Abdul Salam v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **SATURDAY, THE 20TH DAY OF JANUARY 2018 / 30TH POUSHA, 1939** **CRL.A.No. 1145 of 2015** **AGAINST THE ORDER/JUDGMENT IN SC 66/2014 of SPECIAL COURT (NDPS ACT CASES), VATAKARA** **CRIME NO. 571/2014 OF KOTTAKKAL POLICE STATION , MALAPPURAM** ## **APPELLANT(S)** **ABDUL SALAM, S/O. MOHAMMED KUTTY** **C-NO.740/15, CENTRAL PRISON, KANNUR** **BY ADV.SHRI.P.P.PADMALAYAN (STATE BRIEF)** **RESPONDENT(S):** **STATE OF KERALA** **BY PUBLIC PROSECUTOR SMT. K.K. SHEEBA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **shg/** ## **K.P.JYOTHINDRANATH, J.** ## **----------------------------------Crl.A.No. 1145 OF 2015** ## **--------------------------------------** Dated this the 20[th] day of January, 2018 ## **JUDGMENT** This is a jail appeal filed challenging the conviction and sentence in S.C.No.66/2014 on the files of the Court of the Special Judge (NDPS Act Cases), Vatakara. The conviction is under Section 20(b)ii(B) of Narcotic Drugs and Psychotropic Substances Act (herein after referred to as “NDPS Act”). The appellant is sentenced to undergo rigorous imprisonment for seven years and also to pay a fine of Rs.1,00,000/- (Rupees One Lakh Only), with default rigorous imprisonment for one year. 2. The facts necessary for disposal of this case is as follows: On 16.06.2014, at about 18.20 hours, the Sub Inspector of Police, Kottakkal got a secret information to the effect that near to Virad Bar, a person carrying a red coloured plastic cover is in possession of ganja. The said information was recorded in the G D and the report was sent to his superior officer i.e. **,** Circle Crl.A.No.1145 of 2015 2 Inspector of Police. Thereafter, the detecting officer, along with police party reached at the spot, informed the appellant of his intention to search the body and further informed him regarding his right under Section 50 of the NDPS Act. Thereafter search conducted and found 1.480 Kg of ganja in the plastic bag carried by him. Sample was collected, appellant was arrested, and in respect of the same, seizure mahazar was prepared. Appellant was brought to the police station and crime was registered. A report, as contemplated under Section 42, was also sent. After investigation, charge filed. Prosecution altogether examined seven witnesses and Exts.P1 to P11 were marked. MO1 and 2 were also identified. After appreciating the evidence, the court below convicted the accused and sentenced as stated above. The challenge is against the said conviction and sentence. 3. When the appeal came up for hearing, 3 Crl.A.No.1145 of 2015 Adv.Sri.P.P.Padmalayan appearing as State Brief, submitted before this Court that, here is a case, where police due to prior animosity, implicated the appellant in a false case and created false evidence. It is the submission of the learned Counsel that, this aspect will be evident from the stand of the appellant, while he was questioned under Section 313 of Cr.P.C before the trial court. He specifically stated before the court that earlier, there was a case against him, in which he was acquitted by the trial court and due to that reason, again a false case has been foisted. To substantiate the submission of the learned Counsel, the learned Counsel submitted before this Court that the allegation against the appellant is that he had committed a grave and a serious offence, ie, he has violated the provisions of NDPS Act. But it is a fact that, when the crime as alleged is very serious, there should be scrupulous observation of provisions therein. In this case, as Sub Inspector of Police is the detecting Crl.A.No.1145 of 2015 4 officer, his case is that appellant was seen with a plastic bag containing ganja. The positive case of the detecting officer is that, he got prior information and thereon the detection was made. His case is that the appellant did not demand to be searched in front of a Gazetted Officer or a Magistrate. In support of the same, the prosecution is highlighting Ext.P2. But a perusal of the same will show that he was not actually given such a consent or there is compliance of the requirement under Section 50 of NDPS Act. It is the submission made before this Court that the information given as per Ext.P2 is that “\n§Ä¡v \n§fpsS tZlw ]cntim[n¡pó kabw Hcp KkäUv DtZymKkvYsâtbm Hcp aPnkvt{Sänsâtbm kmónZv[yw Bhiys¸Smw ”. But as per Ext.P4, seizure mahazar, the information given is that “\n§fpsS ssIhiapÅ Ihdnð IômhmsWóv kwibn¡póp, Rm³ \n§fpsS tZl]cntim[\ \S¯m³ t]mIpIbmWv. \n§Ä Bhiys¸Spó ]£w Hcp aPnkvt{Sänsâtbm, KkäUv Crl.A.No.1145 of 2015 5 Hm^okdpsStbm kmónZv[yw Bhiys¸Sm³ \n§Ä¡v AhImiapïv”. It is the submission of the learned Counsel that basically, these two statements will show that there is no compliance of the requirement of Section 50 of NDPS Act. The right of the appellant was never informed to him and further it can be seen that as per Ext.P2, it is only stated that he can demand for the presence of a Gazetted officer or Magistrate. Ext.P4 will show that there was actually no information given as contemplated under Section 50 of the NDPS Act and it can be further seen that there is nothing in Ext.P2 to show that he ever expressed that the presence of a Gazetted Officer or a Magistrate is not required. It will only show that there was a consent given to search his body. Under such circumstances, when the strict compliance of Section 50 is not therein, the Court should have looked whether there is any other independent evidence available to corroborate the seizure. Crl.A.No.1145 of 2015 6 PW7, even though supported the prosecution, categorically submitted before the Court that there was four persons in the police party, whereas, the stand of PW1 was that, only three persons were present. Apart from the same, as per the evidence of PW7, the weighing of the seized articles was made not from therein. The accused and contraband was taken from therein. Whereas, the evidence of PW1 was that, a weighing balance was brought therein and weighed. When the independent evidence is not corroborating the evidence of PW1, in the background of the strict non-compliance of Section 50, it will go to the root of the case and the appellant will be entitled for benefit of doubt, in the light of the decision of the Constitutional Bench of the Hon'ble Appex Court in _**Vijayasingh Chandubaijadega v. State of Gujarat reported in 2011(1) SCC 609.**_ The concept of substantial compliance is not applicable. In respect of the non compliance of Section 50 of 7 Crl.A.No.1145 of 2015 the NDPS Act, the appellant will be entitled for an acquittal. 4. The learned Public Prosecutor submitted before this Court that here is a case, where almost 1.5 Kg of ganja was seized from the possession of the accused. The time of information was 18.20 hours on 16.06.2014. After getting information, recorded the information and reported to the Senior officer and the detecting officer rushed to the scene and seized the articles, surely after compliance of Section 50. In this case, he was made aware of his right under Section 50 of the NDPS Act. After making aware of the same, if the presence of the Gazetted Officer or the Magistrate is required, it is the duty of the appellant to raise the said demand. Ext.P2 will show that such a demand was not made by the appellant. Under such circumstances, this is a case of strict compliance of Section 50 of NDPS Act. 5. In respect of the next point, it is submitted that, Crl.A.No.1145 of 2015 8 there is nothing to show that, a false case was foisted. It is also the submission of the learned Public Prosecutor that, in this case, the quantity of ganja seized is 1.480 Kg and further more, his submission is that, he was earlier involved in other crimes will only show the character of the appellant. Surely, his case is that he was acquitted. There is nothing to show that the same police officer who detected the earlier crime is the detecting officer herein. Under such circumstances, a bald assertion of the appellant that, a false case was foisted against him will not stand. It is to be remembered that here is a case where the independent witness to the seizure basically supported the prosecution. The variance or minor contradictions in his evidence will only fortify the fact that he is not a tutored witness and his evidence is reliable. The fact that he was present at the time of detection can be accepted, it will show that the case of the detecting officer that, contraband was 9 Crl.A.No.1145 of 2015 seized from the possession of the appellant is seen corroborated. 