Badusha v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 6[TH] DAY OF JUNE 2023 / 16TH JYAISHTA, 1945 ``` ``` CRL.A NO. 325 OF 2020 ``` ``` AGAINST THE JUDGMENT DATED 24.12.2019 IN SC (NDPS) NO.57 OF 2019 OF SPECIAL COURT (NDPS ACT CASES), VADAKARA APPELLANT/ACCUSED: ``` ``` BADUSHA AGED 26 YEARS S/O. SHERIEF, PULIKKAMUKKAM HOUSE, THENANGAPARAMBU, CHERUVADI P.O., KOZHIKODE P.O. - 673 661. BY ADV T.G.RAJENDRAN ``` ## **`RESPONDENTS/COMPLAINANT & STATE:`** - **`1 THE SUB INSPECTOR OF POLICE MUKKOM POLICE STATION, KOZHIKODE-673 602`** - **`2 DEPUTY SUPERINTEND OF POLICE THAMARASSERY, KOZHIKODE-673 573`** - **`3 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031 BY ADV GOVERNMENT PLEADER`** ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07.03.2022, THE COURT ON 06.06.2023 DELIVERED THE FOLLOWING: ``` Crl.A. No. 325 of 2020 -:2:- ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No.325 of 2020 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6[th] day of June, 2023 ## **JUDGMENT** Appeal is preferred against a judgment passed by Special Judge (NDPS Act Cases), Vatakara (for short ‘the trial court’) on 24.12.2019 in S.C (NDPS) No.57/2019 whereby the appellant was found guilty of an offence punishable under Section 22(c) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’) and convicted and sentenced to undergo rigorous imprisonment for 15 years and to pay `1,00,000/- as fine and to undergo rigorous imprisonment for six months in default of payment of fine. 2. At 6.20 p.m on 19.12.2018, the Sub Inspector of Police, Mukkam Police Station obtained a reliable information that in front of a two wheeler workshop situated on the side of a road leading to Muthalam from Mannassery, a person, lean and of white complexion with beard was found supplying some intoxicant drugs for people of KMCT institutions, recorded that in the General Diary and proceeded to the place alongwith other Crl.A. No. 325 of 2020 -:3:- officers and reached there at 6.50 p.m. The S.I of Police conveyed the secret information obtained by him to the person found there. He called two persons from among the public gathered there and in their presence the person found was apprised of his right to have his body search conducted before a Gazetted Officer or a Magistrate. He was also served with a notice in writing in that regard. He requested for the presence of a Gazetted Officer and therefore the Divisional Forest Officer, Nilambur was contacted and his presence was procured. He arrived at the spot at 7.45 pm and the body search of the person was conducted in his presence. 35 LSD stamps were recovered from the right side pocket of the pants worn by him. Those were properly packed and sealed from the spot. Accused was arrested after preparing a memo of arrest. Seizure mahazar was prepared and the contraband was seized. On the day following, the S.I of Police prepared an inventory and the contraband alongwith it was produced before the jurisdictional Magistrate. Packets were opened for the purpose of verification by the Magistrate and certification of the correctness of its contents and repacked. Contraband seized as such was forwarded to the Chemical Examiner’s Laboratory and in the analysis held there Crl.A. No. 325 of 2020 -:4:- was found as LSD stamps. Investigation was conducted by the Deputy Superintendent of Police and on concluding that a final report chargesheeting that person for offence punishable under Section 8(c) read with Section 22(c) NDPS Act was prepared and laid before the Special Court. It was taken on file by the Special Court. The quantity of contraband involved being commercial quantity, his prayer for enlarging him on bail was declined. A counsel was appointed on his request to defend him in the case at the expense of the State. 3. Upon hearing the prosecution and the defence, a charge was framed by the Special Court for offences under Section 8(c) read with Section 22(c) NDPS Act. It was read over and explained to him. He pleaded not guilty and therefore, trial was scheduled to be held. The accused then filed an application seeking to appoint Advocate O.Ahammed Sherief as his lawyer and that was allowed. 4. To establish its case, prosecution examined PWs 1 to 6, marked as Exts.P1 to P17 and identified MOs 1 to 3. When the evidence of the prosecution was concluded, the accused was examined by the trial court under Section 313(1)(b) of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’) with reference to Crl.A. No. 325 of 2020 -:5:- the incriminating circumstances brought by the prosecution in evidence against him. Accused denied all incriminating circumstances put to him. A plea was also raised that his involvement in a theft case earlier was the cause for his false implication in the case on hand. He also took a specific stand that the contraband was seen by him firstly from the police station. 