Criminal Appeal Nos. 2100, 2107, 2108 and 2109 of 2006 v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 6[TH] DAY OF AUGUST 2024 / 15TH SRAVANA, 1946** **CRL.A NO. 2100 OF 2006** **AGAINST THE JUDGMENT IN SC NO.9 OF 2006 OF SPECIAL COURT (NDPS ACT CASES), THODUPUZHA** ## **APPELLANTS/ACCUSED:** **PALANISWAMY, S/O MUTHURAJ, 1/486, CHINNAKANAL PANCHAYAT, GAP KARA, CHINNAKANAL VILLAGE.** **BY ADV S.RAJEEV** ## **RESPONDENT/COMPLAINANTS:** **STATE OF KERALA REPRESENTED BY CIRCLE INSPECTOR OF POLICE, MUNAR, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV PUBLIC PROSECUTOR – SRI.SANAL P.RAJ** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 01.08.2024, ALONG WITH CRL.A.2107/2006, 2108/2006 AND CONNECTED CASES, THE COURT ON 06.08.2024 DELIVERED THE FOLLOWING:** 2 Crl.Appeal Nos. 2100, 2107, 2108 and 2109 of 2006 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 6[TH] DAY OF AUGUST 2024 / 15TH SRAVANA, 1946 CRL.A NO. 2107 OF 2006** **AGAINST THE JUDGMENT IN SC NO.9 OF 2006 OF SPECIAL COURT (NDPS ACT CASES), THODUPUZHA** **APPELLANT/ACCUSED:** **SHAJI,S/O GEORGE, PADIPURACKAL HOUSE, KALLARKARA, PALLIVASAL VILLAGE.** **BY ADV P.CHANDY JOSEPH** ## **RESPONDENT/COMPLAINANTS:** **STATE OF KERALA REPRESENTED BY CIRCLE INSPECTOR OF POLICE, MUNAR, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY ADV SR.PUBLIC PROSECUTOR – SRI.VIPIN NARAYAN** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 01.08.2024, ALONG WITH CRL.A.2100/2006 AND CONNECTED CASES, THE COURT ON 06.08.2024 DELIVERED THE FOLLOWING:** 3 Crl.Appeal Nos. 2100, 2107, 2108 and 2109 of 2006 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 6[TH] DAY OF AUGUST 2024 / 15TH SRAVANA, 1946 CRL.A NO. 2108 OF 2006** **AGAINST THE JUDGMENT IN SC NO.9 OF 2006 OF SPECIAL COURT (NDPS ACT CASES), THODUPUZHA** ## **APPELLANTS/ACCUSED1:** **JOHNSON, S/O PRAKASH, 1/7A OF CHINNAKANAL PANCHAYATH, KELAVIPARA BHAGOM, GAP KARA.** **BY ADV C.K.VIDYASAGAR** ## **RESPONDENT/COMPLAINANTS:** **STATE OF KERALA REPRESENTED BY CIRCLE INSPECTOR OF POLICE, MUNAR, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** ## **BY ADV PUBLIC PROSECUTOR – SRI.SANAL P.RAJ** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 01.08.2024, ALONG WITH CRL.A.2100/2006 AND CONNECTED CASES, THE COURT ON 06.08.2024 DELIVERED THE FOLLOWING:** 4 Crl.Appeal Nos. 2100, 2107, 2108 and 2109 of 2006 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA TUESDAY, THE 6[TH] DAY OF AUGUST 2024 / 15TH SRAVANA, 1946 CRL.A NO. 2109 OF 2006** **AGAINST THE JUDGMENT IN SC NO.9 OF 2006 OF SPECIAL COURT (NDPS ACT CASES), THODUPUZHA** **APPELLANT/ACCUSED NO.2:** **ANTONY,S/O XAVIER, KELAVIPARA BHAGAM, GAP KARA, CHINNAKANAL VILLAGE.** **BY ADV T.I.ABDUL SALAM** ## **RESPONDENT/COMPLAINANTS:** **STATE OF KERALA REPRESENTED BY CIRCLE INSPECTOR OF POLICE, MUNAR, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY ADV SR.PUBLIC PROSECUTOR – SRI.VIPIN NARAYAN** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 01.08.2024, ALONG WITH CRL.A.2100/2006 AND CONNECTED CASES, THE COURT ON 06.08.2024 DELIVERED THE FOLLOWING:** 5 Crl.Appeal Nos. 2100, 2107, 2108 and 2109 of 2006 ## **C.S.SUDHA, J.** **------------------------------------------------------Crl.Appeal Nos. 2100, 2107, 2108 and 2109 of 2006 -----------------------------------------------------Dated this the 6th day of August 2024** ## **J U D G M E N T** In these appeals filed under Section 374(2) Cr.P.C., the appellants who are accused nos.1 to 4 in S.C.No. (NDPS) 9/2006 on the file of the Special Judge for NDPS Cases, Thodupuzha, challenge the conviction entered and sentence passed against them for the offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act). 2. The prosecution case is that accused nos.1 to 4 on 23/11/2004 at 10:45 p.m. were found illegally transporting 7kg. of dried ganja. Accused no.1 to 3 were the passengers and the fourth accused, the driver of autorickshaw bearing registration 6 Crl.Appeal Nos. 2100, 2107, 2108 and 2109 of 2006 number KL-7/AQ-7790. Accused no.1 to 4 are alleged to have purchased dried ganja from the fifth accused. Hence, the accused were alleged to have committed the offence punishable under the above mentioned Section. 3. When the accused persons appeared before the trial court on receipt of summons, they were served with copies of all the relevant prosecution records. A charge for the offence under Section 20 (b) punishable under Section 20(b)(ii)(B) of the Act was framed, read over and explained to the accused to which they pleaded not guilty. 