Abbas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **FRIDAY, THE 21ST DAY OF JUNE 2019 / 31ST JYAISHTA, 1941** **CRL.A.No.173 of 2010** **AGAINST THE JUDGMENT DATED 20-01-2010 IN SC 13/2008 of ADDITIONAL SESSIONS JUDGE-I, PALAKKAD** ## **APPELLANT/ ACCUSED :** **ABBAS, PANDAMKODE, ACHUMOORTHIMANGALAM, PALAKKAD DISTRICT.** **BY ADV. SRI.NIREESH MATHEW** ## **RESPONDENT/ COMPLAINANT :** **STATE OF KERALA CIRCLE INSPECTOR OF POLICE, VADAKKENCHERRY POLICE STATION, PALAKKAD DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.D.CHANDRASENAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :** **CRL.A.No.173 of 2010** 2 ## **JUDGMENT** This appeal is against the judgment dated 20.01.2010 in SC.No.13/2008 on the file of the Additional Sessions Judge-I, Palakkad. The case was registered and charge sheeted for offence under Section 20(b)(i) of the NDPS Act. The prosecution case is that the accused was found possessing about 80 grams of ganja on the side of the public road near Thangam Theatre junction, at Vadakkencherry at about 5.30 p.m. On 21.09.1999, and the said offence which was committed in contravention of the NDPS Act, was detected by CW1, the S.I.of police attached to Vadakkencherry Police Station, and party and, therefore, the accused committed the offence punishable under the aforesaid section. The prosecution examined PWs 1 to 6 and marked Exts.P1 to P11. MO1 is also marked. After closing the prosecution evidence, the accused was questioned under Section 313 of the Cr.P.C. He denied all the incriminating circumstances brought against him. No defence evidence was adduced. After **CRL.A.No.173 of 2010** 3 hearing both sides, the court below found the accused guilty for offence under Section 20(b)(i) of the NDPS Act and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs.5,000/-, and in default of payment of fine to undergo rigorous imprisonment for one month vide judgment dated 20.01.2010. Set off is allowed. The prosecution has not adduced sufficient evidence to prove their case. There are non-compliance of the provisions of Sections 50, 55 & 57 of the NDPS Act. Challenging the conviction and sentence imposed by the court below, the present appeal has been preferred. 2. The main ground on the part of the appellant is that Section 55 of the NDPS Act makes it obligatory on the part of the officer concerned to affix his seal to the articles seized or to take samples from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station. Ext.P3 seizure mahazar shows that the sample packets were sealed with the seal containing the inscription "Madras Police O.P.". It is not stated in Ext.P3 that the aforesaid seal affixed to the **CRL.A.No.173 of 2010** 4 sample packet was the seal of CW1, the detecting officer. There is difference in the samples which is alleged to have taken from the custody of the appellant and Section 57 of the NDPS Act has not been complied with. Now the question is whether the conviction and sentence passed by the court below is sustainable or not. 3. The conviction and sentence was based on the oral testimony of PWs 1 to 6 and Exts.P1 to P11. According to the prosecution, the official witnesses as well as the independent witnesses supported the case of prosecution. The case of the prosecution is that the appellant was found in possession of about '80' grams of ganja on the side of the public road near Thangam Theatre junction at Vadakkencherry at about 5.30 p.m. on 21.09.1999 and the said offence was alleged to have committed by the appellant. CW1, who is the Sub Inspector of Police attached to Vadakkencherry Police Station was the detecting officer and he was no more at the time of taking evidence. The evidence of PW1, who was working as Motor Transport Officer at the A.R. Camp at **CRL.A.No.173 of 2010** 5 Palakkad on 04.02.2000, shows that he produced Ext.P1 vehicle diary dated 21.09.1999 of the police jeep with registration No.KL-01/3484 of the Vadakkencherry Police Station, which was kept in the A.R.Camp, before the Circle Inspector of Police. PW2 is the witness to Ext.P2 scene mahazar. PW3, who is the witness to Ext.P3 seizure mahazar prepared by CW1 has turned hostile to the prosecution. Ext.P4 is the portion of the statement of PW3 recorded by the police under Section 161 of the Cr.P.C. PWs 4 and 5 who were working as Head Constable and Police Constable respectively at Vadakkencherry Police Station on 21.09.1999, have deposed that on the aforesaid date, CW1 was working as the Sub Inspector of Police at Vadakkencherry Police Station, and on the aforesaid date, at 5.30 p.m., CW1 along with police party consisting of PWs 4 and 5 and other police personnel, left the police station and they reached the road near Thangam Theatre at Vadakkencherry at 5.45 p.m., and that they saw the incident involved in this case. The evidence of PW4 also shows that CW1 is no more. Ext.P5 is the F.I.R. and Ext.P6 **CRL.A.No.173 of 2010** 6 is the arrest memo. Ext.P7 is the property list and Ext.P8 is the report on the examination of the MOs, received from the Forensic Science Laboratory, Thiruvananthapuram. Ext.P9 is the scene plan prepared by the Village Officer. Ext.P10 is the report containing the information received by CW1, sent to the Circle Inspector of Police, Vadakkencherry, the immediate official superior of CW1. PW6, who is the witness to Ext.P3, is turned hostile to the prosecution. Ext.P11 is the statement of PW6 recorded by the police under Section 161 of the Cr.P.C. MO1 is the packet containing the sample and the balance of the ganja. 