CRL.M.C. 5109/2022

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 22[ND] DAY OF MAY 2023 / 1ST JYAISHTA, 1945** **CRL.MC NO. 5109 OF 2022** **AGAINST THE ORDER/JUDGMENT IN CC 1265/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, THRISSUR CRIME NO. 690 OF 2021 OF VIYYUR POLICE STATION PETITIONERS/ACCUSED 1 TO 4:** 1 AZEEZ, AGED 59 YEARS UZHUNGARA ILLATH HOUSE, ERNALLUR, KECHERY, KUNNAMKULAM THRISSUR. NOW UNDERGOING SENTENCE AS C. NO. 417 IN HIGH SECURITY PRISON VIYYUR., PIN - 680503 2 BAIJU @ KATTADI, AGED 40 YEARS S/O DEVASSY KUTTI, PALATTY HOUSE, MANJAPRA PO, KALADY, MARYGIRI, VADAKKUM BHAGAM, ERNAKULAM. NOW UNDERGOING SENTENCE AS C. NO. 4875 IN HIGH SECURITY PRISON VIYYUR, PIN - 683581 3 BINU, AGED 33 YEARS S/O THANKACHAN, 33 YEARS, PADINJAREYIL VEEDU, PUTHENKULAM PO, OOMIL MOODU DESOM, KARIMPALLUR, PARIAPPALLY, KALLUVATHUKKAL, KOLLAM. NOW UNDERGOING SENTENCE AS C. NO. 5315 IN HIGH SECURITY PRISON VIYYUR., PIN - 691302 4 RAJESH, AGED 38 YEARS S/O PONNAN, THOOMADAN HOUSE, PUTHUVYPU PO, NJARAKKAL, VAYPU DESOM, ERNAKULAM. NOW UNDERGOING SENTENCE AS C. NO. 1428 IN HIGH SECURITY PRISON VIYYUR., PIN - 682508 BY ADVS. V.T.RAGHUNATH P.A.SHYNA ## **RESPONDENTS/STATE/COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031. Crl.M.C. 5109/2022 2 2 STATION HOUSE OFFICER VIYYUR POLICE STATION,VIYYUR P.O THRISSUR DISTRICT, PIN - 680010 BY ADV PUBLIC PROSECUTOR ## **OTHER PRESENT:** PP MAYA ANTHARJANAM THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14.03.2023, THE COURT ON 22.05.2023 PASSED THE FOLLOWING: Crl.M.C. 5109/2022 3 ## **ORDER** Dated this the 22[nd] day of May, 2023 The petitioners are the accused in C.C. No. 1265 of 2021 on the files of the Judicial First Class Magistrate-I, Thrissur. The case arose from Crime No. 690 of 2021 of Viyyur Police Station, registered for offences under Sections 86(1) and (2) of the Kerala Prisons and Correctional Services (Management) Act, 2010 ('the Prisons Act', for short). Later, the offence under Section 20(b)(ii)(A) of the NDPS Act was also incorporated. The essential facts are as under; All the accused are convicted prisoners, undergoing life imprisonment in the Central Prison, Viyyur. They were let out on parole during the pandemic period. As the petitioners reported back on the same day (27.09.2021) they were admitted to a common cell in the High Security Prison for undergoing quarantine in accordance with the Covid-19 protocol. On 29.09.2021, the Assistant Prison Officer found the petitioners behaving in a suspicious manner and informed about this to the Guard Officer and Joint Superintendent. As Crl.M.C. 5109/2022 4 directed by the Joint Superintendent, the petitioners' cell was searched and a plastic cover found hidden by the side of the closet. On opening the plastic cover, it was found to contain a bottle with a dark liquid like substance, beedies, lighters and a red cotton tag. On being questioned, the petitioners revealed that the liquid in the bottle was Hashish and was smuggled into the cell by the 4[th] respondent by concealing in his rectum. After taking out the articles, the Superintendent informed the Station House Officer, Viyyur about the recovery and requested to take appropriate action. After registering the Crime for offences under Sections 86(1) and (2) of the Kerala Prisons and Correctional Services (Management) Act ('Prison Act' for short), the Station House Officer seized the articles recovered from the petitioners' cell under Annexure 6 seizure mahazar dated 01.10.2021. Much later, Annexure 4 report dated 25.11.2021 was submitted before the jurisdictional Magistrate Court, for incorporating the offence under Section 20(b)(ii)(A) of the NDPS Act. On completion of investigation and filing of Annexure 9 final report, the case was taken on file as C.C. No. 1265 of 2021. This Crl.M.C. is filed seeking to quash Annexure 9 final report and all further proceedings in the Crl.M.C. 5109/2022 5 ## Calendar Case. 2. Adv. V.T. Raghunath appearing for the petitioners submitted that the entire proceedings, including the alleged recovery, registration of the crime and filing of final report, are patently illegal. The Prison Officers, who