ABOOBACKER, S/O.KUNHITHEEN KOYA v. THE SUB INSPECTOR OF POLICE NADAKKAVU & STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933 CRL.A.No. 599 of 2011() ----------------------SC.9/2009 of SPL.COURT (NDPS ACT CASES), VADAKARA .................... APPELLANT(S): ACCUSED --------------------- ABOOBACKER, S/O.KUNHITHEEN KOYA, T.C.HOUSE, THIRUTHIYAYAL, CHALAPPURAM, NOW RESIDING AT THIRUVANNUR NADA. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): COMPLAINANT & STATE ---------------------------------- 1. THE SUB INSPECTOR OF POLICE, NADAKKAVU. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/08/2011, THE COURT ON 19/08/2011 DELIVERED THE FOLLOWING: ## **V.K.MOHANAN,J** **------------------------------** ## **Crl. Appeal No.599 of 2011** **-------------------------------------------------** Dated this the 19[th] day of August, 2011 ## **JUDGMENT** The sole accused in SC No.9/2009 of the court of Special Judge, (NDPS Case) Vatakara is the appellant. In this appeal, he challenges the judgment dated 31.3.2011 in SC No.9.2009 by which he is convicted and sentenced u/s.20(b)II(B). 2. The prosecution case is that on 11.10.2008 at 12.35 p.m the accused was found in a possession of 6.520 Kgm. of ganja in a scooter bearing Reg.No.KL-11-B 4166 at Bharrak road in Puthiyangadi against the provisions of NDPS Act 1985, (hereinafter referred for short as NDPS Act only) and thus, the accused has committed the offence punishable u/s.20(b)II(B) of NDPS Act. On the basis of the above allegation Crime No.536/08 was registered in Nadakkavu Police Station and on completing the investigation, report was filed in the above special court based upon which cognizance was taken for the above offence and instituted the above sessions case. On appearance of the accused after furnishing the prosecution materials and on hearing the accused as well as the prosecution, a formal charge was framed against the accused ## **Crl. Appeal No.599 of 2011 2** u/s.20(b)II(B) of NDPS Act which read over and explained to the accused, but he denied the same and pleaded not guilty. Consequently, the prosecution adduced its evidence consists of the testimony of PW1 to 9 and also produced documentary evidence such as Ext.P1 to P12. MO1 (contain ganja) and MO2 box contain ganja are identified and marked as material objects. On completing the prosecution evidence the accused was questioned under 313, and he denied the prosecution evidence and materials. From the side of the defence, DW1 was examined. Finally the learned Special Judge of the trial court has held that accused was found possessing, intermediary quantity of 6.520 Kgm. ganja and accordingly he is found guilty u/s.20(b)II(B) of NDPS Act and thus he is convicted thereunder. On such conviction, the learned judge of the special court sentenced him to undergo Rigorous imprisonment for two years and to pay a fine of Rs.50,000/- and the default sentence is fixed as rigorous imprisonment for 3 months. Set off is allowed. It is the above findings, order of conviction and sentence and the judgment are challenged in this appeal. 3. I have heard Sri.T.G.Rajendran, learned counsel for the appellant and Sri.Sivakumar, learned Public Prosecutor for the ## **Crl. Appeal No.599 of 2011 3** State. 4. In order to substantiate the above allegation against the appellant, though the prosecution has examined several witnesses and produced several documents, the prosecution mainly depends upon the testimony of PW1 the CI of Police Nadakkavu Police Station to prove its case and also the documents Ext.P1 information, P2 consent letter, P3 arrest memo, P4 Inspection memo P5 siezure mahazar P6 FIR etc. PW1 the detecting officer deposed before the court that at about 12.15 hours on 11.10.08 while he was in his office he received telephonic information that one person aged 50 years and wearing double dhoti having black border and strip shirt has brought ganja for sale in scooter bearing KL-11-E-4166 and that man is at Barrak Junction West Hill. PW1 further deposed that he had passed that information to his immediate superior officer, the Asst. Commissioner of Police, North, Kozhikkode through Head Constable-8170, Dany Ramachandran. According to PW1 thereafter, he left the office with the Police party consisting of one SI of Police, Jeevan George, ASI Assis and other Police Constables in his Police jeep and reached Bharrak junction by 12.35 p.m and found the said scooter which parked Bharrack ## **Crl. Appeal No.599 of 2011 4** road by the side of an electric post about 20 meters away from the junction. According to PW1, he had also found a person, whose features matching the description given in the information, holding a plastic