Bharat Lal Ajna v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 12[TH] DAY OF DECEMBER 2023 / 21ST AGRAHAYANA, 1945 CRL.APPEAL NO. 136 OF 2020** **AGAINST THE JUDGMENT DATED 24.10.2019 IN SC 175/2018 OF SPECIAL COURT (NDPS ACT CASES), VADAKARA CRIME NO.578/2018 OF KUNNAMANGALAM POLICE STATION,** ## **KOZHIKODE** ## **APPELLANT/ACCUSED:** **BHARAT LAL AJNA AGED 38 YEARS, S/O.SANKAR LAL AJNA, RSIDING AT PTAHAP GHATT, RAJORA, AVILESHWAR, HATHUNIYA, PRATAPHGARH, RAJASTHAN.** **BY ADV I.V. PRAMOD** ## **RESPONDENT/COMPLAINANT & STATE:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM, KOCHI-31.** **SMT MAYA MN, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 20.11.2023, THE COURT ON 12.12.2023 DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.136 of 2020 ## **P.G. AJITHKUMAR, J.** **--------------------------------------------------Crl.Appeal No.136 of 2020 ---------------------------------------------------Dated this the 12[th] day of December, 2023** ## **JUDGMENT** The appellant is the accused in S.C.No.175 of 2018 on the files of the Special Court NDPS Act cases, Vatakara. He was convicted for an offence punishable under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentenced to undergo rigorous imprisonment for a period of 12 years and to pay a fine of Rs.1,00,000/-. The sentence of default ordered is rigorous imprisonment for a period of one year. Challenging his conviction and sentence, the appellant preferred this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (Code). 2. The charge against the appellant was that at about 12.40 p.m. on 06.09.2018 he was found near the gate of National Institute of Technology (NIT), Mukkam, Kozhikode, possessed with 465 grams of Brown Sugar (Heroine). On prior information, PW1, the Sub Inspector of Police, Kunnamangalam Police Station, intercepted the appellant and on the search of 3 Crl.Appeal No.136 of 2020 the bag in his possession, the contraband was seized resulting in the present prosecution. Following denial of accusation, the prosecution has examined PWs.1 to 7 and marked Exts.P1 to P16 to prove its case. MOs.1 and 2 were identified also. During examination under Section 313(1)(b) of the Code, which was done with the assistance of an interpreter the appellant denied all the incriminating circumstances that appeared in evidence against him. He further stated that following a quarrel he had with one Muhammed Shafi, a police officer, he was taken into custody at Kasaragod Town on 05.09.2018. He was innocent and the case was foisted against him. No evidence was let in by him. The trial court after considering the evidence in detail found that the search and seizure were done quite in conformity to the provisions of Sections 42 and 43 of the NDPS Act. The evidence tendered by PW1, the detecting officer, and also the other witnesses were found reliable and accordingly the charge against the appellant was held to be proved. 3. The conviction of the appellant is assailed on many grounds. Essentially the contentions are that there occurred violation of Sections 42 and 50 of the NDPS Act and there was 4 Crl.Appeal No.136 of 2020 delay in producing the contraband before the court. The mother tongue of the appellant is Hindi and he is not proficient in Malayalam. However, the service of the Translator was not appropriately availed during the process of search and seizure. Further, on contending that the evidence of PW1, who is the official, is not fully corroborated by the evidence of PWs.2 and 6, it is urged that the charge against the appellant is not proved beyond reasonable doubt. Accordingly, it was also contended that the conviction is unsustainable in law or facts. 4. PW1 is the detecting officer. He was the Sub Inspector of Police, Kunnamangalam Police Station on 06.09.2018. He deposed that while he was on duty in the police station, he received an information at 10.30.a.m. that a person was peddling with intoxicating drug near NIT Hostel, Mukkom. He recorded the matter in the General Diary and after forwarding a report to his superior officer as contemplated in Section 42(2) of the NDPS Act, proceeded to the place of occurrence. His colleagues were with him. PW2, a Home Guard, was also taken along with them for the purpose of translation. 