claimed to have recovered the contraband, are not empowered officers. The Sub Inspector of Police, who later seized the contraband did not follow the mandatory procedure prescribed in Section 42 of the NDPS Act. Further, the seizure itself was effected after two days of the alleged recovery, that too from the possession of the Superintendent. In support of the contention that violation of the procedure prescribed in Section 42 will vitiate the entire proceedings, reliance is placed on the decisions in **Mohinder Kumar v. State, Panaji, Goa** [(1998) 8 SCC 655] and **Rejith and Ors. v. State of Kerala** (2020 Crl.LJ 4652). Referring to the discrepancies in the statement of witness with respect to the exact spot where the contraband and other articles were hidden, it is contended that the offences under the Prisons Act are also liable to be quashed. It is pointed out that, even though the petitioners have already undergone the maximum period of 12 months imprisonment prescribed for Crl.M.C. 5109/2022 6 offences under the Prisons Act, they are seeking to get those offences quashed, as their right to obtain leave and parole will otherwise be adversely affected. 3. Adv. Maya Antharjanam, learned Public Prosecutor submitted that the mandate of Section 42 would not apply in the instant case, since the seizure was effected by chance. Reference is made to Sections 28(6)(d), 30(2), 86 and 87 of the Prisons Act and Rule 243 of the Kerala Prisons and Correctional Services (Management) Rules, 2014 to contend that, officers in the prison service are empowered officers under the NDPS Act. 4. The provisions of the Prisons Act and Rules referred by the learned Public Prosecutor will not empower Prison Officers to effect arrest and seizure under the NDPS Act. For that, a general or special order issued by the State or Central Government is necessary. Not being officers empowered under the NDPS Act, the Prison Officers who had effected recovery should have informed an empowered officer, the moment they realized that the articles contained a narcotic drug or psychotropic substance. A reading of Annexure 1 report reveals that the accused themselves had stated that the bottle Crl.M.C. 5109/2022 7 contained Hashish. Hence, the contraband could have been seized from the spot only by an empowered officer in accordance with the procedure prescribed under the NDPS Act. Instead, the contraband was taken from the spot, kept in the custody of the Prison Officers and handed over to the empowered officer after two days. It is also pertinent to note that in Annexure 1 report, there is no mention about the manner in which the contraband was taken from the spot and stored. As per Annexure 6 seizure mahazar, the contraband and other articles were handed over to the investigating officer by the Superintendent of the High Security Prison after two days. Annexure 3 FIR was initially registered for offences under Sections 86(1) and (2) of the Prisons Act and report incorporating the offence under the NDPS Act was submitted after two months. This probably could be the reason for the investigating officer effecting seizure of the contraband without following the procedure prescribed under Section 42 of the NDPS Act. Even if so, ignorance of the investigating officer cannot be an excuse for overlooking the mandatory procedure. As per Section 42, an empowered officer receiving prior information regarding the concealment of any narcotic drug or Crl.M.C. 5109/2022 8 psychotropic substance can seize such drug or substance and arrest the suspected person, after obtaining search warrant. The second proviso to Section 42(1) provides for dispensing with requirement of obtaining search warrant or authorisation, if the officer is of the opinion that the delay would afford an opportunity for concealment of evidence or facility for the offender to escape. The seizure in instant case having been effected on 01.10.2021, based on information received from the Superintendent of Prison on 29.09.2021, the second proviso cannot be pressed into service. Moreover, as per Section 42(2) the requirement of the officer taking down the information in writing and