cover. According to PW1 on seeing the Police party the said person attempted to ran away. 5. But, according to PW1, the Police party intercepted him and PW1 ascertained his name and address on interrogation. It is the further deposition of PW1 that thereafter in the presence of independent witnesses, he disclosed his identity to the said person and further told him that he suspects him that he is possessing the ganja and further conveyed to him that for his personal inspection by PW1, he has the right to be inspected in the presence of a Magistrate or a Gazetted Officer. According to PW1, then the said person replied that the presence of the Gazetted Officer or Magistrate for his inspection is not necessary and accordingly, the said person gave Ext.P2 consent letter for the inspection by PW1. Thus, according to PW1, thereafter he took the cover held by the said person and on inspection of the same, he found that the cover contains another cover which was opened and further found that such cover contained ganja. According to PW1, by looking at the contents in that cover, he ## **Crl. Appeal No.599 of 2011 5** was convinced that the contents of that cover is ganja, which had convinced the witnesses also. Thus, according to PW1, he arrested the accused at 1 p.m. on 11.10.2008 and prepared Ext.P3 arrest memo and Ext.P4 inspection memo. According to PW1, thus he weighed the net ganja by using the weighing machine, that was with them in the investigation kit and found net ganja weighing two Kgs. According to PW1, from that 2 Kgs of ganja, he took 50 gms of each in two separate polythene coves and wrapped them in brown paper and tied them with thread and affixed label thereon containing the signatures of himself, witnesses and the accused and sealed the same with the seal of SHO and those samples were marked as S1 and S2. He had also deposed regarding the seizure of the remaining ganja and the steps taken by him. 6. According to PW1, during the body search of the accused, in his shirt's pocket, he found one big and small key in a bunch. According to PW1, on questioning the accused about the key, the accused told him that it was the key of the scooter. PW1 further states that from the platform of the scooter, he found a tied cardboard box and on opening the same, he found that the box contains a plastic cover and that plastic cover contains the ## **Crl. Appeal No.599 of 2011 6** ganja. According to PW1, he weighed that ganja found in that cover and the weight of the same was found as 4.520 Kgs. He had also deposed about the details in drawing two samples of 50 gms each from 4.520 kg of ganja and the procedure adopted, as in the case of the previous seizure. According to PW1, he seized S1 to S4 sample packets, Exts.P1 and P2 packets key bunch of scooter No.KL-11-E/4166 (Bajaj Chethak) as per Ext.P5 seizure mahazar in the presence of witnesses. 7. According to PW1 thereafter, he came to the Police Station along with the accused and seized thondi article and at 3.45 p.m., he registered Ext.P6 F.I.R. in crime No.538 of 2008 and sent Ext.P7 detailed report to his superior officer, the Assistant Commissioner of police under Section 57 of the N.D.P.S.Act. According to him, on the next day which is Sunday, he produced the accused before the court along with the remand report and produced thondi articles along with Ext.P8 property list, but the property without receiving it returned, for producing on the next working day and accordingly, he produced the thondi articles in the court subsequently and till that time the same were in his safe custody. During the examination of PW1, he had identified MO1 as P1 packet, MO2 as P2 box ## **Crl. Appeal No.599 of 2011 7** containing ganja which were seized as per Ext.P5 mahazar. According to PW1, after the seizure and arrest of the accused, the further investigation was conducted by the C.I.of Police, Chevayoor and thereafter on 14.10.2008 PW1 himself continued the further investigation and thus, according to him, he prepared Ext.P9 forwarding note for sending the samples for chemical examination. He had also stated that he had questioned CWs.7 to 13 and recorded their statement. According to PW1, during his investigation, it is revealed that the scooter is belonging to one Jagadeesan who is the RC owner and the said person has sold the vehicle to one Sudharman in the year 1998 and from Sudharman, the accused purchased the vehicle but the R.C. is not transferred. According to PW1, he had given a requisition to Puthiyangadi Village Officer to prepare site plan of the place of detection. According to PW1, the investigation was completed and the chargesheet was submitted his successor in office. 