Aji S/o Balakrishnan; Biju George; Baby S/o Scaria v. State of Kerala

# _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 26[TH] DAY OF APRIL 2022 / 6TH VAISAKHA, 1944_ ## _CRL.A NO. 646 OF 2006_ _AGAINST THE ORDER/JUDGMENT IN CC 22/2004 OF SPECIAL COURT (NDPS_ _ACT CASES), THODUPUZHA_ ## _APPELLANTS/ACCUSED NOS.1 TO 3:_ _1 AJI, S/O. BALAKRISHNAN, KARIKULATHIL, MUTHIRAPUZHA KARA, KONNATHADI VILLAGE. 2 BIJU GEORGE, THEKKEKUNNEL HOUSE, NADAKAVU KARA, VELLATHOOVAL VILLAGE. 3 BABY, S/O. SCARIA, POOKUDIYIL HOUSE, MUTHIRAPPUZHA KARA, KONNATHADI VILLAGE. BY ADVS. SRI.T.G.RAJENDRAN S.RAJEEV_ ## _RESPONDENT/COMPLAINANT:_ _STATE OF KREALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS. SRI.SUDHEER GOPALAKRISHNAN, PUBLIC PROSECUTOR_ _THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON_ _18.02.2022, THE COURT ON 26.04.2022 DELIVERED THE FOLLOWING:_ Crl.A.No.646/2006 2 ## **J U D G M E N T** The appellants are the accused Nos.1 to 3 in C.C. No.22/2004 on the file of Special Judge for N.D.P.S Act cases, Thodupuzha. The aforesaid case arises from crime No.99/2003 of Murikkasseri police station, which was registered against the appellants and two others, for the offence punishable under Section 20 (b) (ii) (B) of NDPS Act. 2. The prosecution case is that on 27.8.2013 at 12 a.m., when the Sub Inspector of police of Murikkasseri Police station, along with his team, was conducting vehicle checking at ChinnarChembalapara road, they stopped an autorickshaw bearing registration No.KL–06 A-5128. On examining the said vehicle, a gunny bag was found behind the passenger seat of the autorickshaw, and upon verifying the contents of the same, they could find ten packets of the same size. On opening the same, it was revealed that the contents of the same were dried ganja. It was found that the 2[nd] appellant/2[nd] accused was driving the autorickshaw and the 1[st ] appellant/1[st] accused, as well as the 3[rd] appellant/3[rd] accused, were travelling in the said vehicle. Upon being questioned, the appellants attempted to run away from the Crl.A.No.646/2006 3 place of occurrence, which the police party prevented. Later, the appellants informed the police party that they had purchased the said ganja from accused Nos.4 and 5 from a place at Kuthirakkallu. Based on the information, a search was conducted in the house owned by the 4[th] accused and thereupon, four packets containing 1 Kg each of dried ganja and two packets with ganja having a quantity of 1½ kg each was seized therefrom. Thereafter, appellants were arrested from the spot, the articles were seized after drawing samples from the contraband, and they were brought to the police station. Thereupon, Crime No.99/2003 was registered, and the appellants and the articles were produced before the jurisdictional Magistrate. Later, during the investigation process, accused Nos.4 and 5 were arrested. Upon completion of investigation, a final report was submitted before the court. 3. The aforesaid case was numbered as C.C.No.22/2004, and the trial was conducted before the Special Judge for N.D.P.S Act cases, Thodupuzha. To establish the prosecution case, PWs 1 to 17 were examined, Exhibits P1 to P27 were marked, and material objects MO1 to MO7 were identified. After the closure of prosecution evidence, the accused were examined under Crl.A.No.646/2006 4 Section 313 of Cr. P.C and the incriminating materials brought out during the trial were put to them. All the accused denied the same. The 1[st] and 3[rd] appellants stated that they had boarded the autorickshaw accidentally, and they were not aware of the baggage that was kept behind the passenger seat. The 2[nd] appellant stated that he used to drive the said autorickshaw occasionally and quite often, the passengers used to keep their baggage behind the autorickshaw, and he was not aware of the baggage found by the police. 4. Thereafter, defense evidence was adduced by the appellants and as part of the same, DW1 was examined and Exts.D1 and D2 were marked. 5. After appreciating the materials available on record, the trial court found the appellants 1 to 3/ accused 1 to 3, guilty of the offence, whereas the 4[th] and 5[th] accused were found not guilty. Based on the said finding, the appellants were convicted and sentenced to undergo rigorous imprisonment for five years each and to pay a fine of Rs.25,000/- each with a default sentence to undergo rigorous imprisonment for six months each for the offence punishable under Sections 20 (b) (ii) (B) of NDPS Act. Crl.A.No.646/2006 5 This appeal is filed challenging the aforesaid order of conviction and sentence. 6. Heard Sri.T.G.Rajendran, learned counsel appearing for the 1[st] appellant, Sri.S.Rajeev, learned counsel appearing for the 2[nd] appellant, Sri.N.Sukumaran, learned Senior counsel appearing for the 3[rd] appellant and Sri.Sudheer Gopalakrishnan, learned Public Prosecutor appearing for the State. 