4. The definite case of the prosecution is that CW1 had received an information that the appellant was doing business on the ganja. Accordingly he prepared Ext.P10 report and sent to the Circle Inspector of Police in compliance of Section 42 of the NDPS Act. Immediately after that, CW1 along with the police party consisting of PWs 4 and 5 and other police personnel, reached the public road near Thangam Theatre at Vadakkencherry at 5.45 p.m. The accused was found standing on the road in front **CRL.A.No.173 of 2010** 7 of the shop by name C.P. Electricals. CW1 questioned the accused and he informed the accused that he wanted to search his body and also informed him that the appellant is entitled to require that the search of the person should be conducted in the presence of a Gazetted Officer or a Magistrate. According to the prosecution, the appellant is denied to have the presence of a Gazetted Officer or a Magistrate. Accordingly CW1 has conducted the body search of the appellant in the presence of other witnesses and a packet was taken out from the tucking of the cloth at the waist of the accused. On inspecting the said packet, CW1 found that it was ganja. Accordingly, he arrested the appellant. When CW1 and party proceeded to the place of occurrence, PW3 on the request of CW1, accompanied the police party to the place of occurrence. As per the request of CW1, PW3 weighed the ganja and found that the total weight of the ganja was 80 grams. Out of the 80 grams, he has taken 25 grams each and kept in two separate packets as sample and the balance ganja were sealed and labelled. **CRL.A.No.173 of 2010** 8 5. According to the prosecution, CW1 has prepared Ext.P3 seizure mahazar in which CW1 and the witnesses put their signatures. PW4 also signed Ext.P3. The MOs were taken into custody under Ext.P3. After that, CW1 along with the accused and MOs reached the police station. He has also stated that MO1 contains the balance of ganja and the samples received back from the laboratory. 6. In this case, it is peculiar to note that CW1, the detecting officer is no more and the investigating officer is also no more. The main detection was conducted by CW1. So in order to prove the detection of CW1, PW4 was examined who was familiar with the signature of CW1. According to his evidence, Exts.P5 and P6 were prepared by CW1. CW1 has produced the accused and MOs in the court along with Ext.P7 property list. Subsequently, CW14, the Circle Inspector of Police, Vadakkencherry conducted the investigation in this case. CW14 recorded the statements of the witnesses and he submitted the forwarding note to the court requesting to send the **CRL.A.No.173 of 2010** 9 samples for chemical analysis. PW3 is the person who has weighed the ganja and separated the sample. According to his version, he has weighed 25 grams of ganja each and packed in separate packets for the purpose of samples. According to him, the total weight of the ganja was 80 grams. On deposition, PW3 has stated that as insisted by the police, he has taken 25 grams each in two packets and the balance 30 grams of ganja was separately taken in another packet. The evidence of PWs 4 and 5 shows that CW1 along with PWs 4 and 5 reached the place of occurrence and found the accused having nearby road and 80 grams of ganja were seized from his waist. According to the evidence of PWs 4 and 5, the ganja was packed and sealed by CW1 and he took the MOs into custody under Ext.P3 seizure mahazar prepared by him. As per the evidence of PWs 4 and 5, CW1 arrested the accused after preparing Ext.P6 scene mahazar. Subsequently, CW1 along with the accused and the MOs reached the police station and registered this case. It is very important to note that the sample packets and other seized contraband **CRL.A.No.173 of 2010** 10 articles were produced before the court on 22.09.1999, as evidenced from Ext.P7 property list. According to PW4, CW14, the Circle Inspector of Police, submitted the forwarding note to the court requesting to send the samples for chemical analysis. CW14, who is the investigating officer is no more, as evidenced from the endorsement made on the summons issued to him. 7. The learned counsel for the appellant has mainly argued on the point that the weight of the contraband article in the sample varies while received in the laboratory. Ext.P8 report received from the Forensic Science Laboratory shows that one sealed parcel, sealed with impression of a seal, corresponding with the seal impression forwarded, was received in the Forensic Science Laboratory on 30.10.1999 in connection with Crime No.327/1999 of Vadakkencherry Police Station and that the said parcel contained two sealed brown paper packets sealed with the impression of a seal which tallied with the seal impression given in the forwarding note. It is also evident from Ext.P8 that the said two packets are noted in **CRL.A.No.173 of 2010** 11 Ext.P8 at item Nos. 1 and 2 and that item No.1, an envelope contained one heat sealed polythene cover containing 27.294 grams of dry flowering and fruiting tops and seeds of certain plants, and item No.2 contained one sealed envelope which contained one heat sealed polythene cover containing 25.460 grams of dry flowering and fruiting tops and seeds of certain plants. Ext.P8 contains the result of examination showing that Mos, item Nos. 1 and 2 were ganja. 