8. PW2 is another officer, who accompanied PW1 at the time of the detection and arrest of the accused and seizure of the contraband article. When he was examined, he deposed in tune with the deposition of PW1 and in terms of the prosecution ## **Crl. Appeal No.599 of 2011 8** allegation. Though PWs.3 and 4 were cited as independent witnesses, for the search, seizure and arrest of the accused, they turned hostile. PW5 is the attestor to Ext.P10 scene mahazar who admitted his signature. PW6 is the RC owner of the scooter, who says that about 10 to 12 years back, he had sold the vehicle to one Sudharman, by giving a sale letter. PW7 Sudharman denied the purchase of the scooter from PW6. He had also denied the case of the prosecution that he sold the vehicle to the accused. PW8 the Village Assistant deposed about the preparation of Ext.P11 site plan with reference to the scene mahazar. 9. PW9 is the then C.I.of Police, Chevayoor, who conducted initial investigation as per the direction of the Assistant Police Commissioner, Kozhikode North. He had also deposed in terms of the prosecution case and according to him, he prepared Ext.P10 scene mahazar in the presence of independent witness and he had questioned the witnesses and recorded their statement. Ext.P12 chemical analysis report was marked through PW9. He had deposed that the investigation was completed and charge sheet was filed by CW16. 10. As I pointed out earlier, at the time of defence ## **Crl. Appeal No.599 of 2011 9** evidence, the defence has examined DW1, who deposed that the accused is his neighbour and he had further deposed that at about 3.30--4.00 .m. on 10.10.2008, the Police took the accused from the house of the accused. According to him, in front of the house of the accused, there was a scooter and two policemen came in mufti and took the accused and thereafter, recovery van came and took the scooter. According to him, the scooter was near the gate of the accused and when the Police took the accused, there was nothing in the hands of the accused. It is on the basis of the above materials and evidence, the trial court found that the accused is guilty and the said finding is challenged in this appeal. 11. Sri.T.G.Rajendran, learned counsel for the appellant vehemently submitted that the trial court has miserably failed to consider the mandatory provisions contained in Sections 40(1) and (2) of the NDPS Act and it is specifically contended that the information claimed to have received by PW1 is not reduced into writing which against the mandate that contained in Section 41 (1) of the NDPS Act. Thus, according to the learned counsel, the mandatory provisions of the special statute is violated and hence the accused is entitled to get an acquittal. It is also the ## **Crl. Appeal No.599 of 2011 10** submission of the learned counsel that absolutely, there is no evidence to show that the contraband articles were in the safe custody and there is no evidence as to when the same was produced before the court. It is the further submission of the learned counsel that regarding the second seizure, absolutely there is no legal evidence especially when the prosecution has miserably failed to prove that the scooter in question, from where the second seizure is effected, is within the possession of the accused or in his ownership. Thus, according to the learned counsel, the learned Judge of the trial court failed to understand the mandatory provisions that contained in the special statute and the legal impact due to the failure on the part of the Investigating Officers to comply with such mandatory provisions. Thus, according to the learned counsel, the appellant/accused is entitled to get an acquittal. 12. On the other hand Sri.Sivakumar, learned Public Prosecutor strenuously submitted that in the NDPS act, no particular format is prescribed for the purpose of recording the information either under Section 41 or under Section 42 of the NDPS Act and therefore, in the present case, Ext.P1 information can be treated as compliance of Section 41(1) of the NDPS Act. ## **Crl. Appeal No.599 of 2011 11** The learned Public Prosecutor further pointed out that in Ext.P6 FIR, PW1 has specifically recorded the information that he received and therefore, it cannot be said that PW1 has violated the provisions contained under Section 41(1) of the Cr.P.C. Learned Public Prosecutor further contended that as per the first seizure, the accused was taken into custody and it is thereafter he divulged the information about the placing of contraband article in the cardboard box kept in the scooter in question and therefore, the second seizure was effected in pursuance of the information divulged by the accused on his arrest and the same can be treated as a recovery in pursuance of the disclosure statement of accused under Section 27 of the Evidence Act. Thus, according to the learned Public Prosecutor, no interference is called for. 13. