George C. Vembillil v. Intelligence Officer, Narcotic Control Bureau

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE GOPINATH P. TUESDAY, THE 7[TH] DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943 CRL.A NO. 1314 OF 2004** **AGAINST THE JUDGMENT IN SC 271/2001 OF II ADDITIONAL SESSIONS JUDGE,ERNAKULAM,** ## **APPELLANT/ACCUSED:** GEORGE C.VEMBILLIL, S/O V.V.CHERIAN,VEMBILLIL HOUSE, KODUVELI P.O., IDUKKI DISTRICT. BY ADVS. SRI.T.D.ROBIN SRI.K.S.ANIL SRI.R.ANUP SRI.V.DIPU SRI.V.K.MOHANAN ## **RESPONDENT/COMPLAINANT:** INTELLIGENCE OFFICER NARCOTIC CONTROL BUREAU, REGIONAL INTELLIGENCE, UNIT, THIRUVANANTHAPURAM. BY ADVS. SHRI.K.R.RAJAGOPALAN NAIR, SC, NARCOTICS CONTROL BUREAU - NCB SHRI.M.V.S.NAMPOOTHIRY THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 07.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A.No.1314/2004 2 ## **JUDGMENT** This appeal has been filed challenging the conviction and sentence imposed on the appellant/accused in S.C.No.271/2001 on the file of the II Additional Sessions Judge, Ernakulam in a prosecution for offences punishable under Section 20(b) (ii) r/w.Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'NDPS Act'). 2. The gist of the prosecution case is that the accused was found in possession of 0.921 Kgs of hashish oil, a narcotic drug, in a polythene cover while he was in a room at a lodge known as _'Thottam Lodge'_ situated near the KSRTC bus stand, Muvattupuzha. Following an investigation, a complaint was filed before the Principal Sessions Court, Ernakulam. The Principal Sessions Judge took cognizance of the case and the same was made over to the II Additional Sessions Judge for trial and disposal. A charge was framed against the appellant/accused under Section 8(c) punishable under Section 20(b) (ii) r/w. Section 29 of the NDPS Act. On the appellant/accused pleading not guilty, the case was posted for trial. The prosecution examined Pws 1 to 7, marked Exts.P1 to P17 and identified material objects 1 to 8. On the closure of prosecution evidence, the appellant/accused was questioned under Section 313 of the Cr.P.C. and he denied all incriminating circumstances put to him. On the Crl.A.No.1314/2004 3 side of the defence, DW1 was examined and one document, namely Ext.D1 was marked. On an appreciation of the entire evidence, the trial Court convicted the appellant/accused and sentenced him to undergo rigorous imprisonment for four years and to pay a fine of Rs.25,000/- and in default of payment fine, to undergo simple imprisonment for one year under Section 20(b)(ii)B of the NDPS Act. Set off was allowed. 3. The main contentions raised on behalf of the appellant/accused before this Court are the following:- i) The entire prosecution case read as a whole creates a serious doubt regarding the genuineness of the same; ii) The statements recorded by the officers of the Narcotic Control Bureau (NCB) could not have been relied upon in the light of the fact that the view taken by this Court in _**Nagarajan v. Intelligence Officer; 2004 (2) KLT SN 48**_ that the officials of the NCB are not Police Officers, has been reversed by the Supreme Court in _**Tofan Singh v. State of Tamil Nadu; 2020 (6) KHC**_ _**111**_ and therefore, the statements are hit by the provisions of Section 25 of the Indian Evidence Act; iii) There is a violation of Section 42 of the NDPS Act in as much as the said provision requires the information received by an officer to be taken down in writing before action is taken in terms of Section Crl.A.No.1314/2004 4 42. It is submitted that the evidence of PW6 shows that, while the information received by him was recorded into writing, only a copy of the same has been produced before the Court. Reference is made to the definition of _'document'_ in Section 3 of the Evidence and also to Section 91 of that Act to contend that if a copy alone has been produced and marked in Court, its contents cannot be accepted in evidence, given the provisions contained in Section 91 of the Evidence Act; iv) The provisions of Section 50 of the NDPS Act had been violated in as much as the accused was not specifically informed of his right under Section 50 to be examined or searched in the presence of a Gazetted Officer or a Magistrate; v) The trial Court discarded the evidence of DW1 and the contents of Ext.D1 document which, according to the learned counsel, shows that the case put forth by the appellant/accused during crossexamination that it was actually one Arunachalam who was involved in the matter and that the said Arunachalam had been severely beaten up by officers of the NCB and had been admitted to the Morning Star Hospital at Adimaly and he was made a scapegoat as he had intervened to save Arunachalam, is completely proved; and Crl.A.No.1314/2004 5 vi) The statement that the contraband article was in a bag on the cot in a room occupied by the appellant/accused and that he had handed it over on mere asking is quite unbelievable. 4. The learned counsel appearing for the respondent would contend that the evidence tendered by the official witnesses namely PWs 6 and 7 is completely consistent with the evidence tendered by PW 1 (the manager of the _'Thottam Lodge')_ and PW 5 ( husband of the owner of _'Thottam Lodge')_ and that the evidence of PW4 (the Chemical Examiner) clearly suggests that the contraband article seized from the appellant/accused was indeed Hashish oil. He also contends that the seizure of contraband from the custody or possession of the appellant/accused is clearly not disputed. He submits that the provisions of Sections 42 and Section 50 have not been violated in as much as Ext.P6 which is the information recorded by PW6 in writing is the original and not a copy as suggested by the learned counsel for the appellant/accused. He would also submit that the provisions of Section 50 are not attracted since it is settled law that the provisions of Section 50 are attracted only in the case of a body search and not when the contraband is recovered from the room occupied by the appellant/accused and relies on the judgment of the Supreme Court in _**State of H.P. v. Pawan Kumar; AIR 2005 SC 2265**_ in this regard. It is also his submission with reference to the presumption under Section 54 of the NDPS Act Crl.A.No.1314/2004 6 that, where the possession of illicit article has been proved beyond doubt, the presumption under Section 54 kicks in and the appellant/accused has not let in any credible evidence to rebut that statutory presumption. He has also referred to the presumption of culpable mental state under Section 35 of the NDPS Act. He also contends that, in the facts of the present case, the question of completely discarding the statements made under Section 67 of the NDPS Act is not called for in the light of the law laid down in _**Tofan Singh (supra)**_ where, in paragraph 310, the Supreme Court held as follows:- “ _310. 