CRL.A.281/2016(D); CRL.A.493/2016; CRL.A.1274/2018

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.UBAID** **WEDNESDAY, THE 04TH DAY OF SEPTEMBER 2019 / 13TH BHADRA, 1941** **CRL.A.No.281 OF 2016(D)** **JUDGMENT IN SC 46/2015 OF SPECIAL COURT (NDPS ACT CASES), VATAKARA DATED 9.3.2016** **-------------------** **- APPELLANT/2ND ACCUSED :** **SHAFEEQUE, AGED 28 YEARS, S/O.ABDUL MAJEED, VANCHIPRAYIL HOUSE, AIROOR KARA, THRIKKARIYOOR VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.** **BY ADVS.SRI.MANU TOM CHERUVALLY SRI.BALU TOM SRI.K.R.JITHIN SRI.JERRY VARGHESE** ## **- RESPONDENT/COMPLAINANT :** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.09.2019, ALONG WITH CRL.A.493/2016 AND CRL.A.1274/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.Nos.281 & 493 of 2016 and Crl.A.No.1274/2018 -: 2 :- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.UBAID** **WEDNESDAY, THE 04TH DAY OF SEPTEMBER 2019 / 13TH BHADRA, 1941** **CRL.A.No.493 OF 2016** **JUDGMENT IN SC 46/2015 OF SPECIAL COURT (NDPS ACT CASES), VATAKARA DATED 09-03-2016** **------------------** ## **- APPELLANT/1ST ACCUSED :** **RASIK V.A, AGED 23 YEARS, S/O.ABDUL RAZAK, VANCHIPRAYIL HOUSE, KALIKAVU DESOM, VELLAYUR VILLAGE, NILAMBUR TALUK.** **BY ADVS.SRI.ABRAHAM P.GEORGE SMT.M.D.BEENA SRI.M.RAJENDRAN NAIR SMT.M.SANTHY SRI.K.VINOD KUMAR** ## **- RESPONDENT/COMPLAINANT/STATE :** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.09.2019, ALONG WITH CRL.A.281/2016(D) AND CRL.A.1274/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.Nos.281 & 493 of 2016 and Crl.A.No.1274/2018 -: 3 :- **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE P.UBAID** **WEDNESDAY, THE 04TH DAY OF SEPTEMBER 2019 / 13TH BHADRA, 1941** **CRL.A.No.1274 OF 2018** **JUDGMENT IN SC 46/2015 OF SPECIAL COURT (NDPS ACT CASES), VATAKARA DATED 09-03-2016** **------------------** **- APPELLANT/ACCUSED No.3 :** **SHIHAB, AGED 32 YEARS, S/O.MUHAMMEDALI, NELLIMATTATHIL HOUSE, AYIROORPADAM, PINDIMANA (V), KOTHAMANGALAM (T), ERNAKULAM DISTRICT. BY ADVS.SRI.P.VIJAYA BHANU (SR.) SRI.P.M.RAFIQ SRI.M.REVIKRISHNAN SRI.THOMAS J.ANAKKALLUNKAL SRI.VIPIN NARAYAN SRI.AJEESH K.SASI SRI.V.C.SARATH SMT.POOJA PANKAJ SRUTHY BHAT** ## **- RESPONDENT/COMPLAINANT :** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.09.2019, ALONG WITH CRL.A.281/2016(D) AND CRL.A.493/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.Nos.281 & 493 of 2016 and Crl.A.No.1274/2018 -: 4 :- ## **COMMON JUDGMENT** The appellant in Crl.Appeal No.493 of 2016 is the first accused in S.C.No.46 of 2015 of the Special Court for the trial of NDPS Act cases, Vatakara, the appellant in Crl.Appeal No.281 of 2016 is the second accused therein, and the appellant in Crl.A.No.1274 of 2018 is the third accused. They challenge the conviction and sentence against them under Section 21(c) read with Section 29(1) of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act). They faced trial on the allegation that at about 8.30 a.m. on 13.04.2014 at Naduvannur, the first accused was found possessing 949 grams of brown sugar contained in three packets and carried in a shoulder bag, as part of a criminal design. The offence was detected by the Excise Inspector of the Balussery Excise Range. He arrested the first accused on the spot, and seized the contraband article as per a mahazar after conducting body search of the accused in the presence of the Circle Inspector of Police, Balussery. Though the CRL.A.Nos.281 & 493 of 2016 and Crl.A.No.1274/2018 -: 5 :- contraband article was contained in a bag carried by the accused, the Excise Inspector found it appropriate to conduct his body search also. Though the first accused waived his right to be searched in the presence of a Gazetted Officer or a Magistrate, the Excise Inspector took the accused to the office of the Circle Inspector of Police, Balussery, and in the presence of the Circle Inspector, the Excise Inspector conducted body search of the accused. Ofcourse, no contraband article was seized on body search, but when the Excise Inspector opened the shoulder bag of the first accused in the presence of the Circle Inspector of Police and others, he found some quantity of brown sugar contained in three packets. The total quantity having 949 grams was seized as per a mahazar after taking the required samples, and the first accused was arrested on the spot. The Excise Inspector conducted initial investigation also. On the basis of the statements given by the first accused under Section 67 of the NDPS Act, the second accused was arraigned, and on the basis of the statements given by the second accused under CRL.A.Nos.281 & 493 of 2016 and Crl.A.No.1274/2018 -: 6 :- Section 67 of the NDPS Act, the third accused was arraigned. The Circle Inspector of Excise completed the investigation, and submitted final report in Court. 