on 11 January, 2002 - 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