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# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE V.G.ARUN**
**WEDNESDAY, THE 12[TH] DAY OF JULY 2023 / 21ST ASHADHA, 1945 CRL.A NO. 112 OF 2016**
**AGAINST THE ORDER/JUDGMENT SC 455/2010 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - I, KASARAGOD APPELLANT/PETITIONER:**
A.HARIS, S/O.ANDUMAN, R/AT KADAVATH HOUSE, THALANGARA, THALANGARA VILLAGE, KASARAGOD DISTRICT. BY ADV SRI.T.G.RAJENDRAN
## **RESPONDENTS/COMPLAINANT:**
STATE OF KERALA REP. BY THE SUB INSPECTOR OF POLICE, KASARAGOD POLICE STATION, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA.
BY ADVS. GOVERNMENT PLEADER GOVERNMENT PLEADER
## **OTHER PRESENT:**
SR.PP.RENJITH GEORGE
**THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05.07.2023, THE COURT ON 12/7/2023 DELIVERED THE FOLLOWING:**
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## **V.G.ARUN J.**
------------------------------------Crl.Appeal No.112 of 2016 **---------------------------------** Dated this the 12[th] day of July 2023
## **JUDGMENT**
The appeal is filed challenging the judgment in SC No.455/2010 of the the Additional Sessions Court-I, Kasaragod, convicting the appellant for the offence punishable under Section 20(b) of the NDPS Act. The case originated from Crime No.300/2009 registered at the Kasaragod Police Station, on the allegation that, by about 7.45 PM on 22/4/2009, the Sub Inspector of Kasaragod Police Station(PW2) got reliable information that a person aged about 30 years is standing inside the bus waiting shed near Kasaragod Railway station with Ganja intended for sale. After submitting a report to the Circle Inspector of Police(PW5), PW2 proceeded to the spot and apprehended the appellant. Thereafter, the appellant’s body and the plastic bag in his hand were searched and Ganja recovered from the plastic bag. After collecting 50 gms of Ganja in two packets for the purpose of sampling, the remaining Ganja was weighed at 1.900 Kgs.
2. Before the trial court, PWs 1 to 5 were examined and Exts.P1 to P12 and MOs 1 to 6 marked. The trial court, on
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appreciation of evidence and consideration of the legal contentions, found the appellant guilty and thereupon, convicted and sentenced him to rigorous imprisonment for one year and fine of Rs.25,000/- with default sentence of two months.
3. Heard Adv.T.G.Rajendran for the appellant and Public Prosecutor Adv. Renjith George for the State.
4. Learned Counsel for the appellant, assailed the findings
of the trial court on the following grounds;
(i) The search based on prior information was conducted without adhering to the mandatory requirement of submitting a report to the superior officer prescribed in Section 42 of the Act.
(ii) The search and seizure was conducted in violation of Section 50 (1) of the Act.
(iii)The independent witnesses, alleged to have been present during search and seizure, were not examined.
iv) Even though two samples were taken from two packets, only one sample was sent for chemical analysis.
v). The arrest was not made by following the procedure
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## prescribed in **D.K. Basu v. State of West Bengal [1997 (1)SCC 416).**
5. In elaboration of the contentions, learned Counsel submitted that the prosecution had failed to produce evidence, either oral or documentary, to prove that PW2 had proceeded to the spot after submitting the report under Section 42 of the Act. The further contention is that the statement allegedly given by the appellant, waiving his right to be searched in the presence of gazetted officer or magistrate, does not satisfy the requirement of Section 50. Examination of only official witnesses, despite the search and seizure being conducted in the presence of independent witnesses casts doubts about the procedure adopted. The contraband was in two packets of one kilogram each and samples were drawn separately from the two packets, but only one sample was sent for chemical analysis.
6. Learned Public Prosecutor submitted that Ext.P7 report under Section 42 was sent at 7.35 p.m.on 22/4/2009 itself and receipt of the report is acknowledged by PW5, the superior officer.
7. The contention regarding violation of Section 50 is
countered by drawing attention to Ext.P2, signed statement of
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the appellant, foregoing the option of being searched in the presence of the gazetted officer or magistrate and permitting PW2 to conduct the search.
