Finoos s/o Moidu and Lisy v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH FRIDAY, THE 23[RD] DAY OF SEPTEMBER 2022 / 1ST ASWINA, 1944** **CRL.A NO. 122 OF 2014** **AGAINST THE JUDGMENT IN SC 8/2010 OF COURT OF SPECIAL JUDGE(NDPS ACT CASES), VATAKARA** **APPELLANT/SECOND ACCUSED:** **FINOOS S/O MOIDU, KAITHAKUNNEL HOUSE, MAKKUTTI, NENMENI AMSOM, SULTHAN BATHERY, WAYANAD DISTRICT.** **BY ADVS. SRI.T.P.SANTHOSH KUMAR SRI.K.K.BALAKRISHNAN KODIYURA SRI.K.K.DHEERENDRAKRISHNAN SRI.S.RAJEEV SRI.V.VINAY** ## **RESPONDENT/COMPLAINANAT:** **STATE OF KERALA REPRESENTED BY CIRCLE INSPECTOR OF POLICE, SULTHAN BATHERY, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADVS. SRI SANGEETHA RAJ-PP** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 23.09.2022, ALONG WITH CRL.A.856/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A NO. 122 & 856 OF 2014** ..2.. # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **FRIDAY, THE 23[RD] DAY OF SEPTEMBER 2022 / 1ST ASWINA, 1944** **CRL.A NO. 856 OF 2014** **AGAINST THE JUDGMENT IN SC 8/2010 OF COURT OF SPECIAL JUDGE(NDPS ACT CASES), VATAKARA DATED 12.12.2013** **APPELLANT/1ST ACCUSED:** **LISY, AGED 43 YEARS W/O.SASI, PALLOLIKKAL HOUSE, KOTTAYIL, CHULLIYODE, NENMENI AMSOM, WAYANAD.** **BY ADVS. MANJU ANTONEY R.ANAS MUHAMMED SHAMNAD P.MAMATHA R.AVINASH** ## **RESPONDENT/COMPLAINANT:** - **1 THE INSPECTOR OF POLICE , SULTHAN BATHERY POLICE STATION, WAYANAD DISTRICT.** - **2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADVS. SRI SANGEETHA RAJ-PP** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 23.09.2022, ALONG WITH CRL.A.122/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **CRL.A NO. 122 & 856 OF 2014** **==> picture [19 x 8] intentionally omitted <==** ## **J U D G M E N T** These Crl. Appeals have been preferred challenging the conviction and sentence in S.C.No.8 of 2010 on the file of the Special Judge (NDPS Act Cases) Vatakara (for short 'the court below'). 2. Three accused persons faced trial for the offences punishable under Section 22(c) r/w Sections 29 and 27A of Narcotic Drugs and Psychotropic Substances Act (for short, 'the NDPS Act'). 3. The prosecution case in short is that on 31/12/2009 at about 09.30 p.m., the accused No.1 was found in possession of 90 ampoules of (2 ml each) of Phenergan, 650 ampoules of Buprenorphine Injection IP Lupijesic SLS 948 (2 ml each) and 140 ampoules of Diazepam injection IP (2 ml each) an anti histamain tranquiliser while travelling in the autorickshaw bearing Registration No.KL-10/T-760A driven by the **CRL.A NO. 122 & 856 OF 2014** ..4.. accused No.2. The prosecution further alleged that the accused Nos.1 and 2 in consequence of criminal conspiracy purchased contraband article with financial assistance of the accused No.3 from Mysore. 4. All the accused appeared at the court below. The court below after hearing both sides framed charge against them under Section 22(c) r/w Sections 29 and 27 A of NDPS Act. The charge was read over and explained to the accused who pleaded not guilty. On the side of the prosecution, PWs.1 to 8 were examined and Exts.P1 to P22 were marked. MOs.1 to 8 were identified. On the side of the defence, Exts.D1 and D2 were marked. After trial, the court below found the accused Nos.1 and 2 guilty for the offence punishable under Section 22(c) r/w Section 29 of NDPS Act and they were convicted for the said offences. The accused No.3 was found not guilty and he was acquitted. The accused Nos.1 and 2 were sentenced to undergo rigorous imprisonment for 15 years each and **CRL.A NO. 122 & 856 OF 2014** **==> picture [18 x 8] intentionally omitted <==** to pay a fine of Rs.2,00,000/- each in default, to suffer rigorous imprisonment for two more years. Aggrieved by the said conviction and sentence, the accused No.1 preferred Crl.Appeal No.856 of 2014 and the accused No.2 preferred Crl.Appeal No.122 of 2014. 5. I have heard Smt.Manju, the learned counsel for accused No.1, Sri.S.Rajeev, the learned counsel for the accused No.2 and Sri.Sangeetha Raj, the learned Public Prosecutor. 6. PW1 is the detecting officer. PW6 is the ASI who accompanied PW1 and was present at the time of detection. Evidence of PWs1 and 6 were pressed into service by the prosecution to prove seizure of the contraband articles as well as the arrest of accused Nos.1 and 2. Their evidence would prove that while they were conducting patrolling duty, they intercepted the autorickshaw driven by the accused No.2 and on inspection of the big shopper bag carried by the accused No.1 who was travelling in the said ## **CRL.A NO. 122 & 856 OF 2014** ..6.. autorickshaw, they found contraband articles in it and seized the same. There is sufficient evidence on record to prove the seizure of the contraband articles from the possession of accused No.1 and also the arrest of both the accused at the spot. The accused No.2 is only the driver of the autorickshaw. There is absolutely no independent evidence to connect the accused No.2 with the contraband articles seized from the possession of the accused No.1. For the simple reason that a passenger travelling in an autorickshaw was found to be carrying contraband article, it cannot be presumed that the driver of the autorickshaw was having any knowledge of the possession of the contraband article by the passenger. Autorickshaw is a public carrier. Apart from the alleged confession statement of the accused No.1, there is nothing to prove that the contraband articles were purchased together by the accused Nos.1 and 2 for the accused No.3. Thus, at the outset, I **CRL.A NO. 122 & 856 OF 2014** ..7.. must conclude that there is absolutely no evidence to prove the complicity of the accused No.2 in the alleged offence. 