2. All the three accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against them. The prosecution examined ten witnesses, and proved Exts.P1 to P33 documents in the trial court. The MO1 to MO12 properties were also identified during trial. All the accused denied the incriminating circumstances, when examined under Section 313 Cr.P.C. They did not adduce any evidence in defence. 3. On an appreciation of the evidence, the trial court found the three accused guilty. On conviction, they were sentenced to undergo rigorous imprisonment for 18 years each, and to pay a fine of Rs.2,00,000/(Rupees Two lakhs only) each under Section 21(c) read with Section 29(1) of the NDPS Act. Aggrieved by the judgment of conviction dated 9.3.2016, the accused have come up in appeal. CRL.A.Nos.281 & 493 of 2016 and Crl.A.No.1274/2018 -: 7 :- 4. The accused Nos.2 and 3 are being prosecuted as persons having participation in the commission of offence by the first accused, as part of a conspiracy to export brown sugar to Kuwait. As against the first accused there is direct evidence that the quantity of brown sugar was seized from his possession. As against the second accused also, there is direct evidence that the packet containing brown sugar was brought to the shop of PW3 by the second accused. Of course, the Excise Inspector had recorded the statements of all the three accused under Section 67 of the NDPS Act. Ext.P28 is the statement given by the third accused under Section 67 of the NDPS Act. It is pertinent to note that apart from this Ext.P28 statement, there is nothing against the third accused. No contraband article was seized from his possession, and he was not seen anywhere at any time in the company of the accused Nos.1 and 2. The third accused was arriagned on the basis of the statements given by the second accused under Section 67 of the NDPS Act. There is absolutely nothing in the statements given by the second accused, CRL.A.Nos.281 & 493 of 2016 and Crl.A.No.1274/2018 -: 8 :- or in the Ext.P28 statement given by the third accused to indicate that the third accused had knowledge of the contents of the packet allegedly handed over by him to the second accused, as instructed by somebody else. Practically as against the third accused, there is only the statement given by him under Section 67 of the NDPS Act. 5. Regarding the reliability and acceptability of the statements given by the accused under Section 67 of the NDPS Act for entering a finding of guilty, this Court has settled the position, following the decisions of the Hon'ble Supreme Court on the point. In **Shameer** v. **State of Kerala** [2019 (2) KLD 74], this Court has held that a statement given under Section 67 of the NDPS Act is not meant as a confession statement, and that if at all it contains any confession, the confession part of it must be proved in evidence. In this case, the Excise Inspector who recorded the statement has not stated anything about any confession part in the Ext.P28 statement of the third accused. He has also not given evidence regarding such contents CRL.A.Nos.281 & 493 of 2016 and Crl.A.No.1274/2018 -: 9 :- specifically, amounting to confession. In **Surinder Kumar Khanna** v. **Intelligence Officer, Directorate of Revenue Intelligence** [2018 (3) KLT 1027 (SC)], the Hon'ble Supreme Court has settled that a confession statement given by an accused under Section 67 of the NDPS Act cannot by itself be taken as a substantive piece of evidence against another accused, and that certain additional features corroborating things must be established before a statement under Section 67 of the NDPS Act could be relied upon against a co-accused. In the absence of any circumstance against the third accused, the statements given by the second accused under Section 67 of the NDPS Act against the third accused cannot be relied on by the Court. Even if there is anything in the said statement, it cannot by itself be taken as a substantive piece of evidence against the third accused. In the absence of any material or circumstance against the third accused, to prove his complicity in the offence committed by the others, or to prove his participation, or to prove that the packet containing brown sugar was possessed or CRL.A.Nos.281 & 493 of 2016 and Crl.A.No.1274/2018 -: 10 :- handed over by him with the knowledge of the contents therein, I find that the third accused is entitled for acquittal. 