7. The main contentions put forward by the learned counsels appearing for the appellants are as follows: The prosecution failed to establish the guilt of the appellants with adequate proof thereof. The prosecution witnesses did not establish the identity of the appellants while they were on the dock. The arrest of the appellants was also not properly proved by the prosecution. It was pointed out in this regard that Ext.P25 series arrest memos contain the crime number of the case, whereas the appellants were arrested on 27.08.2003 at 1.20 pm, and Ext.P22 FIR was registered on the same day at 6.30 pm. It was also pointed out that the prosecution did not adduce any evidence to establish the conscious possession of the appellants over the contraband articles. The fact that accused Nos.4 and 5 were acquitted by Crl.A.No.646/2006 6 the trial court is fatal to the prosecution case, as the very basis of the case against the appellants is that they had purchased the contraband article from accused Nos.4 and 5, and the said articles were being transported in the subject autorickshaw at the relevant time. By placing reliance upon this, it was pointed out that a crucial link alleged by the prosecution to connect the appellants with the contraband article is lost on account of the acquittal of the 4[th] and 5[th] accused. They also placed reliance upon the decisions rendered in **Vijay Pandey v. State of Uttar Pradesh [AIR 2019 SC 3569]** , **Vengadan Narayanan @ Achootty v. State of Kerala [2019 (3) KLJ 862]** , **Anilkumar v. State of Kerala and Another [2020 (4) KLT 34]** , **Vayalali Girishan and Others v. State of Kerala [2016 (2) KLT SN 2]** , **Mohammed v., State of Kerala [2003 (1) KLJ 46]** and **Rafeeque v. Sub Inspector of Police, Kunnamkulam Police station and Another [2020 (4) KLT 188]** . 8. On the other hand, the learned Public Prosecutor would oppose the aforesaid contentions. It was pointed out that the evidence of PWs 14, 15 and 16, who were present at the scene of occurrence while the seizure and arrest were made, would clearly establish the case of the prosecution. The Crl.A.No.646/2006 7 contemporaneous documents such as the seizure mahazar and arrest memos coupled with Ext.P18 chemical analysis report would provide corroborative evidence to support the oral evidence of the above witnesses. In such circumstances, no interference is warranted in the order of conviction of the trial court, and hence the dismissal of the appeal was sought by the learned Public Prosecutor. 9. The specific case of the prosecution is that, on 27.08.2003, while PW16, the Sub Inspector of Police, Murikkasseri Police Station, was conducting vehicle checking along with his team, including PW15 police constable, they happened to intercept the autorickshaw in which the appellants herein were travelling. On examining the said vehicle, they found the contraband article, which was kept in a gunny bag on the backside of the passenger seat of the autorickshaw. Immediately thereafter, in order to ensure the presence of a gazetted officer to comply with the statutory requirements as contemplated under Section 50 of NDPS Act, PW14, the Mass Media Officer attached to the office of the District Medical Officer was informed. Thereafter, the body search of the appellants was conducted in his presence. Crl.A.No.646/2006 8 10. To prove the search and seizure of the contraband articles, Ext.P1 mahazar was relied on, which was attested by PWs 1 and 2. However, both the above witnesses have turned hostile to the prosecution even though they admitted their signatures in the mahazar. PW3 is the person who had weighed the contraband article immediately after seizure thereof from the place of detection itself. He did not support the prosecution case and had stated that he did not weigh the articles on that day. PWs 6 to 11 were examined to prove the complicity of the 4[th] and 5[th] accused, whom the trial court acquitted. PW12 and PW13 are the Circle Inspectors of Police who investigated the case at various stages, and PW17 is the Circle Inspector who was in charge at the time of detection of the contraband article. 11. The crucial evidence relied on by the prosecution is the oral evidence of PWs 14, 15 and 16. PW14 is the Gazetted officer in whose presence the seizure was effected. His evidence would indicate that on 27.08.2003, he was informed by the police that three persons were apprehended with a suspicion that they were in possession of ganja, and the presence of PW14 was sought. Immediately, he went to the spot, and he could find three persons along with the police. He also stated about the seizure Crl.A.No.646/2006 9 of 10 packets of ganja containing 1 Kg each. He states about the preparation of mahazar and affixing signature thereon. However, he could not identify any of the accused even though they were present on the dock. 12. PW15 is the police constable in the police party while the offence was detected. He deposed in tune with the prosecution case. It was also stated by him during the chief examination that when PW16 started questioning the appellants, they attempted to flee from the place, which was prevented by the police party. However, in the cross-examination, he stated that they did not run away but only made an attempt to run while they were sitting inside the autorickshaw. He had stated that, at the