A. Farook v. State of Kerala

**Crl.Appeal.No.2962 of 2008 1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE VIJU ABRAHAM TUESDAY, THE 26[TH] DAY OF SEPTEMBER 2023 / 4TH ASWINA, 1945 CRL.A NO. 2962 OF 2008** **AGAINST THE JUDGMENT DATED 18.12.2008 IN SC 1074/2005 ON THE FILE OF ADDITIONAL SESSIONS JUDGE-I,PALAKKAD** ## **APPELLANT/ACCUSED:** A.FAROOK, AGED 37 YEARS, S/O.ASSANAR, WARD NO.31, BHARATH NAGAR, NURANI, PALAKKAD DIST. BY ADV SRI.NIREESH MATHEW ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA INSPECTOR OF POLICE, PALAKKAD TOWN SOUTH POLICE, STATION, PALAKKAD DISTRICT, REPRESENTED BY PUBLIC, PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV PUBLIC PROSECUTOR RENJIT GEORGE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **Crl.Appeal.No.2962 of 2008 2** ## **VIJU ABRAHAM,J** **------------------Crl.Appeal.No.2962 of 2008 ------------------------------------Dated this the 26[th] day of September, 2023** ## **JUDGMENT** The appellant is the accused in SC No.1074 of 2005 on the file of the Additional Sessions JudgeI, Palakkad alleging commission of offence punishable under Section 20(b)(ii)(B) of the NDPS Act. 2. The prosecution case is that on 11.01.2005 at about 5 pm., the accused was found in possession of 1.055 kgs of ganja at a lane leading to Narikuthi, lying on the northern side of the compound of Palakkad Town Railway Station in a plastic carry bag, for sale without any valid documents. 3. On the side of the prosecution, PWs.1 to 6 were examined and Exts.P1 to P9 were marked and MO1 and MO2 were identified. 4. The trial court found the accused guilty and convicted and sentenced him to undergo rigorous imprisonment for 2 years and to pay a ## **Crl.Appeal.No.2962 of 2008 3** fine of Rs.20,000/-, and in default of payment of fine, to undergo rigorous imprisonment for 2 months. Set off was also allowed by the trial court. 5. Aggrieved by the said conviction and sentence, the present appeal has been filed. 6. The learned counsel appearing for the appellant raised various contentions assailing the conviction and sentence passed by the trial court. Ext.P1 is the arrest memo dated 11.01.2005 in which the crime number is seen entered. PW1 who is the detecting officer deposed that the accused was arrested at 5.15 p.m. and Ext.P1 is the arrest memo prepared at the time of arrest. He further deposed that he went to the Town North Police Station along with the contraband and the accused and a crime was registered and the FIR in the said crime is marked as Ext.P3. It is to be seen that FIR was registered subsequent to the arrest and after reaching the police station. So the presence of the crime number in the arrest memo is a suspicious circumstance which ought to have been ## **Crl.Appeal.No.2962 of 2008 4** explained by the prosecution, which has not been done in the present case. This Court in _**Rafeeque v. Sub Inspector of Police [2020 (4) KLT 188]**_ has held that presence of the crime number of the case in the arrest memo prepared by the detecting officer at the spot of the occurrence, in the absence of any explanation offered by the prosecution give rise to either of the two inferences, that the first information was recorded prior to the alleged recovery of the contraband or that the number in the first information report was inserted in the arrest memo after its registration and that in both situations it seriously reflects upon the veracity of the prosecution version of the incident and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution. Therefore, since no explanation is offered by the prosecution regarding the same, it creates doubt about the manner in which the seizure and arrest were effected. 7. Another contention raised by the learned ## **Crl.Appeal.No.2962 of 2008 5** counsel for the appellant is regarding violation of Section 57 of the NDPS Act which mandates that whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior. Evidence of PW1 would reveal that a report has been submitted to the Assistant Superintendent of Police, but the said information provided to the superior officer has not been produced and marked in this case. Appellant relies on the judgment in _**Sidhik v. State of Kerala (2018 (4) KLT 1257)**_ wherein this Court has held that non compliance of mandatory requirement under Section 57 of the NDPS Act is fatal to the case of the prosecution in as much as there is no proof produced to show that the mandatory provision of Section 57 of the NDPS Act had been complied with. Paragraph 12 