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the learned Public Prosecutor. I have also perused to the judgment of the trial court and the deposition of the witnesses and also other materials. 14. The crux of the prosecution allegation is that in pursuance of an information received by PW1, himself and the ## **Crl. Appeal No.599 of 2011 12** party proceeded to the spot as indicated in the information and on reaching the spot, PW1 has found a person whose appearance is tallied with the description given in the information and accordingly, when the Police tried to intercept, the accused tried to run away from the spot, but the Police intercepted him and on further questioning, and in compliance of the statutory provisions, 2 Kgs. of ganja was seized from the physical possession of the accused and thereafter, effected the recovery of 4.250 Kgs. of ganja from the nearby scooter and thus, the accused has committed the offence punishable under Section 20 (b)(ii)(B) of the NDPS Act. In the light of the above referred materials and evidence and in view of the findings of the court below, especially in the light of the rival contentions advanced by the counsel for the appellant as well as the learned Public Prosecutor, the question to be considered is whether the findings of the learned Judge of the Special Court that the appellant/accused was found in possession of 6.250 Kgs. of ganja is factually and legally correct or not. It is true that as contended by the learned counsel for the appellant, no separate document is produced by the prosecution to show that PW1 has reduced the information into writing which ## **Crl. Appeal No.599 of 2011 13** is claimed to have received by PW1. But, as rightly pointed out by the learned Public Prosecutor, nowhere in the NDPS Act or in the rules, a format is prescribed for the purpose of recording the information. Going by Sections 41 and 42 of the NDPS Act, it can be seen that Section 41 mainly deals with the power to issue warrant and authorisation. Section 41(1) is the provision which enables the Magistrate to issue such warrant or authorisation, whereas subsection(2) of Section 41 authorises a Gazetted Officer of the rank mentioned in Section 41(2) to issue such an authorisation. Section 42 deals with the power to entry, search, seizure and arrest without warrant or authorization. The officers mentioned in sub-section (1) of Section 42, without any authorisation, as contemplated either under Section 41(1) or Section 41(2), can do the above acts without such warrant or authorisation. But, the officers exercising the powers under Section 42(1) has to comply with the proviso contained under Section 42(1) of the Cr.P.C. as well as to forward a report in terms of Section 42(2) of the NDPS Act. Again, on consideration of Section 41(2) of the NDPS Act, it can be seen that if the information is received by a Gazetted Offier who is empowered in this regard, even without issuing any authorisation or warrant ## **Crl. Appeal No.599 of 2011 14** to his subordinate or any of the officers mentioned in Section 41 (2) or in Section 42, himself can arrest such a person or search a building, conveyance or place. In the light of the decision of the Apex Court reported in **Union of India** v. **Satrohan** [2008(1) SCALE 138), if the search is conducted by a Gazetted Officer himself, the compliance of Section 42 is not necessary. In the present case, here the search was conducted and arrest was made by PW1, the C.I. of Police, who was a Gazetted Officer. But, on getting the information, PW1 preferred Ext.P1 report and send the same to his superior officer which is a contemporary document. The endorsement contained in Ext.P1 would show that the same reached in the Office of the Commissioner of Police, North on 11.10.2008 itself and the Assistant Commissioner of Police, North, Kozhikode city in turn submitted the same to the Special Court (NDPS), Vadakiara. On a perusal of Ext.P1, it can be seen that PW1 has recorded the information, which he received. The clause contained in Sections 41(2) and 42(1), regarding the writing down of the information, is provided so as to ensure the correctness of the prosecution allegation and claim and to rule out the possibility of any innocent person being included in a case like the one ## **Crl. Appeal No.599 of 2011 15** contemplated under the NDPS Act. On approaching the requirement of Section 41(2) in that angle, according to me, the contention