relevant time, the autorickshaw was being driven by the 2[nd] accused, and he identified him. The other accused, namely the 1[st] and 3[rd] accused, were also identified as the persons travelling in the said autorickshaw at the relevant time. According to him, based on the information received from the said accused, they conducted a search of the house at Kuthirakkallu. They recovered 7 Kg of ganja kept therein in six packets. All the aforesaid articles were seized, and the appellants herein were arrested. PW16 is the Sub Inspector of police who detected the Crl.A.No.646/2006 10 aforesaid offence, seized the contraband articles and arrested the appellants 1 to 3. His evidence is in tune with the evidence of PW15. However, the crucial aspect of his evidence is that he could not identify any of the accused from the dock. 13. The prosecution relies upon the aforesaid evidence to establish the case against the appellants. One of the crucial contentions that the appellants have put forward is that the identity of the appellants was not adequately proved. It was pointed out that none of the independent witnesses supported the prosecution case, and the identity of the appellants herein was not proved by them. The only witness who identified the appellants was PW15. Even though PWs14 and 16 were in the place of detection, they did not identify the appellants. The failure on the part of PW16, the Sub Inspector of Police who had affected the seizure and arrest, in identifying the appellants herein, is a serious lacuna in the prosecution case. In ## **Rafeeque’s case (supra)** , it was observed as follows: “The appellate court, having found that the evidence of PW1 and PW2 is insufficient to prove that the first accused was the driver of the lorry, has taken much strain to find that the recitals in the documents produced and proved by the prosecution would establish the identity of the driver of the lorry. This Crl.A.No.646/2006 11 view adopted by the appellate court is wrong. Substantive evidence to prove the identity of an offender is the statement of the witness in the court, identifying the accused in the court as the offender or the person who committed the act. Identity of the offender cannot be proved merely on the basis that the name of the accused is mentioned in the documents prepared by the detecting officer as the person who committed the offensive act.” 14. Thus, the identification of the accused by the witnesses during the course of the trial is a substantive evidence, which is absolutely necessary to prove the guilt of the accused. Since PWs 14 and 16 did not identify the appellants, the only substantive evidence for the identification of the appellants is the evidence of PW15. However, it was pointed out by the appellants that the identification made by PW15 was not in a proper manner. It was contended that the identification by the said witness was based on the rank number of the accused, and from the deposition of PW15, it is not possible to understand clearly as to whether each of the accused persons was separately identified by the said witness. In this regard, the observations made by this Court in **Mohammeds' case (supra)** at Paragraph 6 are very much relevant which reads as follows: Crl.A.No.646/2006 12 “Point No.1.1 have perused the evidence of PWs and 2, who alone are the witnesses to the seizure. PW2 is actually the seizing official himself. However, neither of these witnesses has specifically identified the person in the dock in the Trial Court as the person from whom seizure was effected. Of course reference was made to the fact that the seizure was effected from the ‘accused’. But then who was the particular person? Was he the person in the dock? On these aspects no sufficient light is seen in the depositions recorded. The depositions should either have included a specific endorsement by the Judge that the accused in the dock was identified by the witness or that the answer regarding identification was made pointing towards the accused in the dock or some other indication that the witness has identified the person available in the box as the perpetrator of the crime about which the witness is deposing before court. This is so because it is essential in a criminal trial, that the identity of the person who faces the trial as the perpetrator of the crime is established. For this to be achieved the witnesses to the transaction in question should specifically certify the identity of the person in the dock as the person available at the scene of occurrence, if at all the prosecution case is that the presence of the accused at the scene of occurrence was witnessed by the particular witness. This aspect was highlighted by this court in some earlier judgments; but notwithstanding this even special courts which try cases involving very high punishment do not Crl.A.No.646/2006 13 appear to give sufficient attention to this important aspect. The position is hereby reiterated for strict compliance by the subordinate courts.” 