5. Both sides were heard under Section 232 Cr.P.C. and reasons having not been made out to record an order of acquittal, the accused was called upon to enter on his defence. A single document was marked on the side of the accused as Ext.D1. Both sides were heard and ultimately the accused was found guilty, convicted and sentenced by the judgment under challenge. 6. Sri.T.G.Rajendran, the learned counsel submitted on behalf of the appellant that a seizure mahazar was not prepared from the spot. According to him, sample of the contraband was not drawn from the spot and therefore there is total want of reliable evidence to establish seizure of the contraband. 7. It is contended furthermore that in the arrest memo prepared and marked in evidence as Ext.P5, signature of accused was not obtained, but, it contain only the signature of the person Crl.A. No. 325 of 2020 -:6:- who prepared it. According to him want of signature of the accused in Ext.P5 substantiates the stand taken by the accused during his examination under Section 313(1)(b) Cr.P.C that he was not arrested from the spot and that the contraband was seen by him firstly from the police station. According to him, the trial court is totally unjustified in the context in taking a view that the arrest memo is not a material document. According to him, explanation for not obtaining the signature of the accused in Ext.P5 was not forthcoming from PW2. 8. According to the learned counsel the report prepared by PW2 and forwarded to his superior officer was marked in evidence as Ext.P8. According to him, in the seizure mahazar weight of LSD stamps is shown as 580mg whereas in Ext.P8, it was shown as 550 mg. According to him, PW2 has given evidence that materials were seized, but those were not found produced. 9. According to him, the date of occurrence is shown in the inventory (Ext.P11) as 20.12.2018 instead of 19.12.2018, and the place of seizure as ‘Thamarassery’ instead of ‘Mukkam’. According to him, in view of the discrepancies of the above nature having been noticed in the inventory (Ext.P11), it cannot Crl.A. No. 325 of 2020 -:7:- be considered as prepared with reference to the seizure of the contraband in the case on hand. Contention was also raised that weight of the entire stamps was taken which ought not to have been done. According to him, the trial court is totally erred in taking a view that paper and LSD can be treated as a mixture. 10. The contentions raised by the learned counsel for the appellant need to be dealt with one by one. It was contended firstly that sample was not drawn from the contraband from the place of its seizure and a seizure mahazar was not marked in evidence. According to him, if the seizure mahazar was actually prepared from the spot while seizing the contraband the same would have been produced and marked in evidence. 11. The Sub Inspector of Police, Kunnamangalam was the detecting officer and examined as PW2. He was on combing duty and while travelling from Mannassery to Muthalam during duty, he obtained information that a person was standing in a doubtful circumstance in front of a cycle workshop. Accordingly himself and party proceeded to the spot and found a person answering the descriptions of identity given by the informant. The person was informed of his right to have his body search conducted in the presence of a Gazetted Officer or a Magistrate. He opted for Crl.A. No. 325 of 2020 -:8:- the presence of a Gazetted Officer and therefore the Divisional Forest Officer was requisitioned to be available at the spot. The examination of the body of the person was conducted in his presence and the contraband was recovered. The Sub Inspector of Police who detected the alleged offence was examined before the court as PW2 and the DFO as PW4. PW2 did not say anything about the preparation of a seizure mahazar from the spot. Seizure mahazar marked in evidence is nothing but, one prepared while seizing the dress of the accused. 12. Seizure mahazar is a contemporaneous document and is essential to be prepared while a contraband is seized. In the case on hand PW2 has a case that in the search some contraband articles were found possessed by the accused and those have been recovered, packed, sealed and seized. A seizure mahazar has to be prepared during the above process and it would describe all the formalities complied with by the detecting officer during seizure with a view to form evidence during trial. This Court is convinced on a perusal of the documentary evidence adduced by the prosecution in the case on hand that a seizure mahazar does not form it’s part. PW2 failed to say anything about it’s preparation. Therefore, it can be drawn from the ## Crl.A. No. 325 of 2020 -:9:- circumstances of the case that a seizure mahazar was not prepared in the case on hand. 13. According to PW2, the contraband recovered from the possession of the accused was packed and sealed. Admittedly sample was not drawn from the spot, but, an inventory was prepared, prior to production of that before the Court. Thereafter the inventory and the packet containing the contraband were forwarded to Judicial First Class Magistrate Court-II, Thamarassery. An application was filed before the Magistrate, seeking for verification of the contraband and certification of its correctness. The sealed packet was therefore opened in the presence of the Magistrate and after verification and certification, it as such was packed again and sent to the chemical examiner’s laboratory for analysis. 