5 Crl.Appeal No.136 of 2020 Near the gate of NIT, they could see the appellant sitting on a cement bench. The further version of PW1 is that after bringing PW6, Excise Circle Inspector, he conducted search of the bag in the possession of the appellant and also his person. Inside the bag there was a polythene cover, which contained a brown coloured powder, which was revealed to be brown sugar. It weighs 465 grams. The said contraband, the polythene cover and the bag were packed and sealed. On preparing Ext.P3 seizure mahazar, those articles were taken into custody and accused was arrested. It is his version that in the body search, nothing except currency notes could be seen. 5. PW2 did not support the case of the prosecution, although he admitted that he was present at the time of intercepting the appellant, search of his body as well as the bag in his possession. He has contradicted his previous statement with respect to the manner in which the appellant was questioned and the search was conducted. On material particulars concerning the search and seizure, the version of PW2 stands in tandem to the evidence of PW1. As to the fact of communicating the appellant as regards his right of being 6 Crl.Appeal No.136 of 2020 searched in the presence of a Magistrate or a Gazetted Officer, the version of PW2 is not supportive to the prosecution. 6. PW6 stated that on the request of PW1, he reached the place of occurrence and it was in his presence, the body of the appellant and the bag in his possession were searched. His evidence does not contain every detail of the search and seizure. Whether he had made necessary inquiries in order to decide, a search was necessary is not deposed by him in court. But he deposed that the circumstances in which the appellant was intercepted and the requirement of a search of his body were explained to him by PW1. It is his version that a bag was with the appellant and in his presence only that the bag as well as body of the appellant was searched. PW6 thus happened to be the witness of the search. The contention of the learned counsel for the appellant is that although PW6 was present, the requirements of Section 50, particularly sub-section (3) were not satisfied and therefore there is violation of the provisions of Section 50 of the NDPS Act. 7. As regards the non-compliance of Section 42(2) of NDPS Act, the contention of the learned counsel for the 7 Crl.Appeal No.136 of 2020 appellant is that Ext.P1 report was sent by PW1 not to his immediate official superior, but to the Assistant Commissioner of Police and therefore there was non-compliance of the said provision. Ext.P1 is the intimation. It was sent to the Assistant Commissioner of Police, North, Kozhikode Town. PW1 deposed that Ext.P1 was sent to his immediate official superior. It was sent on 06.09.2018, the date of the occurrence. It was received by the Assistant Commissioner of Police on the same day at 12.30 p.m. When PW1 states that the Assistant Commissioner was his superior officer, there is no reason to disbelieve the said version. There is nothing on record to show that there is another officer in official hierarchy between PW1 and the Assistant Commissioner of Police. Therefore, the said contention of the learned counsel for the appellant cannot be countenanced. There is no violation of the provisions of Section 42(2) of the NDPS Act. 8. The contraband was in a bag in the possession of the appellant. From the evidence of PW1 and PW6, it is explicit that even the bag was searched in the presence of PW6. It was in his presence only the contraband found in the bag was seized. The 8 Crl.Appeal No.136 of 2020 contention of the learned counsel for the appellant concerning non-compliance of Section 50 is that there was no proper communication to the appellant regarding his right to be searched in the presence of a Magistrate or a Gazetted Officer and no option was given to him. The requirement of Section 50 is that if the person to be searched, so requires, the search shall be taken only in the presence of a Gazetted Officer or a Magistrate. When the search is conducted in the presence of a Gazetted Officer or a Magistrate even if the person searched did not demand so, one cannot contend that there was nonobservance of the provisions of Section 50(1) of the NDPS Act. Although PW2 did not state in clear terms that he had translated what PW1 stated regarding the right of the accused to be searched in the presence of a Gazetted Officer or a Magistrate in an appropriate manner, the version of PW1 in that regard is cogent. After restraining the appellant, PW6, who, indisputably, is a Gazetted Officer, was brought and only in his presence the search was conducted. In such circumstances, there cannot be found any violation of the provisions of Section 50(1) of the NDPS Act. 9 Crl.Appeal No.136 of 2020 9. Of course, the learned counsel for the appellant further would submit that for want of proper communication, the appellant could not exercise his option between a Gazetted Officer and a Magistrate and that caused prejudice to him. The right of the accused is to have the presence of a Gazetted Officer or a Magistrate at the time of search and he has no option to insist for the presence of a Magistrate in preference to a Gazetted Officer. Therefore, the said contention also is untenable. 