6. Of course as regards the first accused, direct evidence is there. He was arrested by the Excise Inspector when he came to receive the packet from the shop of PW3. The evidence given by PW3 is that on the previous day a packet was brought at his shop by the second accused, and he was reqeuested to hand it over to the son of PW2 who had agreed to take it to Kuwait. As the luggage was of over weight, the son of PW2 could not carry the packet, and so, the packet was brought back to the shop of PW3. It appears that the son of PW2 had no knowledge of what the packet contained. The arrangement made by the accused is that the packet would be entrusted to the son of PW2 without disclosing the contents, and out of friendship or familiarity, the son of PW2 had agreed to take it to Kuwait. As his own baggage was of over weight, he could not carry it. The second accused was clearly identified by PW3 as the person who brought the packet to his shop on the CRL.A.Nos.281 & 493 of 2016 and Crl.A.No.1274/2018 -: 11 :- previous day. Evidence shows that when the first accused came at the shop of PW3 to receive the packet, somebody entertained some doubt, and so the people who gathered there, restrained the first accused, and informed the Excise Officials. It was accordingly the Excise Inspector (PW6) came at the shop of PW3, arrested the first accused, and seized the packets containing brown sugar. 7. The seizure of the packets containing brown sugar from the possession of the first accused stands very well proved by the evidence of PW6 who detected the offence, the evidence of PW7 (the Preventive Officer) who assisted PW6, and also the evidence of the Circle Inspector of Police, Balussery in whose presence the body of the accused was searched by PW6. The Circle Inspector who witnessed the search of the body of the accused is PW9. I find no reason to suspect anything regarding the evidence of PW6, PW7 and PW9, or to disbelieve them. The process of search of the body of the accused is well proved by PW9. Seizure of the packets containing brown sugar is very well proved by CRL.A.Nos.281 & 493 of 2016 and Crl.A.No.1274/2018 -: 12 :- the evidence of PW6, PW7 and PW9, corroborated by that of PW1 and PW3. The first accused came at the shop of PW3 as pre planned, to take back the packets containing brown sugar. On getting information from public, the Excise Inspector recroded the information under Section 42 of the NDPS Act, and proceeded to the spot. He has also proved the compliance of Sections 50 and 57 of the NDPS Act. His evidence proves that the packet containing brown sugar was seized by him from the hands of the first accused in the presence of witnesses including PW1, PW3 and PW9. There is clear and satisfactory evidence as against the first accused. 8. Now let me see whether there is evidence against the second accused, other than the statements given by him under Section 67 of the NDPS Act. He was interrogated by the Excise Inspector on two occasions. Ext.P26 is the first statement given by him, and Ext.P27 is the statement given by him later. In both the statements, there is mention of a packet, and the statements will indicate that when he received the packet, he had knowledge of the contents of the packet CRL.A.Nos.281 & 493 of 2016 and Crl.A.No.1274/2018 -: 13 :- also. It was he who brought the packet to the shop of PW3. The whole arrangement was in fact done by one Sreejith, who was, at that time, in Kuwait. As instructed by him, the packet containing brown sugar was handed over to the second accused, who brought it to the shop of PW3 with request to hand it over to the son of PW2, who had agreed to take it to Kuwait. As the son of PW2 could not carry it, the packet was brought back to the shop of PW3, and this aspect is proved by PW2. On the next day, after the departure of the son of PW2 to Kuwait, the first accused came at the shop of PW3 to take back the packet. It was, at that time, the people suspected something, and as informed by the people, the Excise team came there, and arrested him. Of course, as regards the first accused, things need not be discussed much because there is clear evidence proving seizure of the packet containing brown sugar from his possession. PW3 has very well identified the second accused as the person who brought the packet of brown sugar to his shop on the previous day. I find nothing to disbelieve PW3 on this aspect, CRL.A.Nos.281 & 493 of 2016 and Crl.A.No.1274/2018 -: 14 :- or to reject his evidence. Thus, I find that as against the second accused, what is relied on by the prosecution is not merely the statements given by him under Section 67 of the NDPS Act. Of course, seizure was directly from the possession of the first accused, but the involvement of the second accused, as an abettor or as part of a design to export brown sugar to Kuwait, is very well proved by the evidence of PW3 and others. Thus, I find that as against the second accused also, there is evidence, and that the accused Nos.1 and 2 were rightly found guilty by the trial court. 9. PW6, PW7 and PW9 have very well proved the compliance of Section 50 of the NDPS Act. The body of the accused was searched in the presence of PW9. Of course, the contraband was not seized on body search. Ext.P10 is the report sent by PW6 under Section 57 of the NDPS Act, and Ext.P4 is the report under Section 42 of the NDPS Act. PW6 and also PW10 have very well proved these reports. CRL.A.Nos.281 & 493 of 2016 and Crl.A.No.1274/2018 -: 15 :- 10. The liability of the first accused is direct, that the contraband was seized from his possession. Though the criminal design was to export the quantity of brown sugar to Kuwait, it did not work, as the son of PW2 could not take it due to over weight of his own baggage. The liability of the second accused is not direct. But his constructive liability is proved by PW3 who identified him as the person who actually brought the packet to his shop. Of course, evidence shows that the seizure was in fact made by PW6 outside the shop of PW3 when the first accused came to receive it. However, compliance of Section 42 of the NDPS Act is proved by PW6. The Ext.P10 report under Section 57 of the NDPS Act contains the required details, and receipt of the reports under Sections 42 and 57 of the NDPS Act is proved by PW10. Thus, I find that the Excise Inspector, who detected the offence in this case, had complied with all statutory requirements, including compliance of Sections 42, 50 and 57 of the NDPS Act. I do not find any flaw or infirmity anywhere in the process of detection, or in the process of CRL.A.Nos.281 & 493 of 2016 and Crl.A.No.1274/2018 -: 16 :- investigation. I find that the accused Nos. 1 and 2 were rightly found guilty and convicted by the trial court. 11. Now the question of sentence. The trial court has imposed a jail sentence of rigorous imprisonment for 18 years, and a fine sentence of rupees two lakhs. The accused Nos.1 and 2 are said to be first offenders. They were at their prime age at the time of detection. On a consideration of the various aspects, I feel that the minimum sentence prescribed under the law will be the adequate sentence in this case. In the result, Crl.A. No.1274/2018 brought by the 3[rd] accused is allowed. But, Crl.A. Nos.493/2016 and 281/2016 brought respectively by the accused Nos.1 and 2 will stand dismissed, confirming the conviction against them under Section 21(c) read with Section 29(1) of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act). The 3[rd ] accused (appellant in Crl.A.No. 1274/2018) is found not guilty of the offence, and he is acquitted in appeal under Section 386(b)(i) Cr.P.C. Accordingly, the conviction and sentence against him in CRL.A.Nos.281 & 493 of 2016 and Crl.A.No.1274/2018 -: 17 :- S.C.No.46/2015 of the court below will stand set aside. Though the conviction against the accused Nos.1 and 2 is confirmed, the substantive sentence imposed by the trial court will stand modified and reduced to rigorous imprisonment for ten years each, and the fine sentence will also stand reduced to Rs.1,00,000/- (Rupees One lakh only) each, which is the minimum, but, the default sentence imposed by the trial court is maintained. Communicate a copy of the judgment to the Superintendent of the Jail, where the accused Nos.1 and 2 have been undergoing sentence. The 3[rd ] accused can be released only if his custody is not required in any other case. The accused Nos.1 and 2 will get the benefit of set off as already ordered by the trial court. **Sd/P.UBAID JUDGE** _//TRUE COPY//_ _P.A. TO JUDGE_ rkj/ds/jvt