Aji @ Ajithkumar S/o Balakrishnan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 5[TH] DAY OF AUGUST 2022 / 14TH SRAVANA, 1944 CRL.A NO. 141 OF 2008** **AGAINST THE JUDGMENT DATED 18.01.2008 IN S.C.NO.17 OF 2006 OF THE SPECIAL COURT (NDPS ACT CASES), VADAKARA APPELLANT/ACCUSED:** **AJI @ AJITHKUMAR S/O BALAKRISHNAN, KARIKKULATHIL, UDUMBANCHOLA, IDUKKI.** **BY ADV SRI.R.BINDU (SASTHAMANGALAM)** ## **RESPONDENT/COMPLAINANT:** ## **STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **PP - SRI. G. SUDHEER** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 05.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.141 of 2008 ## **JUDGMENT** This is an appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973. 2. The appellant was the 2[nd] accused in Sessions Case No. 17 of 2006 on the file of the Special Court for the trial of offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, Vadakara. The charge against the appellant was that at about 9.00 a.m. on 17.12.2005, he together with the 1[st] accused was found in possession of 3.846 Kgs. of Ganja. The specific allegation was that the 1[st] accused was in possession of 3.600 kgs. and the 2[nd] accused (appellant herein) was in possession of 264 grams of Ganja. 3. Although tried for the offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985(for short “NDPS Act”), the appellant was convicted and sentenced for a lesser offence that is punishable under Section 20(b)(ii)(A) of the NDPS Act. 3 Crl.Appeal No.141 of 2008 4. At the trial, the prosecution examined PWs.1 to 5 and marked Exts.P1 to P16. Mos.1 to 7 were identified as well. During the examination under Section 313(1)(b) of the Code, the appellant set forth a case of total denial. No defence evidence was let in. 5. The Special Judge for the trial of NDPS Act cases, Vatakara, who tried the appellant, after analysing the evidence, concluded that there was no evidence to establish the companionship of the appellant and the 1[st] accused, who was not available for trial along with the appellant. The finding therefore was that the appellant was answerable to the Ganja in his possession alone. Resultantly, the appellant was found guilty of the offence for possessing a small quantity of Ganja, instead of the charge for possession of an intermediary quantity of Ganja. 6. The learned counsel appearing for the appellant would submit that the prosecution is vitiated for more than one reason. It is contended that the prosecution failed to comply with the provisions of Section 50 of the NDPS Act. 4 Crl.Appeal No.141 of 2008 Exts.P1 and P2 are the consent letters said to have been obtained from the 1[st] accused and the appellant. It was purportedly executed on 17.12.2005, i.e., at the time of seizure itself but it was produced in court only along with the final report, which was after a period of above ten months. The learned counsel for the appellant next contended that a report under Section 57 of the NDPS Act was not submitted before the superior officer in time. It also vitiated the prosecution. Ext.P5 is the report under Section 57 of the NDPS Act. 7. PW1, the Circle Inspector of Police, who effected seizure of the contraband from the possession of the appellant. Prosecution has examined PW2 in order to speak about the seizure effected in the case. PW2 stated before the court that he saw arresting both the accused, and seizure of the contraband from their possession. With respect to the complicity of the appellant also he deposed in detail. He has also stated regarding the seizure of the contraband from the possession of the accused persons and affixing signature in 5 Crl.Appeal No.141 of 2008 Ext.P3 seizure mahazar, which he identified in court. His signatures on MOs.2 to 5 said to have been affixed at the time of seizure also have been identified by him in court. Insofar as his credibility is concerned, there is nothing on record to show that he is stating falsehood in court. Thus, the evidence of PW2 is available to the help of prosecution to prove the allegation against the appellant. 8. PW1 deposed with respect to the seizure of the contraband from the possession of the accused and their arrest in detail. It is his version that the accused persons were exchanging something and on seeing the police party, they tried to flee away. They were therefore chased and caught. In search found the 1[st] accused in possession of a plastic bag containing Ganja and the appellant in possession of 88 packet of Ganja weighing 264 grams. He deposed that the accused had waived the right under Section 50 of the NDPS Act for which they executed Exts.P1 and P2. He proved Ext.P3, the mahazar prepared by him to seize the articles including samples drawn from the contraband. He as well as PW2 6 Crl.Appeal No.141 of 2008 identified MO4 as the samples prepared from the contraband found with the appellant. Having gone through his evidence I am convinced that the evidence of PW1 stands unimpeached. The Apex Court in **Aher Raja Khima v. State of Saurashtra [AIR 1956 SC 217]** held: "The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration". ## 9. In **Tahir v. State (Delhi), (1996) 3 SCC 338** , dealing with a similar question, the Apex Court stated: "Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case.” ## 10. In **Karamjit Singh v. State (Delhi Administration)** ## **[AIR 2003 SC 1311]** the Apex Court again held,- 7 Crl.Appeal No.141 of 2008 “The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down.” ## 11. In **Baldev Singh vs State Of Haryana [(2015)** **17 SCC 554]** the Apex Court reiterated that view. In the light of the law referred to above, evidence of police officials can be the basis for conviction, even in the absence of any independent evidence. 