8. Now the learned counsel for the appellant has challenged the genuinity of the sample which was alleged to have taken by the detecting officer on the spot. As per the evidence of PW3, he has weighed the ganja as per the request of the detecting officer on 21.09.1999 and found that it contains 80 grams. Then he has taken 25 grams each and weighed separately and taken as a sample in two packets. The rest of the ganja was weighed as 30 grams. So, in total the weight of the ganja was 80 grams. He has also signed over Ext.P3 mahazar. Ext.P3 mahazar also would state that the detecting officer has taken 25 **CRL.A.No.173 of 2010** 12 grams of sample in separate packets and the balance 30 grams of ganja was separately weighed and taken in a plastic cover and sealed it. So, as per the evidence of PW3 as well as Ext.P3 mahazar, the prosecution has got a case that they have taken sample of 25 grams each from 80 grams of ganja and separately sealed. The chemical analysis report would show that the laboratory has received two packets for examination and one packet contained about 27.294 grams and another packet contained about 25.460 grams. Now there is a disparity in the weight at the time the sample was reached in the forensic laboratory. 9. In this connection, it is peculiar to note that the alleged detection was on 21.09.1999 and the sample was produced before the court only on the next day. According to the prosecution case, this sample and the balance contraband articles were in the custody of the detecting officer till the next day of the detection. Further, the prosecution has failed to produce the forwarding note with the specimen seal. So the delay in producing the **CRL.A.No.173 of 2010** 13 sample before the court as well as the non-production of forwarding note with sample seal affixed on the samples will be sufficient enough to disprove the case of the prosecution. The lower court has held that the slight disparity in the weight of the sample will not be sufficient to find that the prosecution has not proved the case, as alleged. 10. In the decision reported in Kumaran P. v. State of Kerala and another [2016 (5) KHC 632], the Apex Court has held that the sample which was taken from the spot has to be produced before court in time and if there is delay, the prosecution has to explain what prevented them from producing the sample before court. In the absence of the explanation by the prosecution, the accused is entitled to the benefit of doubt. 11. The learned counsel for the appellant has pointed out that the prosecution has not produced the forwarding note and it is not available in the file also. In this connection, I quote a decision held in _**Valsala v. State of Kerala [1993 (2) KLT 550 (SC)]**_ in which it is held **CRL.A.No.173 of 2010** 14 that the article seized appears to have been not kept in proper custody and proper form so that the court can be sure that what was seized only was sent to the Chemical Examiner. In Sasidharan v. State of Kerala (Judgment dated 01.01.2007 passed by this Court in Crl.Appeal No. 1128 of 2006), it is held thus: _“There is also no evidence before court to show the date of despatch of the sample. In a case of this nature, the prosecution can succeed only if it establishes that the sample which had changed several hands had ultimately reached the hands of the chemical examiner in a tamper proof condition and that it was the same sample which was drawn from the contraband liquor allegedly seized from the accused. There is absolutely no link evidence to establish that a sample was drawn from the jerry can allegedly seized from the accused and that the said sample reached the hands of the Chemical Analyst in a tamper proof condition. The conviction recorded and the sentence passed by the court below overlooking the above vital aspects cannot be sustained and are accordingly dislodged.”_ **CRL.A.No.173 of 2010** 15 12. The same decision has been reiterated in _**State of Rajasthan v. Daulath Ram (AIR 1980 SC 1314)**_ . 13. _**In Krishnamma v. State of Kerala**_ [Judgment dated 09.10.2015 in Crl.Appeal No. 214 of 2006], it is held that the absence of sample seal in the space provided in the copy of the forwarding note is sufficient reason for presuming that the sample seal is not provided in the Original Forwarding Note. 14. During evidence, the forwarding note has been seen marked also. Unless and until the forwarding note is produced, it is difficult to come to the conclusion that the sample seal produced is in tally with the seal affixed on the sample bottle which was sent for chemical analysis. 15. Therefore, I have no hesitation to hold that the prosecution has failed to prove that the sample which was alleged to have seized from the possession of the appellant was the same produced before this Court and the delay in producing the sample as well as the non- **CRL.A.No.173 of 2010** 16 production of the forwarding note with sample seal affixed on it is fatal to the prosecution. In the result this appeal is allowed. The conviction and sentence imposed on the appellant in S.C.No.13/2008 on the file of the Additional Sessions Judge- I, Palakkad is hereby set aside. He is set at liberty forthwith. The bail bond, if any executed, shall stand cancelled. Sd/- **ANNIE JOHN, JUDGE** RKM