8. Referring to Ext.P4 seizure mahazar, it is pointed out that the contraband was in one packet and in abundant caution, two samples of 50 grams each was taken from that packet. Therefore, the forwarding of only one sample for chemical analysis is of no consequence.
9. The first contention, regarding failure to follow the procedure prescribed under Section 42(2), cannot be countenanced in the light of Ext.P7 intimation sent on 22/4/2009, before PW2 proceeded to the spot based on information received. The version of PW2 regarding the forwarding of Ext.P7 report is proved through the testimony of PW5, Circle Inspector that, Ext.P7 was received by him at 7.35 p.m on 22/4/2009.
10. The requirement under Section 50(1) of the Act is to make the suspect aware about his right to be examined before gazetted officer or magistrate. A perusal of Ext.P2 reveals that the appellant was made aware of his right and had opted to be searched by PW 2 himself. As such, the contention regarding
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violation of Section 50 is also liable to be rejected.
11. As regards the non-examination of independent witnesses, the explanation offered is that, one of the witnesses was abroad and the other could not be found in his address. The above explanation is thoroughly inadequate in cases of this nature. The inadequacy looms large when the manner in which the samples were dealt with from seizure onwards is carefully scrutinized. The image of the sample seal was not affixed on the seizure mahazar. Although samples were sent to court on 23/4/2009, the sample seals were produced only on 19/5/2009. The forwarding note under which the samples were sent from court to the Chemical Examiner shows two dates, 22/5/2009 and 29/5/2009. The sample was received by the Chemical Examiner only on 30/5/2009. No explanation is offered for the sample reaching the Chemical Examiner a day after it was dispatched from court. The constables who had taken the sample from the court for Chemical Examination is also not examined. The delay in producing of samples seals in court, coupled with the different dates shown on the forwarding note and the delay in the sample reaching the chemical examiner, definitely casts a doubt as to the authenticity of the sampling.
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12. In **Faijas's** case, a learned Judge of this Court has exposited about the purpose of affixing the impression of the specimen seal in the seizure mahazar and the consequence of non-production of the sample seal in court. Paragraphs 44, 45 and 46 of the judgment being of relevance is extracted hereunder;
“44. 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 reached the court without any tampering. A specific space is provided in the forwarding note for affixing the specimen of the seal affixed on the sample. The specimen of the seal is provided in the forwarding note 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. The recital in the chemical analysis report that the seal on the sample packet was intact and it tallied with sample seal provided alone is not sufficient to come to the conclusion that the very same sample taken by the detecting officer at the spot of the occurrence had reached the laboratory for analysis. It is usual
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that seal of the court would be affixed while sending the sample for analysis to the chemical examiner. Therefore, the sample seal mentioned in the chemical analysis certificate can also be the seal of the court. A comparison of the seal affixed on the sample packet with the specimen seal of the court will not give any assurance that the sample taken from the possession of the accused had reached the chemical examiner for analysis. Such an assurance would be possible only when the specimen of the seal affixed on the sample packet is provided to the chemical examiner for comparison. Such link evidence is missing in this case.
45. To put it in a nutshell, the unexplained delay in producing the seized substances before the court and absence of evidence as to how and in what condition the seized substances, including the samples, were kept in the police station till the date of their production in the court alongwith the circumstance that there is absence of evidence regarding the nature of the seal used by the detecting officer for sealing the sample packets, create doubt as to whether seizure of the substances was effected from the accused in the manner alleged
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by the prosecution. The benefit of that doubt shall be given to the accused.
46. In the light of the discussion above, the appellant is entitled to be acquitted solely on the ground mentioned in the preceding paragraph.”
13. Here, the impression of the seal was not affixed on the seizure mahazar and the seal was produced in court much after the samples were produced. The casual manner in which the samples were dealt with leaves this Court with no alternative, but to acquit the appellant by extending him the benefit of doubt.
In the result, the appeal is allowed, the impugned judgment is set aside and the appellant acquitted. The amount remitted by the appellant shall be refunded to him. The bail bond executed by the appellant and sureties will stand discharged.
Sd/-
## **V.G.ARUN**
## **JUDGE**
dpk
