Biju and Joy v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** # **MONDAY, THE 09TH DAY OF NOVEMBER 2020 / 18TH KARTHIKA, 1942** ## **CRL.A.No.1373 OF 2005** **[AGAINST THE JUDGMENT DATED 9.8.2005 IN C.C.NO.11/2004 ON THE FILE OF THE SPECIAL JUDGE FOR NDPS CASES, THODUPUZHA]** ## **APPELLANTS/ACCUSED:** **1 BIJU, S/O.SCARIA, NALLUVELIL HOUSE,KURISUKUTHI KARA,, KONNATHADI VILLAGE, UDUMBANCHOLA TALUK. 2 JOY, S/O.MATHAI PATHROSE, THENGUMTHANAM HOUSE, MANIYARA KARA,KONNATHADI VILLAGE, UDUMBANCHOLA TALUK.** ## **BY ADV. SRI.NIREESH MATHEW** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **R1 BY SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD 09-11-2020 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.APPEAL No.1373 of 2005 2** ## **JUDGMENT** ## **Dated this the 9th day of November 2020** ... The appellants are the accused in C.C.No.11 of 2004 on the file of the Special Judge for N.D.P.S. Cases, Thodupuzha. 2. The above case is charge sheeted by the Circle Inspector of Excise, Narcotic Enforcement Squad, Adimali under Section 20(b) (ii)(B) of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act). 3. The prosecution case is that, the Circle Inspector of Narcotic Enforcement Squad, Admimaly was doing patrol duty along with excise party on 28.4.2000. Then they could see the accused persons who are two in number carrying gunny bags on their heads which contained ganja weighing 9.200 kgms at ## **CRL.APPEAL No.1373 of 2005 3** Panamkutty and thereby the accused committed the offence punishable under Section 20(b)(ii) (B) of the NDPS Act. 4. To substantiate the case, the prosecution examined PW1 to PW7. Exhibits P1 to P9 are the documents marked on the side of the prosecution. MO1 to MO4 are the material objects. 5. After going through the evidence and documents, the trial court found that, the accused committed the offence under Section 20(b)(ii)(B) of the NDPS Act. The appellants are directed to undergo rigorous imprisonment for three years and to pay fine of Rs.25,000/- each. In default of payment of fine, the appellants are directed to undergo rigorous imprisonment for six months each. 6. Aggrieved by the above conviction and sentence, this Crl.Appeal is filed. **CRL.APPEAL No.1373 of 2005 4** 7. Heard the learned counsel for the appellants and the learned public prosecutor. 8. The learned counsel for the appellants submitted that, the entire prosecution case is vitiated for a simple reason that, an unauthorized person investigated this case and submitted final report. According to the counsel, PW7 is the Circle Inspector of Narcotic Enforcement Squad, Adimaly. The counsel submitted that, he is not an authorized person as per Section 53 of the NDPS Act. The counsel submitted that, the forwarding note is not marked in this case. The counsel submitted that, forwarding note is important because that is a fatal document to prove that the seized articles are reached in the hands of the Analyst. The counsel submitted that, there is a delay of three days in producing the contraband articles before ## **CRL.APPEAL No.1373 of 2005 5** the court. Moreover, the counsel submitted that, the sample reached in the hands of the Analyst only after one month from the date of despatch from the court. There is absolutely no explanation from the prosecution for the delay. The counsel submitted that, for these reasons, the appellants are entitled the benefit of doubt. 9. The learned Public Prosecutor submitted that, there is adequate oral and documentary evidence in this case to prove the offence. The public prosecutor submitted that, this Court may not interfere with the conviction and the sentence on technical grounds. 10. The point for consideration in this case is whether the offence under Section 20(b)(ii)(B)is proved against the appellants ? 11. Altogether seven witnesses were ## **CRL.APPEAL No.1373 of 2005 6** examined by the prosecution. PW1 and PW2 are the alleged independent witnesses who turned hostile to the prosecution. The prosecution relies PW3 and PW4 who are the detecting officer and accompanying officer respectively. PW6 and PW7 are the investigating officers. PW5 is the village officer through whom location sketch is marked. 