10. The contentions regarding non-compliance of Section 42(2) and Section 50 of the NDPS Act were raised before the court below. After analysing the entire evidence, the learned Special Judge considered the question. Concerning nonobservance of the provisions of Section 50 of the NDPS Act, the court below took note of the law laid down by the Apex Court in **State Of Punjab vs Baldev Singh [AIR 1999 SC 3278], Vijaya Singh Chandubha Jadeja v. State of Gujarat [(2011) 1 SCC 609 : 2010 (4) KLT 547 (SC)]** and **State of Punjab v. Baljinder Singh and another [(2019) 10 SCC 473]** . The principle of law laid down is that when the 10 Crl.Appeal No.136 of 2020 contraband was seized from a bag carried by the accused and in the same course the body of the accused was searched, which did not yield any contraband, the question is one of prejudice, even if there is violation of the provisions of Section 50 of the NDPS Act. The court below held that from the evidence on record it cannot be said that the appellant was caused any prejudice as a result of the way in which the search and seizure was conducted. When the seizure was from the bag in the possession of the appellant, I find no fault to the said finding of the court below. 11. After the search and seizure, the appellant was produced before the court and similarly the contraband was also produced before the jurisdictional Magistrate. It is seen from the evidence of PW1 and also PW7, who conducted the investigation, that the contraband and the other articles were produced before the jurisdictional Magistrate along with an inventory. Samples were drawn in the presence of the Magistrate, who had certified the inventory and also the samples. The said sample was examined in the laboratory. In the examination, report of which is Ext.P16, it was revealed that 11 Crl.Appeal No.136 of 2020 the sample contained heroine. From the said evidence, it has been proved beyond doubt that the article possessed by the appellant was a narcotic drug. 12. As regards the weight of the contraband, there appears some doubt. As per Ext.P3 seizure mahazar, the weight of the contraband noticed is 465 grams. It was packed and sealed at the place of occurrence and later produced before the learned Magistrate. It was in the possession of PW1 himself till the contraband was produced before the jurisdictional Magistrate. The delay of four days in producing the contraband cannot be said to be inordinate or having any adverse effect on the case of the prosecution. When the contraband was weighed before the Magistrate it weighed 461.450 grams. That inconsistency was pointed out by the learned counsel for the appellant and urged to be a reason to disbelieve the case of the prosecution. When there is no inconsistency or reason to doubt regarding the proper custody of the contraband and in the matter of production of the same before the Magistrate, such a slight difference in the weight cannot have the effect of rejecting the prosecution case altogether. The reasons stated by the court 12 Crl.Appeal No.136 of 2020 below to reject that contention of the appellant is sound and sufficient. 13. From the above, I find that the court below, after considering the evidence in its proper perspective, had come to the conclusion that the charge against the appellant has been proved beyond reasonable doubt. The contraband possessed by the appellant is of commercial quantity. The contentions raised by the learned counsel for the appellant are not able to be accepted, and I find no reason to interfere with the conviction of the appellant by the court below. 14. The appellant was sentenced for the offence under Section 21(c) of the NDPS Act to undergo rigorous imprisonment for a period of 12 years and to pay a fine of Rs.1,00,000/-. The minimum punishment for the offence is imprisonment for 10 years. There is no allegation that the appellant was convicted for an offence earlier. In the circumstances, I am of the view that sentence can be modified and reduced to rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the appellant shall undergo rigorous imprisonment for a 13 Crl.Appeal No.136 of 2020 period of six months. He is entitled to get set off as ordered by the trial court. 15. The appeal is accordingly allowed in part. Conviction is confirmed. The sentence is modified to rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the appellant shall undergo rigorous imprisonment for a period of six months. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr 14 Crl.Appeal No.136 of 2020 ## **APPENDIX OF CRL.A 136/2020** **PETITIONER ANNEXURES Annexure A1 A TRUE COPY OF THE WEDDING INVITATION TO BE HELD ON 11.12.2022 IS PRODUCED HEREWITH AND MARKED AS ANNEXURE A1.**