6. After hearing the learned counsel Sri. P.P. Padmalayan and the learned Public Prosecutor, I perused the evidence in this case. PW1 is the Sub Inspector of Police who was the detecting officer. He deposed before the court that he got an information that a person was seen in front of Viradu Bar carrying ganja in a red plastic cover. He further deposed that it was recorded in the G.D. and in compliance of Section 42, a report was given to the Circle Inspector who was in charge and the said report was marked as Ext.P1. He further deposed that there is an endorsement to the effect that it was received at 10 a.m on 17.6.2014. He further deposed that he started at 18.30 hours from the police station along with police constables, Ratheesh and Ramesh and also taking an investigation kit. He found a person about 70 mtrs away from Crl.A.No.1145 of 2015 10 the bar, carrying a red cover. He restrained him and enquired about his name and address and further identified the accused from the court as the person who was found therein on that day. He further deposed that he expressed his suspicion and intention to conduct the body search and further informed him about his right of being searched in front of a magistrate or a gazetted officer. He further deposed that the accused told him that he has no objection in conducting search by him and gave a consent letter to that effect. The said consent letter is marked as Ext.P2. Accordingly, search was conducted and it was found that there was ganja in the plastic cover. Appellant he was arrested and an arrest memo as well as an inspection memo prepared. His further evidence is that a balance was brought from the nearby K.M. Stores belonging to one Moossakutty. It was found that ganja was having a total weight of 1.500 kgs whereas the actual ganja was 1.480 kg. He further deposed that Crl.A.No.1145 of 2015 11 50 gm. was taken as sample in two packets and it was labelled and sealed. He further deposed that the balance, 1.380 kg ganja was packed and sealed. He further deposed that from the pocket of the shirt of accused, 2 hundred rupee notes were also seized and a seizure mahazar was prepared. The said mahazar was marked as Ext.P4. He reached at the police station and a crime was registered for an offence under Section 20(b)ii(B) of NDPS Act and the FIR is marked as Ext.P5. He further deposed that a report under Section 57 of NDPS Act informing the arrest of the accused to the superior officer was also given and the said report was marked as Ext.P6. It was received by the Circle Inspector on the next day at 10.05 a.m. The property list through which the contraband was produced before the court was marked as Ext.P7. On the next day, accused was produced before the Circle Inspector and the Circle Inspector continued the investigation. He also marked the ganja seized from the Crl.A.No.1145 of 2015 12 accused. 7. PW2 is an attestor to the scene mahazar, Ext.P8. PW3 is the Special Village Officer who prepared the site plan which was marked as Ext.P9. PW4 is a Police constable who was present along with the S.I. at the time of detection. He deposed regarding the seizure and sampling. PW5 is the C.I. of Police who conducted the investigation in this case. He deposed regarding the receipt of report under Section 57 of the NDPS Act. PW6 deposed regarding the part investigation he had conducted. PW7 is an independent witness who deposed before the court that he was present when the police restrained the appellant and conducted the body search. He also deposed regarding the sampling. 8. As already highlighted, in this case, the main argument advanced by the counsel appearing for the appellant is regarding the non- compliance of Sections 42 and 50 of the Crl.A.No.1145 of 2015 13 NDPS Act. As per the submission of the learned counsel, the whole case itself is unbelievable as the version about the weighing of article by PWs 1 and 4 varies. As per the evidence of PW1, a balance was brought to the spot and weighed, whereas, as per the evidence of the independent witness, the contraband was taken to the shop and weighed. As per the submission of the learned counsel, this is a not a minor contradiction or variation. But when the offence alleged is such a grave in nature and when the corroboration is not getting from the independent sources, it should be given due consideration in appreciating the materials. Surely, there is force in the submission of the learned counsel. But at the very same time it is to be remembered that as per the evidence regarding detection, there was no contradiction. If there is some variation in respect of weighing the article that will not affect the evidence regarding detection. Crl.A.No.1145 of 2015 14 9. The next point raised is regarding the compliance of Section 50 of the NDPS Act. In this regard the stand of the learned counsel is that as per consent letter, even though it is stated therein that “ÈßBZAí ÈßB{áæ¿ çÆÙÉøßçÖÞÇßAáK ØÎÏ¢ ²øá ·ØxÁí ©çÆcÞ·ØíÅæaçÏÞ ²øá μßØíç¿xßæaçÏÞ ØÞKßic¢ ” . ¦ÕÖcæM¿Þ¢ There is nothing to show