12. The counsel for the appellants submitted that, PW7 submitted final report in this case. He is only a Circle Inspector of Excise, Narcotic Enforcement Squad, Adimaly. The counsel submitted that, he is not an authorized officer and hence the final report submitted by him will vitiate the prosecution. The counsel relied an unreported judgment dated 8.7.2020 in Crl.Appeal No.1305 of 2015. The relevant portion of the judgment is extracted hereunder: **CRL.APPEAL No.1373 of 2005 7** _“41. Learned Public Prosecutor, on instructions, has submitted that the State Government have not issued any notification under Section 53(2) of the Act investing any officer or class of officers of the Excise Department with the powers of an officer-in-charge of a police station for the investigation of offences under the Act. Absence of a notification issued by the State Government under Section 53(2) of the Act does not affect the authority of the excise officers to conduct investigation of the case. It only means that an excise officer cannot be deemed to be a police officer for the purpose of investigation under the Act and that he has no authority to file any report as envisaged under Section 173(2) Cr.P.C. He would be entitled to file complaint before the competent court. In the instant case, PW5 did not file any report under Section 173(2) Cr.P.C. He filed only a complaint before the competent court._ _42. Section 36A(1)(d) of the Act states that, notwithstanding anything contained in the Code of Criminal Procedure, 1973, a Special Court may, upon perusal of police report of the facts constituting an offence under the Act or upon a complaint made by an officer of the Central Government or a State Government authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial. This provision makes it clear that a Special Court may take cognizance of the offence on a police report or on a complaint made by an officer of the Central Government or State_ ## **CRL.APPEAL No.1373 of 2005 8** _Government authorised by the said Government to file the complaint. It is crystal clear that no officer other than an officer authorised by the government concerned can make a complaint under clause (d) of subsection (1) of Section 36A of the Act. In the instant case, the court had taken cognizance of the offence on the basis of the complaint filed by PW5._ _43. As per G.O.(MS) No. 168/92/TD dated 20.10.1992 published in the Kerala Gazette Extraordinary dated 20.10.1992, the Government of Kerala have authorised all officers of and above the rank of Excise Inspectors of the Excise Department to file complaints in respect of offences under the Act before the special courts within the area of their respective jurisdiction under clause (d) of subsection (1) of Section 36A of the Act. This notification reads as follows:_ “ S.R.O.No.1356/92. -- Under clause (d) of subsection (1) of Section 36A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985), the Government of Kerala hereby authorise all officers of and above the rank of Excise Inspectors of the Excise Department and all officers of and above the rank of Sub Inspectors of the Police Department to file complaints in respect of offences under the Act before the Special Courts within the area of their respective jurisdiction”. _44. The aforesaid notification cannot be_ _understood to mean that all officers of and above the rank of Excise Inspectors of the Excise Department who have jurisdiction over the entire area within the limits of a Special Court have got_ **CRL.APPEAL No.1373 of 2005 9** _power or authority to file complaint in respect of an offence under the Act before such court. The power to file complaint invested as per the above notification is on all officers of and above the rank of Excise Inspectors of the Excise Department in respect of offences under the Act within the area of their respective jurisdiction. The expression “their respective jurisdiction” relates to the excise officers and not to the special courts. It means that, only in respect of offences under the Act committed within the area of his jurisdiction, an excise officer has got power to file complaint._ _45. In the instant case, admittedly, PW5 Excise Circle Inspector had no jurisdiction over the place where the offence was committed. The place of occurrence was outside the area of his jurisdiction. Only the State Government has the power to authorise such an officer to file complaint in respect of an offence under the Act before the Special Court. The Deputy Excise Commissioner had no authority to authorise PW5 to file a complaint or final report before the Special Court in respect of an offence committed outside the area of jurisdiction of PW5. It follows that PW5 had no authority to