advanced by the learned counsel for the appellant about the violation of Section 41(2) cannot be sustained, especially in the light of the contemporary document Ext.P1. In the present case, it is also relevant to note that as per the prosecution allegation, the seizure was effected on the date of the information as stated in Ext.P1. It is also relevant to note that after the seizure, Ext.P6 FIR was registered on the same date and those documents connected with the arrest, seizure and including the FIR reached in the court without any delay. The above facts are sufficient to hold that especially, in the absence of any specific format regarding the information to be recorded, Ext.P1 information will serve the purpose as contemplated by Section 41(2) of the NDPS Act. So Ext.P1 can be considered as valid and compliance of the recording of information as contemplated by Section 41(2) of the NDPS Act. 15. Though Pws.3 and 4 turned hostile, the evidence of PW1 supported by the contemporary documents like Ext.P5 seizure mahazar and Ext.P3 arrest memo and Ext.P4 inspection memo are sufficient to hold that PW1 has seized 2 Kgs. Of ganja ## **Crl. Appeal No.599 of 2011 16** from the physical possession of the appellant/accused. Regarding the seizure of those contraband articles, there is no serious challenge. The evidence of PW1 supported by the documents Exts.P2 to P5 and Ext.P1 information would show that two Kgs. of ganja, a contraband item was seized from the possession of the accused in accordance with the procedure prescribed by the statute. Thus, according to me, the prosecution has succeeded in proving the first seizure of 2 Kgs. of dried ganja which is a contraband article from the physical possession of the appellant/accused. 16. The case of the prosecution is that after the seizure of 2 Kgs. Of ganja, as I found earlier, on questioning the accused, he had divulged about the ganja that he kept in MO2 box in a scooter bearing Regn.No. KL-11-E-4166. According to PW1, in pursuance of that information, 4.250 Kgs of ganja were seized from the box, which according to PW1, was in the possession of the accused. In order to establish the above seizure from the possession of the accused, the prosecution has heavily relied upon the evidence of Pws.1 ,2 and PW6. According to the prosecution the scooter bearing KL-11-E-4166 is originally belonging to PW6 who was the registered owner of the said ## **Crl. Appeal No.599 of 2011 17** vehicle. It is the further case of the prosecution that PW6 sold the above vehicle to PW7, who in turn sold the same to the appellant/accused. When PW6 was examined, though he had admitted that he was the RC owner of the vehicle, he had categorically stated that he sold the same to PW7 with a sale letter. But when PW7 was examined, he denied the version of PW6 that he purchased the scooter in question from PW6 and he has also deposed that he never sold such scooter to the accused. Thus, in effect, there is no legal evidence to show that the appellant/accused is the owner or in possession of the scooter in question at the relevant time. So there is no documentary evidence to connect the appellant/accused with the scooter in question either by way of his ownership or possession over the scooter. The learned Public Prosecutor submitted that the scooter in question, after seizure of the contraband article from the scooter, was taken to the Police Station by using the key which was seized from the pocket of the shirt of the accused and therefore, those facts are sufficient to connect the accused with the second seizure. I am unable to endorse the above contention. It is true that in pursuance of Ext.P1 information, PW1 has seized 2 Kgs. of ganja from the physical possession of ## **Crl. Appeal No.599 of 2011 18** the accused. Though it is mentioned in Ext.P1 property list about the key of the scooter, which is allegedly seized from the accused during his body search, connected with the first seizure, the same was not identified and marked during the trial of the case. 17. In this juncture, it is relevant to note that though, the so called key of the scooter allegedly seized from the possession of the accused and such material object is not identified and marked during the trial of the case. So there is no physical evidence to connect the accused with the scooter in question. Admittedly, the seizure of the contraband article from the scooter and seizure of the scooter itself were made from the public road. There is no evidence on record to establish proximity between the accused and the scooter. It is also relevant to note that the prosecution has no case that the ganja which allegedly seized from the scooter is