15. Similarly, in **Vayalali Girishan's case (supra),** a Division Bench of this Court observed with great emphasis about the necessity to follow the proper procedure by the trial court while identifying the accused on the dock. In paragraph No.43 it was observed as follows: “43. Recalling the discussion with regard to the presence, participation and fixation of identity of the accused, we hold that the evidence of PW1 to 4 are convincing as regards the incident and there is no reason to doubt their version as regards the involvement of accused Nos.1, 2, 12 and 15. But we are distressed to note that in the case of the other accused, the learned Sessions Judge has adopted a very callous approach. Undoubtedly, substantive evidence is the identification of the accused by the witness before the Court. But in the instant case, the deposition of the witnesses only reveals that the learned Sessions Judge has merely recorded the rank number of the accused in the charge and no effort is seen undertaken to certify in the deposition, with exactitude and certainty, that the person referred by witness as one of the members of the unlawful assembly which perpetrated the horrendous act is the person who was standing in the dock. We are unable to discern for certain as to whether the witness was Crl.A.No.646/2006 14 referring to the particular accused whose name finds a place in the charge or to some other person. Obviously the witness will not be aware of the rank number of the person standing in the dock in the array of the accused. There is absolutely no clue available from the deposition either, as the Court has not recorded this aspect in the evidence as to the manner in which the particular accused was identified. The Apex Court as well as this court, time and again, have reminded the trial Courts, the importance of recording in the deposition the most cardinal fact that the witness has specifically identified the accused as the person who was involved in the crime, so that the complicity and presence of the accused at the scene of crime could be fixed with exactitude. This is all the more important in a case of this nature where most of the accused are attempted to be roped in on the reason that they were members of the unlawful assembly and they had shared the common object. Unfortunately, there is no specific endorsement in the deposition of the eye witnesses that the accused numbering 25 standing in the dock were identified by the witness in any acceptable manner known to law and the court was satisfied by the identification. In other words, it does not appear from the evidence that the accused was specifically pointed out by their name or specific feature and an endeavor was made by the Court to individually fix each of the accused as being present at the scene of crime so that their complicity as members of an unlawful assembly in Crl.A.No.646/2006 15 prosecution of the common object could be fixed. We have to mention that the identification of the accused in Court, which was conducted in an omnibus and perfunctory manner, cannot be held to be reliable to establish the complicity of accused Nos.3 to 11, 13, 14 & 16 to 25 and to hold them vicariously liable for the offence u/s 302 r/w 149 of the IPC.” 16. From the aforesaid observations, it is evident that the identification of each of the accused with precision has to be recorded in the deposition. However, on going through the testimony of PW15 in this case, it can be seen that the identification recorded therein is merely by stating the rank numbers of the accused, and there is nothing to indicate the features based on which such identification was made by the said witness. In such circumstances, it is not safe to convict the appellants based on such evidence. Even otherwise, the evidence regarding the identity is doubtful, in view of the fact that, out of the three official witnesses, who were present in the place of detection, two of them, including the detecting officer, failed to identify any of the accused, and this is a very serious lapse on the part of the prosecution, which cannot go unnoticed. 17. Another discrepancy pointed out by the appellants is about the arrest of the appellants by PW16. According to the Crl.A.No.646/2006 16 prosecution, all the appellants were arrested from the place of detection along with the contraband articles. Ext.P25 series are the arrest memos of the appellants, which would indicate that the arrest was made on 27.08.2003 at 1.20 pm. Ext.P22 is the FIR, and the same would indicate that the crime was registered by the police on the same day at 6.30 pm. However, on perusal of Ext.P25 series arrest memos, it can be seen that the crime numbers are seen mentioned therein. If the arrest was affected at 1.20 pm and the FIR was registered subsequently, it was not possible for the police to incorporate the crime number in the arrest memos. It is the specific case of the prosecution that the Ext.P25 series were prepared from the spot of the arrest itself, which is two kilometers away from the police station, and the time of arrest was before the registration of the crime. No explanation is forthcoming on this aspect by PW16. The consequences of mentioning the crime number in the arrest memo prepared by the detecting