7. The learned counsel for the accused No.1 vehemently argued that there is considerable delay in producing the contraband articles at the court which the prosecution failed to explain. The evidence on record would show that the detection was on 31/12/2009 at night. The FIR was registered on 1/1/2010. However, admittedly the seized contraband articles reached the court only on 4/1/2010. Thus, there is a delay of 4 days. It is settled that the unexplained delay in producing the contraband articles at the court is fatal to the prosecution case. The Apex Court in _**State of U.P v. Hansraj @ Hansu**_ [(2018) 18 SCC 355] has held that when there is a delay in producing the samples of contraband substance in court and when evidence is that they were kept in police station, the prosecution has to ## **CRL.A NO. 122 & 856 OF 2014** **==> picture [20 x 9] intentionally omitted <==** adduce evidence to show as to how and in what condition the same were preserved at the police station. A Single Bench of this Court in _**Faijas v. State of Kerala**_ [2020 KHC 5259] following the judgment of the Apex Court in _**Hansraj**_ (supra) held that unexplained delay in producing seized articles at the court is fatal to the prosecution case. 8. Coming to the facts of the case, PW1 deposed that he handed over the seized contraband articles to the writer in the morning of 01/01/2010 itself. He further deposed that after he entrusted the same to the writer, it was not in his custody. But, the writer was not examined. Thus, there is no satisfactory evidence to show in whose custody the contraband articles were kept for the period from 01/01/2010 to 04/01/2010. The prosecution miserably failed to explain the same. PW1 has also deposed that even though he entrusted the seized contraband articles to the writer, he did not obtain any receipt **CRL.A NO. 122 & 856 OF 2014** **==> picture [19 x 8] intentionally omitted <==** from him. Thus, there is no satisfactory evidence as to where and in what condition the contraband articles seized were kept till 04/01/2010. There is yet another aspect. Initially the contraband articles were produced at the Magistrate Court and later it was produced at the court below. When the packets containing the contraband articles were opened, it was found that there was shortage of 11 ampoules. The total ampoules seized was 640 numbers, but on verification it was found that there was only 629 ampoules. An explanation was sought from PW1 who offered the explanation that it was simply a counting mistake. The explanation does not appear to be satisfactory. This difference assumes significance in view of the fact that there is no evidence as to where the seized contraband articles were kept from 01/01/2010 to 04/01/2010. When there is delay in producing the seized contraband articles and the sample drawn from it at the court, the prosecution **CRL.A NO. 122 & 856 OF 2014** **==> picture [24 x 7] intentionally omitted <==** has not only to explain the delay satisfactorily, but also to prove where, how and in what condition the same were preserved during the interregnum period. In the absence of satisfactory evidence to show that the seized contraband articles were in safe custody till it was produced at the court, it cannot be concluded beyond reasonable doubt that the very same sample taken at the spot of occurrence had reached the chemical examiner for analysis in a tamper proof condition. This vital aspect was not taken into consideration by the court below while appreciating the prosecution evidence. For these reasons I hold that the conviction and sentence passed by the court below cannot be sustained. In the result, both Crl.Appeals are allowed. The conviction and sentence passed by the court below vide the impugned judgment are set aside. The appellants are found not guilty of the offences charged against them and accordingly they are **CRL.A NO. 122 & 856 OF 2014** **==> picture [22 x 7] intentionally omitted <==** acquitted. They shall be set at liberty forthwith if they are not otherwise required. **==> picture [71 x 50] intentionally omitted <==** Sd/- **DR.KAUSER EDAPPAGATH, JUDGE** AS **CRL.A NO. 122 & 856 OF 2014** ..12.. ## **APPENDIX** ## **PETITIONERS' ANNEXURES:** **ANNEXURE A1 COPY OF THE MEDICAL CERTIFICATE DATED 23.05.2019 ISSUED BY MEDICAL PRACTITIONER OF CHC WAYANAD.**