Arshad P.K. v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN WEDNESDAY, THE 14[th] DAY OF JULY 2021 / 23RD ASHADHA, 1943 CRL.A NO. 549 OF 2019 (G) AGAINST THE JUDGMENT IN SC 138/2018 OF SPECIAL COURT (NDPS ACT CASES), VADAKARA, KOZHIKODE ## APPELLANT/ACCUSED: ARSHAD P.K., AGED 26 YEARS, S/o MUHAMMED, PONNA KAIKARAKALI VEETTIL, KATTAYAM LAKSHAM VEEDU COLONY, PAPPINISSERY AMSOM, AROLI DESOM, KANNUR DISTRICT. BY ADVS. SRI.ABDUL RAOOF PALLIPATH SRI.K.R.AVINASH (KUNNATH) ## RESPONDENT/STATE OF KERALA: THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM - 682 031. BY PUBLIC PROSECUTOR SRI. E.C.BINEESH THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl. Appeal No.549 of 2019 2 ## JUDGMENT This appeal by the accused is against the conviction and sentence for the offence under Section 22(a) and 22(c) of the Narcotic Drugs and Psychotropic Substance Act, 1985. 2. The main challenge is with respect to the non-compliance of the requirement under Section 50 of the Act. What is alleged to have been seized comes to 0.230 gms of LSD and 0.420 gms of MDMA **.** The accused was found in the occurrence place in a suspicious circumstance and the detecting officer, PW1, along with other officials, who were on patrol duty, approached the accused and on interrogation, he made a confession regarding possession of alleged contraband. Thereon, his right of choice to conduct his body search either in the presence of Magistrate or a gazetted officer was well intimated orally and in writing and thereafter PW6, the gazetted officer, was summoned and body search was conducted. It was Crl. Appeal No.549 of 2019 3 submitted that the very case advanced regarding the body search has got its own improbability as the accused was found in the occurrence place at 6.15 a.m. and the mahazer regarding body search was prepared only after one hour. The time taken for procuring the presence of PW6 comes to 45 minutes and it is thereafter body search was conducted in accordance with the mandate under Section 50 and as such, there is no merit in the above submission. 3. The further challenge is that the right to be searched in the presence of a Magistrate or a gazetted officer was not intimated to the accused and it is only a subsequent improvement made by the detecting officer, PW1 during the course of his examination. But, Ext.P4 mahazer contains the statement with respect to the compliance of mandate under Section 50 of the Act by intimating the accused by writing and orally the choice and the right thereof to be searched either in the presence of a Magistrate or a gazetted officer and it would show Crl. Appeal No.549 of 2019 4 that it is not at all a subsequent improvement. 4. The evasive answers given by PW1 during cross examination, if it is not material, are not sufficient to discredit the entire evidence, when it is otherwise found to be acceptable. Ext.P4 mahazar stands supported by the oral evidence of PW3, besides the oral evidence of PW1 and nothing was brought out to discredit their evidence. Hence, the inadvertent omission during the course of cross examination may not be a sufficient ground to reject the oral evidence. On the other hand, this has to be read along with the deposition made by PW6, the gazetted officer, who had given full support to the prosecution case. Hence, there is a strict compliance of the mandate under the provision. Hence, the reliance placed by the learned counsel for the appellant in **Vijaysingh Chandubha Jadeja v. State of Gujarat [(2011) 1 SCC 609]** will not render any assistance to his case. 5. Inter alia, it is submitted that there is no Crl. Appeal No.549 of 2019 5 plausible or acceptable evidence showing the quantity of the alleged contraband and the measurement taken by using an electronic apparatus (weighing machine) used for weighing fruits cannot be accepted. It was admittedly taken from the shop of a near fruit merchant and PW4 is the Manager. The quantity of LSD comes to 0.230gms. The commercial quantity of alleged contraband is 0.1gm. This would prima facie show that what is measured by using an electronic weighing apparatus comes to more than double of the commercial quantity. The oral evidence tendered by the Manager, PW4 that the electronic apparatus used for weighing the contraband was in a working condition and weight was measured digitally. As such, there is nothing to doubt about the genuineness of the quantity assessed through electronic apparatus. 6. Yet another contention was also raised that the electronic apparatus was not fitted with a separate battery. The fact that the quantity was assessed electronically by using electronic weighing Crl. Appeal No.549 of 2019 6 machine stands supported by the oral evidence of PW4, the Manager of the shop, from where the weighing machine was taken. As such, it is not at all necessary to go into the question whether any back up facility was provided or not to the weighing machine. 7. The LSD was found inseparably mixed with perforated paper, which was used as a medium to carry the alleged contraband. The legal position was very much settled by the Apex Court in **Hira Singh and another v. Union of India and another [2020 (2) KHC** **551]** . It was submitted that what is involved in **Hira Singh** 's case is heroine, which is a narcotic drug and as such, the rationale applied cannot be applied to psychotropic substance such as LSD. There cannot be any differentiation in the application of the rationale when the alleged contraband was found inseparably mixed with a neutral substance, to carry the same effectively, based on the classification of substance either narcotic drug or psychotropic substance. What is found in possession comes to more Crl. Appeal No.549 of 2019 7 than double of the commercial quantity of LSD. Hence, the offence under Section 22(c) of the Act would stand attracted and no reason for interference with the finding of guilt of accused for the said offence and the conviction thereunder. 8. Regarding the possession of MDMA, which comes to 0.420gms was seized simultaneously during the course of search and weighed using the very same electronic apparatus and as such further discussion is not necessary to concur with the finding of the trial court for the offence under Section 22(a) of the Act. 9. The sentence awarded for the abovesaid offences reflects a proper balance between the mitigating and aggravating circumstances, especially when what is ordered is the minimum sentence. The appeal fails, dismissed. **==> picture [46 x 13] intentionally omitted <==** ## **P. SOMARAJAN, JUDGE** DMR/- Crl. Appeal No.549 of 2019 8 ## **APPENDIX** PETITIONERS ANNEXURE: ANNEXURE 1 : TRUE COPY OF THE ORDER OF THE SUPREME COURT IN SLP (Crl) DIARY No.38963/2019. RESPONDENT'S ANNEXURE : NIL **==> picture [145 x 13] intentionally omitted <==** P.A. TO JUDGE