12. Here, the evidence of PW1 gets corroboration with respect to the material particulars from the oral testimony of PW 2. When the evidence of PW1 and PW2 stands scrutiny by detailed cross-examination, their evidence can well be believed. 13. It is seen from Ext.P3 that samples from contraband found in the possession of both the accused were 8 Crl.Appeal No.141 of 2008 drawn. One each of such samples was forwarded for chemical examination. MO2 and MO4 series are the samples produced before the court along with other articles. PWs.1 and 2 duly had identified the samples, which bear the seal and also their signatures. 14. Ext.P15 is the forwarding note. Ext.P13 is the chemical analysis report. It is stated in Ext.P13 that the samples received in the laboratory were intact and that the seals on them were untampered. From the said evidence, it can be seen that the samples prepared at the time of seizure reached the laboratory without any meddling. Therefore, the report as per Ext.P13 can be believed. It helps to connect the samples prepared in this case with the contraband found in possession of the accused. From Ext.P13 chemical analysis report, it is evident that the samples prepared are Ganja (Cannabis Sativa). 15. The learned counsel for the appellant would contend that there occurred inordinate delay in Exts.P1 and P2 reaching the Court and that shows that there was non- 9 Crl.Appeal No.141 of 2008 compliance with Section 50 of the NDPS Act. On a perusal of Exts.P1 and P2, it is seen that it was prepared at 9.00 p.m. on 17.12.2005 i.e. at the time of the seizure. True, it is the burden of the prosecution to establish that the said documents were submitted in court without any delay and if there is any unexplained delay that will create doubt in the very genesis of the prosecution. Exts.P1 and P2 bear the date, 17.12.2005, and it is seen signed by PW1 on the same date. So, it can only be inferred that the same were not prepared at the time of the search and seizure itself. Though it is contended by the learned counsel that it reached the court only along with the final report filed in the case, there is nothing in evidence to probabilise that contention. Even if there occurred some delay in reaching the said documents in court, that by itself would not vitiate the case of the prosecution altogether, since it is evident that the documents were executed at the time of search itself. 16. Ext.P5 is the report submitted under Section 57 of the NDPS Act. PW1 claimed to have submitted it immediately 10 Crl.Appeal No.141 of 2008 after submitting the F.I.R., Ext.P4, before the court. The learned counsel would submit that Ext.P5 reached in court much belatedly and therefore the case of the prosecution cannot be believed. As in the case of Exts.P1 and P2 any delay in submitting Ext.P5 before the court is also crucial. But on a perusal of Ext.P5, it is seen that the superior officer, Deputy Superintendent of Police, Tirur, received Ext.P5 on 19.12.2005, i.e., on the third day of the date of detection of the offence. Of course, the prosecution did not submit Ext.P5 before the court in time. However, in the light of the endorsement of the Deputy Superintendent of Police, who received it, the said delay is not sufficient to discard the case of the prosecution, especially in the absence of any other vitiating factors. In the circumstances, I am of the view that the contention of the learned counsel for the appellant in this regard also cannot be accepted. 17. In view of what are stated above, this Court is of the view that the court below rightly had held that the appellant guilty of the offence under Section 20(b)(ii)(A) of the NDPS Act. 11 Crl.Appeal No.141 of 2008 Hence, I confirm the conviction of the appellant entered into by the trial court. 18. The appellant was sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.5,000/- with a default sentence of rigorous imprisonment for a period one month. The quantity of Ganja in the possession of the appellant is 264 grams. There is nothing in evidence to show that he has involved in any other offence. The learned counsel for the appellant would submit that the appellant has three daughters and he is the only person to look after the family. 19. Considering the above aspects, I am of the view that interference in the sentence is required. Hence, the appellant is sentenced to undergo simple imprisonment for a period of two months and to pay a fine of Rs.5,000/- with a default sentence of simple imprisonment for a period of 15 days. Set off as provided under Section 428 of the Cr.P.C. is allowed. 20. It is seen from the impugned judgment that the appellant was in custody from 17.12.2005 to 16.02.2006. 12 Crl.Appeal No.141 of 2008 Therefore, no further detention of the appellant is required against the substantive sentence. At the time of suspending the sentence by this Court, the appellant was directed to deposit the fine amount of Rs.5,000/- as a condition for grant of bail. The said amount will be appropriated against the fine imposed on the appellant. The appeal is allowed in part in such terms. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr