Crl.A. Nos. 484/2014 & 882/2014, High Court of Kerala at Ernakulam (Askaf S/O Azeez v. State of Kerala; Ganesh S/O Velayudhan v. State of Kerala)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 04TH DAY OF FEBRUARY 2020 / 15TH MAGHA, 1941** ## **CRL.A.No.484 OF 2014** **ARISING FROM THE JUDGMENT IN SC 70/2012 DATED 12-02-2014 OF SPECIAL COURT (NDPS ACT CASES), VADAKARA** **CRIME NO.956/2011 OF SULTHAN BATHERI POLICE STATION** ## **APPELLANT/ACCUSED:** ## **ASKAF** **S/O.AZEEZ, PAYYAYIL HOUSE, KAYYAYAD, SULTHAN BATHERY.** **BY ADV. SHRI.AJIVASS.V.A( STATE BRIEF)** ## **RESPONDENT/COMPLAINANT:** - **1 SUB INSPECTOR OF POLICE, SULTHA BATHERY 670 114.** - **2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.** ## **R1-2 AJITH MURALI PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 2901-2020, ALONG WITH CRL.A.882/2014(D), THE COURT ON 04-022020 DELIVERED THE FOLLOWING:** Crl.A.Nos.484/2014 & 2 882/2014 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 04TH DAY OF FEBRUARY 2020 / 15TH MAGHA, 1941** ## **CRL.A.No.882 OF 2014** **ARISING FROM THE JUDGMENT IN SC 70/2012 DATED 12-02-2014 OF SPECIAL COURT (NDPS ACT CASES), VADAKARA** **CRIME NO.956/2011 OF SULTHAN BATHERI POLICE STATION** ## **APPELLANT/2ND ACCUSED:** **GANESH S/O.VELAYUDHAN, PUTHAN VEETTIL HOUSE, AMBALAVAYAL P.O., ASUKUTHY, VELLACHATTAM, NENMENI AMOM.** **BY ADV. SRI.VISHNUPRASAD NAIR BY GANESH(PARTY IN PERSON)** ## **RESPONDENT/COMPLAINANT:** **1 INSPECTOR OF POLICE SULTHAN BATHERY-670 120. 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** ## **SRI AJITH MURALI-PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 2901-2020, ALONG WITH CRL.A.484/2014, THE COURT ON 04-02-2020 DELIVERED THE FOLLOWING:** Crl.A.Nos.484/2014 & 3 882/2014 ## **R.NARAYANA PISHARADI, J** ************************ Crl.A.Nos.484 of 2014 & 882 of 2014 --------------------------------------------Dated this the 4[th] day of February, 2020 ## **J U D G M E N T** These appeals are filed by the first and the second accused in Sessions Case No. 70 of 2012 on the file of the Court of the Special Judge (NDPS Act Cases), Vatakara. 2. The appellants/accused stand convicted for the offences punishable under Sections 22(b), 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act'). The trial court has sentenced them to undergo rigorous imprisonment for a period of eight years each and to pay a fine of Rs.1,00,000/- each and in default of payment of fine, to undergo rigorous imprisonment for a period of one year each for the offence under Section 22(b) of the Act, to undergo rigorous imprisonment for a period of eighteen years Crl.A.Nos.484/2014 & 4 882/2014 each and to pay a fine of Rs.2,00,000/- each and in default of payment of fine, to undergo rigorous imprisonment for a period of two years each for the offence under Section 22(c) of the Act and to undergo rigorous imprisonment for a period of eighteen years each and to pay a fine of Rs.2,00,000/- each and in default of payment of fine, to undergo rigorous imprisonment for a period of two years each for the offence under Section 29 of the Act, with a direction that the substantive sentences of imprisonment shall run concurrently. 3. The prosecution case is that, on 22.12.2011, at about 11.45 hours, while the two accused were travelling on the motorcyle KL-12-8304, the Sub Inspector of Sulthan Bathery police station intercepted the motorcycle and conducted search of the body of the accused and found that the first accused was carrying with him 30 ampoules of Diazepam injection ID Empose and the second accused was carrying with him 100 ampoules of injection IP Empose and 120 ampoules of injection IP Lupiesic. The Sub Inspector arrested the accused and seized the motor cycle and the materials after complying with the formalities. Crl.A.Nos.484/2014 & 5 882/2014 4. Both the accused pleaded not guilty to the charge framed against them by the trial court for the offences punishable under Sections 22(b), 22(c) and 29 of the Act. The prosecution examined PW1 to PW7 and marked Exts.P1 to P13 documents and MO1 to MO6 material objects. No evidence was adduced by the accused. 5. After appreciating the evidence adduced by the prosecution and the contentions raised by both sides, the trial court found the two accused guilty of the offences charged against them and convicted them and sentenced them as mentioned above. 6. Heard learned counsel for the appellants and also the learned Public Prosecutor. 7. The Sub Inspector who detected the offence was examined as PW1. The Civil Police Officer who was with him was examined as PW2. The examination-in-chief of these witnesses was not conducted in the open court in the presence of the appellants. The aforesaid witnesses filed affidavits in lieu of examination-in-chief narrating the search and seizure. Crl.A.Nos.484/2014 & 6 882/2014 Thereafter, the remaining part of their examination-in-chief was conducted in the open court in the presence of the appellants. 8. The records of the case do not reveal on what basis or for what reason the examination-in-chief of PW1 and PW2 were conducted and recorded on the basis of affidavits filed by those witnesses. 9. Tendering evidence on affidavit would be legal and permissible only if provided by law. The Act does not contain any provision in that regard. The Indian Evidence Act, by virtue of Section 1 of that Act, is not applicable to affidavits filed in any court. The Criminal Procedure Code, except in certain exceptional cases, does not provide for filing affidavit in proof of facts. 10. In **Kajal v. State of Kerala : 2015 (1) KHC 91 :** **2015 (1) KLT 908** , this Court has held as follows: _“The learned Special Judge went wrong in accepting and acting upon the affidavits filed by PW1 and PW2 in lieu of their examination- in- chief and those affidavits are liable to be excluded from consideration. The result is that the witnesses were cross-examined without their being examined_ Crl.A.Nos.484/2014 & 7 882/2014 _in chief. This is a procedure unknown to law. The only order this Court can make is to set aside the judgment and order of conviction and remit the case to the Trial Court for disposal in accordance with law”._ 11. The position here is the same as in the above case. The trial of the case, as far as it pertains to examination of the witnesses PW1 and PW2, is vitiated. 12. Even if any law or decision of the Apex Court permits examination of witnesses on affidavit in trial for the offences under the Act, it is to be noted that the affidavits filed by PW1 and PW2 were not proper as they were not countersigned by any competent person. It is not even known whether the Public Prosecutor who conducted the trial of the case was aware of the contents of the affidavits filed by those witnesses. 13. In the aforesaid circumstances, the impugned judgment is liable to be set aside. The case has to be decided afresh by the trial court. But it is not necessary to recall all the witnesses. Only PW1 and PW2 shall be recalled and examined afresh. After their examination afresh, the accused have to be further Crl.A.Nos.484/2014 & 8 882/2014 examined by the court under Section 313 Cr.P.C on the basis of their fresh evidence. 14. In the result, the appeals are allowed. The impugned judgment and the order of conviction and sentence against the appellants are set aside. The case is remanded to the trial court for fresh disposal, as directed above, in accordance with law. 15. The appellants are at liberty to file application for bail before the trial court. If any such application is filed, the trial court shall consider it and pass appropriate orders after hearing the prosecution. 16. The trial court shall make all earnest efforts to dispose of the case as expeditiously as possible, at any rate, within a period of six months from the date of receipt of the copy of this judgment. The Registry shall return the lower court records forthwith. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr **True Copy** **PS to Judge**