sending a copy to his immediate superior within 72 hours is also not complied with. 6. Among the precedents cited, **Mohinder Kumar** (supra) is a case in which an Assistant Sub Inspector and party had entered the house of the accused, on being alerted by their suspicious behaviour. Upon searching the house, the police party found polythene packets containing charas like substance and seized the article after taking samples. The search and seizure was challenged, alleging violation of Sections 42(1) and 50 of the NDPS Act. After analysing the Crl.M.C. 5109/2022 9 relevant provisions, the Apex Court held that if a police officer, having no prior information, makes a search and effects arrest of persons and, stumbles on a chance recovery of narcotic drug or psychotropic substance during such search, then, if he is not an officer empowered under the Act to effect search and seizure, he should inform the empowered officer and, in case, the officer himself is an empowered officer, then, from the stage of recovery onwards, he must carry out the investigation in accordance with the provisions of the NDPS Act. As the Assistant Sub Inspector in **Mohinder Kumar** (supra), was not an empowered officer, but had reason to believe that the accused were in possession of narcotic drugs, it was held that the officer was under an obligation to proceed further in accordance with the provisions of the Act, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs. Applying the dictum, the recovery/seizure of the contraband by the Prison Officers is patently illegal. As discussed earlier, the seizure affected by the empowered officer cannot also be sustained, the same being in violation of Section 42 of the NDPS Act. 7. As per Section 86 of the Prisons Act, any person, who, Crl.M.C. 5109/2022 10 in contravention of any of the provisions of the Act, brings or removes or attempts by any means to bring or remove into or from any prison, any prohibited article, is liable to imprisonment for a term not exceeding 12 months or fine not exceeding Rs.10,000/-, or both. Among the offences enumerated in Section 81, Sub section (21) deals with receipt of possession of prohibited articles. The definition of 'prohibited article' in Section 2(xxxv) takes in any article, the bringing or removing of which, in and out of prison, is prohibited either under the Act or under the NDPS Act and the Rules made thereunder. Although counsel for the petitioners strenuously contended that the offences under the Prisons Act are not made out in view of the inconsistency in the statements of witnesses regarding the exact spot from where the articles were recovered, that is an aspect to be decided on appreciation of evidence and cannot form the basis for quashing the proceedings. In the result, Crl.M.C. is allowed in part. The final report in Crime No. 690 of 2021 and further proceedings in C.C. No. 1265 of 2021 of the Judicial First Class Magistrate Court-I, Thrissur, for the offence under Section 20(b)(ii)(A) of the NDPS Crl.M.C. 5109/2022 11 Act, is quashed. The prayer for quashing further proceedings for offences punishable under Sections 86(1) and (2) of the Prisons Act, is rejected. Sd/- **V.G.ARUN JUDGE** sb Crl.M.C. 5109/2022 12 ## **APPENDIX OF CRL.MC 5109/2022** ## PETITIONER ANNEXURES |Annexure|1|TRUE COPY OF THE REPORT OF THE APO TO THE| |---|---|---| |||SUPERINTENDENT DT. 29.09.2021| |Annexure|2|TRUE COPY OF THE REPORT DATED 29.09.2021 BY| |||THE JOINT SUPERINTENDENT ON BEHALF OF THE| |||SUPERINTENDENT WAS GIVEN TO THE SHO VIYYUR.| |Annexure|3|TRUE COPY OF THE FIR DATED 01.10.2021 IN| |||CRIME. NO 690/2021, VIYYUR POLICE STATION| |||THRISSUR DIST.| |Annexure|4|TRUE COPY OF THE REPORT DATED. 25.11.2021| |||ADDING NDPS OFFENCE.| |Annexure|5|TRUE COPY OF THE SCENE MAHAZAR HAS BEEN| |||PREPARED ON 01.10.2021.| |Annexure|6|TRUE COPY OF THE SEIZURE MAHAZAR DT.| |||01.10.2021.| |Annexure|7|TRUE COPIES OF THE 161 STATEMENTS OF CW 1 TO| |||CW 8.| |Annexure|8|TRUE COPY OF THE INFORMATION FURNISHED UNDER| |||THE RIGHT TO INFORMATION ACT.| |Annexure|9|CERTIFIED COPY OF THE FINAL REPORT CRIME. NO| |||690/2021, VIYYUR POLICE STATION, THRISSUR| |||DISTRICT.|