that the consent was given, waiving that right. But it is a right conferred upon the accused and when giving an opportunity to write regarding his right, in this case, there is nothing to show that he raised a request for the presence of such persons. Surely Ext.P2 will show that it was informed to the accused regarding his right. If the appellant wanted to be searched before a magistrate or a gazetted officer and that was not conducted in such a way, he could have raised a contention before the magistrate at the time when he was produced on the next day. The question to be considered is that while considering Ext.P2, whether it can Crl.A.No.1145 of 2015 15 be concluded that the possession found by the court below and the consequential conviction can be set aside. But as per the decision of a Constitutional Bench of the Hon'ble Apex Court in **Karnail Singh v. State of Haryana [(2009) 8 SCC 539)** it was held that: The safeguard or protection to be searched in the presence of a gazetted officer or a Magistrate has been incorporated in Section 50 to ensure that persons are only searched with a good cause and also with a view to maintain the veracity of evidence derived from such search. When the strict procedural requirement is avoided by the amendment to Section 50 of NDPS Act, Ext.P2 shows that he was made aware of his right, then it cannot be come to a conclusion that he was totally unaware of the right conferred upon him under Section 50 of the NDPS Act. When there is material to show that at least a paper where it was written that such a right is therein was shown to him and a signature was obtained then his right under Section 50 of NDPS Act seems to Crl.A.No.1145 of 2015 16 be made known to him. Under such circumstances, it can be only held that there was compliance. When there was substantial compliance, it cannot be held by this court that the seizure is suspicious in nature. Surely, the learned counsel highlighted that even though the detection officer got a case that Ext.P2 was signed by the accused as well as by the witnesses, it was not shown to the said witnesses during examination. But when the appellant was questioned under Section 313 of Cr.P.C., the evidence of PW1 in this regard was specifically put to him. Even though there was a blanket denial, he had not stated specifically that the signature therein is not that of him. When an opportunity was given, then also he had not explained that the signature was obtained by coercion or threat. Under such circumstances it cannot be held that the content of Ext.P2 was never known to the accused. The result is that it can be only held that there was compliance of Section 50 Crl.A.No.1145 of 2015 17 of the NDPS Act. There is also evidence by PW1 to the effect that the information was rerecorded in GD and further the information was reported to the superior officer at the earliest point of time. The report contemplated under Section 42 of NDPS Act was also sent to the superior officer within 72 hours. In this case, on the next day itself by 10.05 a.m, it reached before the superior officer. Under such circumstances, it can be only held that there was compliance of all the provisions while detecting ganja. When the detection is believable, the corollary is that the possession of ganja is seen proved by reliable evidence adduced by the prosecution ie. by the evidence of PW1, which is seen corroborated by the seizure mahazar as well as by the oral evidence of PW4. Thus, it is hereby held that the appellant has committed an offence under Section 20(b)ii(B) of NDPS Act. Hence the conviction is upheld. 10. The next question is regarding the sentence. The Crl.A.No.1145 of 2015 18 quantity involved is only 1.480 gms of ganja. The appellant at the time of questioning under Section 313 Cr.P.C. was aged only 28 years as evident from the records. This is a case of medium quantity. The medium quantity will be above 1kg and below 20 kg. In this case about 480 gms above the small quantity was in the possession of the appellant. Considering the quantity involved, age of the appellant and further keeping in mind that the maximum sentence that can be imposed is 10 years rigorous imprisonment, the sentence is modified and reduced as rigorous imprisonment for 3½ years with a fine of Rs.25,000/-, with default simple imprisonment for six months. With the above modification on the side of the substantial sentence and default imprisonment, the appeal is partly allowed. Sd///True copy// P.A. TO JUDGE **K.P. JYOTHINDRANATH, JUDGE** rk/shg/