14. The procedure for drawal of sample of the contraband seized was specifically dealt with, in Section 52A which was brought into the NDPS Act, by way of amendment, with effect from 05.05.2015. It reads : ## “ **[52A. Disposal of seized narcotic drugs and** -- **psychotropic substances.** [(1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, Crl.A. No. 325 of 2020 ## -:10:- constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified. (2) Where any narcotic drugs, psychotropic substances, controlled substances or conveyances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs, psychotropic substances, controlled substances or conveyances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances in any proceedings under this Act and make an application, to any Magistrate for the purpose of-- (a) certifying the correctness of the inventory so prepared; or Crl.A. No. 325 of 2020 -:11:- (b) taking, in the presence of such magistrate, photographs of such drugs, substances or conveyance and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.” The Section provides that on production of the contraband before the Magistrate, sample of it has to be drawn in his presence. In the case on hand the contraband was produced before the Magistrate and the quantity being small, sample was not drawn from it. After verification and certification of its correctness, the same as such was packed and sealed and forwarded to the Chemical Examiner’s Laboratory. A mahazar was prepared describing the formalities complied with before the Crl.A. No. 325 of 2020 -:12:- Magistrate and that is marked in evidence as Ext.P12. It is true that Ext.P12 will not form evidence for the procedures complied with during seizure of the contraband from the spot. The description in Ext.P12 is all about the processes such as breaking open of the packet, verification of its contents and certification of its correctness. 15. It was also urged by the learned counsel that signature of the accused was not procured in the Memo of arrest allegedly prepared from the spot. But it contain only signature of some persons alleged to be witnesses of preparation of the arrest memo. It was canvassed in the context that, the accused was not arrested from the spot. 16. True that seizure mahazar is a contemporaneous document, which would speak about the compliance of the mandatory formalities at the spot while seizing the contraband. PW2 and an official from among the party accompanied PW2 to the spot were examined before the court and they categorically deposed that the contraband was seized from the accused in their presence. The Gazetted Officer who was brought to the place on a demand being made by the accused has also given evidence as PW4. Though subjected to cross examination on Crl.A. No. 325 of 2020 -:13:- every minute aspects spoken by them during examination in chief, the defence counsel could not drawn out anything liable to discredit them. The version of the official witnesses when corroborated in material aspects of the prosecution case, the non-preparation of a seizure mahazar and non-marking of that in evidence cannot be said to have adverse impact on the prosecution case. 35 LSD stamps were established as seized from the accused. The description of the contraband made in the inventory and the arrest memo prepared in the case on hand and marked in evidence as Exts.P11 and P5 also tally with. The contention that the signature of the accused was not obtained in the arrest memo and therefore the accused cannot be taken to have been arrested from the spot is not a tenable argument when the witnesses available during it’s preparation have affixed their signature in it from the spot and identified those during trial. Moreover, PW2 to PW4 have also deposed about the presence of the accused at the spot, recovery of the contraband from him and seizure of it. This Court has no hesitation in the light of the discussion made hereinabove to hold that, for failure of the prosecution to obtain the signature of the accused in the arrest memo, the entire prosecution case is defeated. Ext.P12 is Crl.A. No. 325 of 2020 -:14:- a seizure mahazar prepared in the presence of a Magistrate. It clearly describes about the production of the contraband in sealed packet before the Magistrate, opening of it and packing of it again after the Magistrate being convinced of the quantum and nature of the contraband. On an application filed by the investigating officer the contraband was verified with the inventory produced and its correctness was also certified by the Magistrate. 