file the complaint in respect of the offence committed in this case._ _46. In view of the provision contained in clause (d) of Section 36A of the Act, the Sessions Court or the Special Court had no jurisdiction to take_ ## **CRL.APPEAL No.1373 of 2005 10** _cognizance of the offence on the basis of the complaint filed by PW5, who was an officer not authorised by the State Government. Cognizance of the offence taken by the court is illegal and non est. It is not a matter of curable irregularity. It is a matter which cuts the root of the prosecution against the accused. The trial itself is vitiated (See Roy v. State of Kerala : AIR 2001 SC 137)._ _47. In the light of the discussion above, the appellant is entitled to be acquitted solely on the ground that the prosecution against him was based on a complaint filed by an officer who had no authority to file a complaint under clause (d) of Section 36A of the Act and that the court had no jurisdiction to take cognizance of the offence under the Act upon such complaint._ _48. Consequently, the appeal is allowed. The order of conviction and sentence passed against the appellant/accused by the trial court under Section 8(c) read with Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act is set aside. The appellant/accused is found not guilty of the aforesaid offence and he is acquitted. He shall be released forthwith, if his detention in jail is not required in connection with any other case.”_ 13. In the light of the above dictum laid down by this Court, it is clear that, PW7 who ## **CRL.APPEAL No.1373 of 2005 11** is the Circle Inspector of Excise, Narcotic Enforcement Squad, Adimaly is not an authorized person as per Section 53 of the NDPS Act. For that simple reason, the appellants in this case are entitled for acquittal. 14. Moreover, the forwarding note is not marked in this case. Forwarding note is a fatal document as far as NDPS and Abkari cases are concerned. This will show that, the seized articles are reached in the hands of the Analyst. Unless the prosecution is able to prove that, the seized article is arrack, the prosecution is not sustainable. This Court in several decisions considered the relevancy of the forwarding note. Some of the decisions are **Gireesh @ Manoj v. State of Kerala (2019(4) KLT 79), Vijayan @ Pattalam Vijayan and another v. State of Kerala (2018 (2) KHC 814)** and **Prakasan and another v.** **CRL.APPEAL No.1373 of 2005 12** ## **State of Kerala (2016 KHC 96)** . The relevant portion of the judgment in **Gireesh's** case (supra) extracted hereunder: _“14. There is another lacuna in the_ _prosecution case. The copy of the forwarding note prepared by PW5 for sending the samples for chemical analysis was not marked in evidence. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottles containing the samples. In the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same samples taken at the spot of the occurrence had reached the chemical examiner for analysis in a tamper proof condition (See Prakasan v. State of Kerala (2016 KHC 96 : 2016 (1) KLD 311 : 2016 (1) KHC SN 40 : 2016 (1) KLT SN 96) and Gopalan v. State of Kerala (2016 KHC 541 : 2016 (2) KLD 469 : 2016 (3) KLT SN 16)).”_ 15. It is also submitted by the counsel for the appellants that, there is a delay of three days in producing the contraband articles before the court. The detection of the contraband articles was on 28.4.2000 and **CRL.APPEAL No.1373 of 2005 13** the property reached in the court only on 2.5.2000. Similarly, the counsel also submitted that, the property was despatched from the Special Court on 8.5.2000 through the Excise Guard by name Janardhanan. He was not examined in this case. But the sample reached in the hands of the Analyst only on 8.6.2000. There is absolutely no explanation from the prosecution about the delay from 8.5.2000 to 8.6.2000. As stated earlier, the Excise Guard Janardhanan through whom the sample was forwarded to the Analyst is not examined in this case. In such circumstances, I think, the accused is entitled the benefit of doubt. Therefore, this criminal appeal is allowed. The conviction and sentence imposed on the appellants as per the judgment dated 9.8.2005 in C.C.No.11 of 2004 on the file of the Special Judge for N.D.P.S. Cases, **CRL.APPEAL No.1373 of 2005 14** Thodupuzha are set aside. The appellants are set at liberty. Bail bond, if any, executed by the appellants are cancelled. ## **Sd/-** **P.V.KUNHIKRISHNAN** **pkk** **JUDGE**