concealed. It is also relevant to note that PW3 and 4 the independent witnesses examined by the prosecution to prove the seizure turned hostile. In the absence of any incriminating evidence to show that the accused/appellant was either the owner or in possession of the scooter and in the absence of any direct evidence to show that the scooter was seized from the physical possession of the ## **Crl. Appeal No.599 of 2011 19** accused, I am unable to accept that part of the prosecution case and to hold that the accused was found in possession of a total quantity of 6.520 Kgms. of ganja. In the absence of any concrete evidence and materials to connect the accused with the possession of 4.250 Kgms. Ganja, which allegedly seized from the cardboard kept in the scooter in question and especially when the prosecution has not produced and marked the key of the scooter, even though the same is a weak evidence, particularly in the absence of any documents or other evidence to show the ownership or possession over the scooter, it cannot be held that the prosecution has succeeded in establishing the second seizure of 4.250 Kgms. of ganja from the possession of the accused. Therefore, according to me, the prosecution has succeeded only in proving and establishing that the accused was found in possession of 2 Kgms. of ganja and prosecution has failed to prove that he was found in possession of altogether 6.250 Kgms. of ganja. 18. In the light of the above facts and circumstances, materials and discussions, the finding of the trial court that the accused was found possessing 4.520 Kgms. of ganja in his scooter is factually and legally incorrect and accordingly, the ## **Crl. Appeal No.599 of 2011 20** same is set aside, whereas the finding of the court below that the accused was found in physical possessing of 2 Kgms. of ganja is approved and confirmed. Resultantly, the finding of the trial court that the total quantity of ganja possessed by the accused is 6.520 Kgms. is set aside and found that the real quantity of ganja possessed by the accused was only 2 Kgms. of ganja and accordingly, the prosecution has succeeded in establishing that the accused was found in possession of 2 Kgms. of ganja and as the same is between small quantity and below commercial quantity, I am of the view that the accused/appellant is liable to be punished u/s. 20(b)(ii)(B) for possessing 2 Kgms. of ganja. Therefore, the conviction of the appellant u/s.20(b)(ii)(B) of NDPS Act is confirmed only for possession of 2 Kgms. of ganja 19. Regarding the sentence, the learned counsel for appellant submitted that the trial court imposed a sentence of 2 years and fine of Rs.15,000/- on the finding that the accused was found in possession of 4.250 Kgms. of ganja and in the light of the findings of this Court, the sentence is liable to be modified. I find some force in the above submission. In the light of the foregone discussion, I have already entered into the finding that the trial court was wrong in its finding that the ## **Crl. Appeal No.599 of 2011 21** accused/appellant was found in possession of 6.520 Kgms. of ganja and further found that, actually what proved by the prosecution is only the possession of 2 Kgms. of ganja by the accused and accordingly he is convicted u/s.20(b)(ii) (B) of NDPS Act. As per Section 20(b)(ii)(A); 'if the quantity involves small quantity, with rigorous imprisonment for a term which may extend to 6 months, or which fine, which may extend to 10,000/rupees, or with both'. I have already found that the appellant/accused was found in possession of only 2 Kgms. of ganja, against the finding of the trial court that he was found in possession of 6.520 Kgms. of ganja and therefore, the accused/appellant is entitled to get modified the sentence, though the quantity found is between small quantity and lessor than commercial quantity. Thus, according to me, one year rigorous imprisonment is sufficient to meets the ends of justice and the sentence of fine can be maintained as fixed by the trial court, but the default sentence can be reduced. Accordingly, the sentence of imprisonment ordered by the trial court is modified and the appellant/accused ## **Crl. Appeal No.599 of 2011 22** is sentenced to undergo rigorous imprisonment for a period of one year and he is also sentenced to pay a fine of Rs.15,000/- in default he is directed to undergo simple imprisonment for 45 days. The accused/appellant is entitled to get set off u/s.428 of Cr.P.C. In the result, the appeal is dismissed confirming the conviction of the appellant/accused u/s.20(b)(ii)(B) of the NDPS Act, but subject to the above modification with respect to the sentence. ## V.K.MOHANAN,JUDGE. pm