4. PWs.1 to 7 were examined and Exts.P1 to P16 were got marked in support of the prosecution case. After the close of the prosecution evidence, the accused were questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence of the prosecution. The accused denied all those circumstances and 7 Crl.Appeal Nos. 2100, 2107, 2108 and 2109 of 2006 maintained their innocence. 5. As the trial court did not find it a fit case to acquit the accused under Section 232 Cr.P.C, they were asked to enter on their defence and adduce evidence in support thereof. No oral or documentary evidence was adduced by the accused persons. 6. On an appreciation of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found accused nos.1 to 4 guilty of the offence punishable under Section 20(b)(ii)(B) of the Act and hence sentenced them to rigorous imprisonment for two years and to a fine of ₹25,000/- and in default of payment of fine to rigorous imprisonment for six months each. The fifth accused was acquitted of the offence under Section 235(1) Cr.P.C. 7. The only point that arises for consideration in these appeals is whether the conviction entered and sentence passed against the accused persons by the trial court are sustainable or 8 Crl.Appeal Nos. 2100, 2107, 2108 and 2109 of 2006 not. ## 8. Heard both sides. 9. The prosecution relies on the testimony of PW3, the detecting officer and PW6, a police constable of the Munnar police station who is stated to have been present in the team along with PW3 to substantiate the case. PW3, the then Circle Inspector of Police, Munnar police station, deposed that on 23/11/2004 at 08:00 p.m. he was on law and order duty along with his team. By about 10:45 p.m. when they reached the bridge at the place by name Nallathanni they saw an autorickshaw bearing registration number KL-7/AQ-7790 speeding from the Marayur side and proceeding towards Munnar. PW3 signalled the vehicle to be stopped. Accused nos.1 to 3 were passengers in the autorickshaw. Two bundles were seen on the rear side of the vehicle adjacent to their seat. PW3 enquired about the contents of the bundles. When PW3 and his team started inspecting the 9 Crl.Appeal Nos. 2100, 2107, 2108 and 2109 of 2006 bundles, the fourth accused, the autorickshaw driver took to his heels. On examination of the bundles, it was found to contain dried ganja, which on weighing was found to have a weight of 7kg. Necessary formalities were done and the contraband articles seized, sample extracted, packed and sealed. According to PW3, Ext.P1, the seizure mahazar prepared when the contraband articles were seized has been attested by the independent witnesses, namely, PW1 and PW2 who were present at the spot. Ext.P3 series are the paper slips containing the signatures of A1 to A3 as well as PW1 and PW2, which were prepared when the samples were extracted. Accused nos.1 to 3 were arrested and Exts. P6 series and P7 series are the arrest memos and inspection memos respectively. Thereafter, he along with the accused persons and the material objects, proceeded to the police station where crime no.193/2004 of Munnar station was police registered. Ext.P8 is the FIR registered by him. Ext.P9 a copy of 10 Crl.Appeal Nos. 2100, 2107, 2108 and 2109 of 2006 the report of the incident sent to his superior officer. On interrogating the accused, they revealed that the contraband had been purchased from the fifth accused. Therefore, he proceeded to the house of the fifth accused and conducted a search. Ext.P10 is the search memo prepared by him. The material objects were produced before the court as per Ext.P13 property list. As per Ext.P14 forwarding note, he requested the court to send the samples for chemical examination. According to him, the further investigation was conducted by PW7. 10. PW3 is supported by PW6, another police official who is alleged to have been present along with him in the team. PW1 and PW2, the independent witnesses admitted their signatures in Ext.P1 mahazar and Ext.P3 series paper slips prepared by PW3 when the samples were taken from the contraband and the packets sealed. However, they turned hostile and deposed that they did not witness the seizure and arrest. 11 Crl.Appeal Nos. 2100, 2107, 2108 and 2109 of 2006 11. PW4, the then Dy.S.P., Munnar deposed that PW3 had forwarded Exts.P5 and P9 and that he being the immediate superior officer, the latter had informed him of the incident. PW5 is the Village Officer, who prepared Ext.P15 site plan. PW7, the then Circle Inspector of Police, Munnar completed the investigation and submitted the charge sheet before the court. The chemical analysis report has been marked as Ext.P16. 