officer at the spot of occurrence were considered by this Court in **Rafeeque’s case (supra),** and in paragraph 21 thereon, it is observed as follows: “21. Presence of the crime number of the case in the arrest memo prepared by the detecting officer at the spot of the occurrence, in the absence of any Crl.A.No.646/2006 17 explanation offered by the prosecution, gives rise to either of the two inferences, that the first information report was recorded prior to the alleged recovery of the contraband or that the number of the first information report was inserted in the arrest memo after its registration. In both situations, it seriously reflects upon the veracity of the prosecution version of the incident and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution (See Zofar v. State : 2000 Cri.L.J 1589, Kailash @ Kuddu v. State : 2000 Cri.L.J 2134 and Karunakar Bindhani v. State of Kerala : 2017 (1) KLD 48). When it is alleged by the prosecution that the seizure was effected and the accused was arrested prior to the registration of the first information report, the presence of the crime number of the case in the arrest memo, in the absence of any cogent and convincing explanation offered by the prosecution, creates a deep dent on the veracity of the case put forward by the prosecution (See Shyam Bharia v. State of Madhya Pradesh:2005 Cri.L.J 1907). It creates doubt as to the manner in which seizure of the contraband substance and the arrest of the accused were effected by the police officers (See K. Kalyani v. State: MANU/TN/1070/2019)” 18. The aforesaid decision was followed by this Court in **Santhosh v. State of Kerala [2021 (5) KHC 214]** as well. In the light of the aforesaid principles, the mentioning of the crime Crl.A.No.646/2006 18 number in arrest memos is a severe discrepancy that creates grave suspicion in the case of the prosecution. In **Anilkumar’s case (supra)** , it was observed by this Court as follows: “S.64 of the Abkari Act provides that, in prosecutions under s.55 of the Abkari Act, it shall be presumed until the contrary is proved, that the accused person has committed an offence under that section in respect of any liquor, of the possession of which he is unable to account satisfactorily. When such reverse burden of proof is there, the prosecution shall be put to a stricter test and if at any stage, the accused is able to create a reasonable doubt, as part of his defence, to rebut the presumption of guilt, the benefit will naturally go to him.” 19. Even though this Court laid down the aforesaid principles in a case arising under Abkari Act, the observations made therein are applicable to this case as well since the NDPS Act contains similar provisions which are mentioned in the aforesaid decision. It is also the well settled position of law that when the offence attracts severe punishment, the burden on the prosecution to establish the offence would also be more stringent. No doubt, offence alleged against the appellants are very stringent, and hence the responsibility of the prosecution to establish the guilt is also heavy. When applying the aforesaid Crl.A.No.646/2006 19 principles to the facts of this case, it can be seen that the prosecution did not discharge that burden by adducing proper and convincing evidence in support of the prosecution case. While considering this aspect, another crucial point to be noticed is that, the specific case of the prosecution is that the appellants were transporting the contraband articles in the subject autorickshaw, after procuring the same from the 4[th] and 5[th] accused. It is a fact that the trial court found that the 4[th] and 5[th] accused were not guilty of the offences, and therefore, the link which establishes the connection of the appellants with the contraband articles is lost. The aforesaid aspect is very crucial in view of the fact that I have already found that the case put forward by the prosecution about the arrest of the appellants and the seizure of the articles from them is doubtful. In such circumstances, the acquittal of the 4[th] and 5[th] accused is a crucial aspect against the prosecution case. 20. The learned Sessions Judge placed much emphasis on the evidence of PWs15 and 16, particularly their statement that the appellants attempted to flee from the scene of occurrence. However, since the identity of the persons was not properly established while the accused were on the dock, the aforesaid Crl.A.No.646/2006 20 evidence relied on by the learned Sessions Judge lost its significance. In such circumstances, the only conclusion possible is that the prosecution failed to establish the guilt of the accused. Hence, interference is warranted in the finding of conviction passed by the learned Sessions Judge. In the result, this Criminal Appeal is allowed and the judgment dated 18.03.2006 in C.C.No.22 of 2004 passed by the Special Judge for N.D.P.S Act Cases, Thodupuzha is hereby set aside. The appellants are found not guilty, and accordingly, they are acquitted of all the charges. Their bail bonds shall stand cancelled. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/21.4.22