of the judgment reads as follows: 12. _Section 57 of the NDPS Act provides that whenever any person makes any arrest or seizure under the Act, he shall make a full report of all the particulars of such_ ## **Crl.Appeal.No.2962 of 2008 6** _arrest or seizure to his immediate official superior within 48 hours next after such arrest or seizure. The detection in this case was made by PW5, the Excise Inspector. Ext.P17 is said to be the report sent in this case under S.57 of the NDPS Act. This is in fact a report sent by the Circle Inspector of Excise to the Assistant Commissioner of Excise. Instead of the Excise Inspector sending such a report to his immediate superior, the Excise Circle Inspector, who took over investigation, sent a report to the Assistant Excise Commissioner. This is not what is prescribed under S.57 of the NDPS Act. The report submitted under S.57 of the NDPS Act must contain all the details of the detection process including the place searched, the manner of search, the compliance of the requirements under Ss.42 and 50 of the NDPS Act, the details of the contraband seized on arrest, the details of the person arrested on search, the date and time and also the other details of search, the quantity of the contraband seized, the process of collecting sample from the total contraband etc. Such requirements and details are not seen in the Ext.P17 report. If at all, the details therein can be accepted as sufficient as substantial compliance, the material question is whether it can be accepted as the report sent by the Detecting officer to his immediate official superior. The Detecting Officer in this case is PW5, but the said report was sent by the Excise Circle Inspector. A different person is not expected to send a report under S.57 of the NDPS Act, and a superior officer other than the immediate official superior of the detecting officer, is not expected to receive such report. There is no explanation why the Detecting officer did not send the required report to his immediate official superior, or how the Circle Inspector who took over investigation happened to send such a report to the Assistant Excise Commissioner. I find gross non-compliance of the mandatory provisions of S.57 of the NDPS Act in this case._ ## **Crl.Appeal.No.2962 of 2008 7** In **Sidhik’s** case cited supra, the court held that there is noncompliance of Section 57 in view of the fact that Section 57 report has been sent by an incompetent person and further that none of the details as mandated in Section 57 of the Act are not seen in the report. But in the present case, even Section 57 report has not been produced and marked by the prosecution to prove compliance of the said mandatory provision. It is settled law that the accused cannot be convicted if there is total noncompliance of statutory requirement. In view of the noncompliance of Section 57 of the Act, the benefit of doubt should go in favour of the accused. 8. Another contention raised by the appellant is that even going by the evidence of PW1, he was working as Circle Inspector of Police, Palakkad Town North Police Station and that the offence occurred near the Town Railway Station, which is coming under the territorial jurisdiction of Palakkad Town North Police Station. It is seen ## **Crl.Appeal.No.2962 of 2008 8** that the final report has been filed by PW6, who is the Circle Inspector of Palakkad South Police Station and he is totally incompetent to file a final report in this case, as the offence has not taken place within the territorial jurisdiction of Town South Police Station. As per G.O. (MS)No.168/92/TD dated 20.10.1992, all officers above the rank of Sub Inspectors of the Police Department are competent to file complaints in respect of offences under the NDPS Act before the Special Courts within the area of their respective jurisdiction. Admittedly, the offence occurred within the jurisdictional limit of Palakkad Town North Police Station, whereas the final report has been filed by the Circle Inspector of Palakkad South Police Station. No explanation has been offered by the prosecution as to how PW6 is empowered to file the complaint in the present case. Therefore, it has to be held that the complaint has been filed by an officer not competent to file the same. 9. Further contention raised by the learned ## **Crl.Appeal.No.2962 of 2008 9** counsel for the appellant is that no specimen impression of seal is affixed on Ext.P2 seizure mahazar nor the description of the seal affixed is mentioned therein. Yet another contention raised by the appellant is that no forwarding note is seen produced and marked in this case, which also fatal to the case of the prosecution. The purpose of putting the specimen seal impression in the seizure mahazar is to give an opportunity to the court to verify the same and satisfy that the seized substances reach the court without any tampering. The specimen seal is provided in the forwarding note so as to enable the chemical examiner to compare it with the seal on the sample and come to the conclusion that it reached the laboratory without any tampering. In this case, no specimen seal is seen affixed in the seizure mahazar and the forwarding note itself is not produced and marked. This court in **Vijayan v.** **State of Kerala, 2021 (5) KLT 321,** has enumerated the steps to be followed by the officer collecting the sample, the Thondy Clerk who is authorized to ## **Crl.Appeal.No.2962 of 2008 10** receive the thondy and the measures to be ensured by the chemical examiner and held that the specimen seal shall be affixed on the mahazar, sample bottle, bottle containing the remaining part of the contraband and the forwarding note and further held that while collecting sample the officer shall describe the nature of the specimen seal in the mahazar. In **Nadarajan v. State of** **Kerala, 2020 (3) KLT OnLine 1030** , it is held that when the specimen seal is not affixed on the seizure mahazar and in the forwarding note (in the present case no forwarding note is produced and marked), there is no assurance that the very same sample which was allegedly drawn at the spot of occurrence was produced before the court and sent for analysis as per the forwarding note and it has reached the laboratory in a tamper proof condition and tested there. A similar view was taken by this court in **Gopalan v. State of Kerala** , **2016 (3) KLT SN 24, Prakasan v. State of Kerala (2016 (1) KLT SN 89 (C.No.96),** and **Ramachandran v. State of Kerala, 2021 (1) KLT 739.** A similar view was ## **Crl.Appeal.No.2962 of 2008 11** taken by this court in **Moothedath Sivadasan v. State of Kerala, 2021 (1) KLT 744** and held that since no specimen impression of seal is seen affixed in the seizure mahazar it is very difficult to hold that the sample of the contraband allegedly seized from the accused has in fact reached the Chemical Examiner for analysis. This court in **Sasidharan v. State of** **Kerala, 2007 (1) KLT 720** has considered and emphasized the legal obligation cast on the prosecution to prove that the sample allegedly seized from the accused eventually reached the hand of the chemical examiner in a tamper-proof condition. Relying on the judgment of the Apex Court in **State of Rajasthan v. Daulat Ram, AIR** **1980 SC 1314** , this court in **Sasidharn** ’s case supra held that when the sample changed several hands before reaching the chemical examiner, the prosecution has to necessarily examine the various officials who handled the sample to prove that while in their custody, the seal of the sample has not been tampered with. The Apex Court in **Vijay** **Crl.Appeal.No.2962 of 2008 12** **Pandey v. State of U.P., AIR 2019 SC 3569** has held that mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself and that the sample seized and one tested are to be correlated. A similar view was taken by this court in **Udayan v. State of Kerala, 2023 (1) KLT 371.** In view of the lacuna pointed out above, it is to be held that the prosecution could not establish the link evidence connecting the accused with the contraband seized and the sample analysed in the laboratory and in the said circumstances, the appellant is entitled to the benefit of doubt. 10. The above vital aspects were not considered by the courts below while appreciating the evidence and consequently convicting and sentencing the appellant. Therefore, the conviction and sentence imposed by the court below cannot be sustained. In the result, the Crl.Appeal is allowed, setting aside the conviction and sentence passed by the court below under Section 20(b)(ii)(B) of ## **Crl.Appeal.No.2962 of 2008 13** the NDPS Act and the appellant/accused is acquitted of the charges levelled against him. The bail bond shall stand cancelled and he is set at liberty. Needless to say, if the appellant/accused has deposited any amount before the trial court pursuant to an order passed by this Court, the same shall be refunded to the appellant in accordance with the law. sd/- **VIJU ABRAHAM, JUDGE** pm