12. Apart from the testimony of the official witnesses, there is no independent evidence to support the prosecution case. It is true that merely because independent witnesses do not support the prosecution case, is no ground to reject the testimony of the official witnesses. If the testimony of the official witnesses are found to be creditworthy and it inspires confidence in the mind of the court, then there is no bar in relying on the same to arrive at a conclusion regarding the guilt of the accused. Though PW3 and PW6 were extensively cross examined, nothing was 12 Crl.Appeal Nos. 2100, 2107, 2108 and 2109 of 2006 brought out to discredit their testimony. However doubts arise regarding the prosecution story that seizure was effected on 23/11/2004 at 10:45 p.m. at the place of occurrence alleged in the final report. This is due to the presence of the crime number in Ext.P6 series and Ext.P7 series arrest memos and inspection memos alleged to have been prepared by PW3 at the spot when accused nos.1 to 3 were arrested. Ext.P8 FIR is seen registered at 12:30 a.m. whereas the incident is alleged to have taken place on 23/11/2004 at 10:45 p.m. If PW3 is to be believed, after seizing the contraband and arresting the accused, he had proceeded to the police station and thereafter registered Ext.P8 FIR on reaching the police station. PW3 has no case that he had entered the crime number, that is, crime no.193/2004 in Exts. P6 series and P7 series after he had reached the police station and registered Ext.P8 FIR. No explanation is forthcoming from PW3 as to how the crime number finds a place in the arrest memos and the 13 Crl.Appeal Nos. 2100, 2107, 2108 and 2109 of 2006 inspection memos alleged to have been prepared at the scene of occurrence. PW3 who had arrested the accused, registered the crime and prepared Ext.P8 FIR was duty bound to explain the presence of the crime number in the arrest memos and inspection memos. However, no explanation has been offered by the prosecution with regard to the presence of the crime number in the arrest memos and the inspection memos. This creates doubt about the manner in which the seizure and arrest were effected (See **Rafeeque v. Sub Inspector of Police, Kunnamkulam Police Station** , **2020 (3) KHC 715** ; **Zofar v. State, 2000 KHC 2209** ; **Kailash @ Kuddu v. State of Delhi** , **2000 KHC 2334** and **Karunakar Bindhani v. State of Kerala** , **2016 KHC 758** ). That being the position, the case of seizure and arrest at the place of occurrence raises doubts regarding the prosecution case. 13. The incident is alleged to have taken place on 23/11/2004 at 10:45 p.m. However, the material objects are seen 14 Crl.Appeal Nos. 2100, 2107, 2108 and 2109 of 2006 to have reached the court only on 29/11/2004. This was pointed out as yet another flaw in the prosecution case. PW3 deposed that the same were kept in his safe custody till he produced the same before the court. However, he does not explain the reasons why it took about five days for him to produce the same before the court. Mere delay in producing the articles before the court is not fatal to the prosecution, if a plausible explanation given and also when there are other sufficient and satisfactory evidence to support the prosecution case. 14. Yet another argument advanced by the learned counsel for the accused persons is that the sample was taken from the court by a police constable on 02/12/2004 to be presented to the laboratory for chemical analysis. The records reveal that the sample had been handed over to the laboratory only on 07/12/2004. Ext.P16 chemical analysis report shows that the seal in the sample packets were intact. Therefore, it may not be of 15 Crl.Appeal Nos. 2100, 2107, 2108 and 2109 of 2006 much consequence though it would have been ideal had the police constable who was entrusted with the task of producing the samples before the laboratory had been examined. In the light of the aforesaid aspects it may not be safe to convict the accused as the Act provides for stiff sentences. Stiffer the sentence, stiffer is the proof required. That test has not been satisfied in this case by the prosecution and hence for the reasons aforesaid, I find that the accused/appellants are entitled to the benefit of doubt as the prosecution has been unable to prove the case as alleged against the accused persons beyond reasonable doubt. In the result the appeals are allowed. The conviction and sentence of accused nos.1 to 4 for the offence punishable under Section 20(b)(ii)(B) of the Act by the impugned judgment is set aside and the appellants/accused nos.1 to 4 are acquitted under Section 235 (1) Cr.P.C. Their bail bonds shall stand cancelled and they shall be set at liberty forthwith, if not required in any other 16 Crl.Appeal Nos. 2100, 2107, 2108 and 2109 of 2006 case. Interlocutory applications, if any pending, shall stand cancelled. **Sd/-** **C.S.SUDHA JUDGE** Jms