17. The contention furthermore raised by the learned counsel was that the report filed by PW2 under Section 57 NDPS Act suffers for illegality in view of the inconsistencies it carry. According to him, as per Ext.P12, the LSD stamps seized weigh 580mg, but in the report allegedly filed under Section 57 NDPS Act, the quantum was shown as 550mg. It was urged by him that the prosecution case is vitiated for the discrepancy appeared in the report regarding the quantum of the contraband. It is further contended by the learned counsel that under Section 57 NDPS Act, a report containing the particulars of the contraband seized is required to be forwarded by PW2, to his immediate official superior. PW2 being the Sub Inspector of Police, his immediate superior officer will be the Circle Inspector of Police. Whereas in Crl.A. No. 325 of 2020 -:15:- the case on hand, the report was forwarded by the detecting officer to the Deputy Superintendent of Police. The report envisaged under Section 57 NDPS Act is meant for maintaining vigilance and supervision by higher officials, transparency in processes like detection and seizure of contraband and to check trapping of persons falsely into offences of the nature. Therefore, for the reason that a report under Section 57 NDPS Act was not forwarded to the immediate official superior of PW2, the accused cannot be said to have been prejudiced. The dictum of the Apex Court in **State of Punjab v. Balbir Singh** [1994 (3) SCC 299] as dealt with in paragraph 25 being apposite in the context is extracted hereunder : “25. Sections 52 and 57 come into operation after the arrest and seizure under the Act. Somewhat similar provisions are also there in the CrPC. If there is any violation of these provisions, then the Court has to examine the effect of the same. In that context while determining whether the provisions of the Act to be followed after the arrest or search are directory or mandatory, it will have to be kept in mind that the provisions of a statute creating public duties are generally speaking directory. The provisions of these two sections contain procedural instructions for strict compliance by the officers. But if there is no strict compliance of any of these instructions that by itself cannot render the acts done by these officers null and void and at the most it may affect the probative value of the Crl.A. No. 325 of 2020 ## -:16:- evidence regarding arrest or search and in some cases it may invalidate such arrest or search. But such violation by itself does not invalidate the trial or the conviction if otherwise there is sufficient material. Therefore it has to be shown that such non-compliance has caused prejudice and resulted in failure of justice. The officers, however, cannot totally ignore these provisions and if there is no proper explanation for noncompliance or where the officers totally ignore the provisions then that will definitely have an adverse effect on the prosecution case and the courts have to appreciate the evidence and the merits of the case bearing these aspects in view. However, a mere non-compliance or failure to strictly comply by itself will not vitiate the prosecution.” Therefore, the arguments advanced by the learned defence counsel in that regard is only to fail. It was contended further by the learned counsel that the packing materials though seized were not produced. That also does not have any adverse impact as desired by the defence in the prosecution case that stood established otherwise by satisfactory evidence. 18. The discrepancies pointed out in Ext.P8 to the effect that the date of seizure was noted as 20.12.2018 instead of 19.12.2018 and the place of seizure as ‘Thamarassery’ instead of ‘Mukkom’ are also unlikely to cause any prejudice to the accused and therefore discarded. Crl.A. No. 325 of 2020 -:17:- 19. The prosecution can be taken to have established its case successfully, beyond reasonable doubt. Possession of the contraband by the accused and its recovery from him are also established by cogent and reliable evidence on record. The guilt against the accused was arrived at by the trial court on a proper appreciation of the oral as well as documentary evidence adduced by the prosecution. The arguments advanced by the learned counsel for the appellant are insufficient to draw a conclusion different from the one already drawn by the trial court and to reverse the judgment under challenge. Crl.Appeal fails for the reasons and is dismissed. **Sd/-** **MARY JOSEPH JUDGE** NAB/ttb