153.Whether the officer concerned is duly empowered and/ or authorised to make an enquiry/ investigation, whether any statement or document has improperly been procured, etc., are factors which would have to be examined by the Court on a case to case basis. Needless to mention that, having regard to all relevant facts and circumstances, the Court may not base conviction solely on a statement made in an inquiry which is confessional, in the absence of other materials with which the statement can be linked. It is for the Special Court to weigh the statement and assess its evidentiary value, having regard to all relevant factors. All statements and documents tendered in evidence have to be proved at the trial in accordance with law.”_ 5. I have been taken through the evidence of PW1, the Manager of the Thottam Lodge, Muvattupuzha, the evidence of PW5, the husband of the owner of the lodge and the evidence tendered by the official witnesses namely, PWs 6 and 7. The evidence of PW6, who was the detecting officer in this case is that he received information from an informer that a fair well-built person will be checking himself into ' _Thottam Lodge_ ' on 9.3.2001 and that he will be in possession of a certain quantity of Hashish oil meant for sale. PW6 immediately Crl.A.No.1314/2004 7 recorded the information in writing and reported the matter to the Superintendent of NCB, Regional Intelligence Bureau, Thiruvananthapuram. After obtaining permission from the Superintendent, for the action proposed, PW6 together with PW7 and a driver located the _'Thottam Lodge’_ in the morning on 9.3.2001. When they found a person matching the description given by the informant entering the lodge, they also went to the lodge and found that the person concerned had checked himself into Room No.102. It is the evidence of PW6 that he had knocked on the door which was opened by the appellant/accused, he had identified himself as an officer of the NCB that he had asked the appellant/accused whether he wishes to be searched in the presence of a Gazetted Officer or a Magistrate and that the appellant/accused had informed him that he does not wish to exercise his right under Section 50 of the NDPS Act and that he had himself handed over the packet containing a dark greenish greasy substance from a polythene cover which contained a _'churidar'._ The cross-examination mainly consists of suggestions made at the instance of the appellant/accused, who suggested the presence of another person - Arunachalam and the recovery of the contraband from Arunachalam etc. However, it must be noted that the cross-examination failed to elicit any answer from PW6 which would tend to indicate that his version was incorrect in any manner. The evidence of PW7 also substantiates the evidence tendered by PW6 in every material particular. Though the evidence of PW1, the lodge Manager, Crl.A.No.1314/2004 8 would suggest that the presence of another person wearing a 'mundu', the identity of this person could not be established. Though the evidence of DW1 would suggest that a person named Arunachalam was indeed admitted and treated at the Morning Star Hospital, Adimaly, there is nothing to connect the said person with the incident or to establish his presence at the ' _Thottam Lodge'_ at the time when the appellant/accused was apprehended. The said Arunachalam was also not examined by the defence despite the appellant/accused asserting that the said Arunchalam was his acquaintance. The evidence tendered by PW5 also does not, in any manner, cast any doubt on the prosecution case. Therefore, I am of the view that even discarding the statements under Section 67, there is sufficient evidence, in this case, to establish that the appellant/accused was apprehended while in possession of Hashish oil, the identity of which is proved by Ext.P4 chemical examination certificate. 6. The contention raised by the learned counsel for the appellant/accused that there is a violation of Section 42 in as much as the original of the information reduced into writing was not produced or marked in Court cannot sustain in the light of the fact that Ext.P6 is seen to be the original of the document through which the information received by PW6 was reduced into writing. The question of violation of right conferred on the appellant/accused under Section 50 of the NDPS Act also does not arise for Crl.A.No.1314/2004 9 consideration in this case as it is clear that the contraband was recovered not from the body of the appellant/accused but from the room which he occupied at the _'Thottam Lodge'_ . In _**Pawan Kumar**_ (supra), the Supreme Court has taken the view that, where the search is of a bag, briefcase etc., being carried by the person, the provisions of Section 50 are not attracted. 7. The contention that the statements recorded under Section 67 will not be admissible in evidence need not be gone into for the reason that even discarding those statements, I have concluded that there is sufficient evidence against the appellant/accused. However, I must note that the paragraph of the judgment in _**Tofan Singh (supra)**_ upon which reliance was placed by the learned counsel for the respondent is the view taken in the dissenting judgment of Indira Banerjee (J) and does not represent the majority view. 8. Further as rightly pointed out by the learned counsel for the respondent, the possession of contraband having been clearly established, the statutory presumption under Section 54 of the NDPS Act will operate (see the judgment of the Supreme Court in _**Jeet Ram v. Narcotic Control Board, Chandigarh; AIR 2020 SC 4313).**_ 9. In the light of the aforesaid, I have no hesitation to uphold the conviction of the appellant/accused for the offence punishable under Section 20(b)(ii) of the NDPS Act. 10. At this stage, the learned counsel for the appellant/accused Crl.A.No.1314/2004 10 contends that the sentence imposed on the appellant/accused is very harsh. It is submitted that the appellant/accused is now aged 55 years and the sentence of 4 years rigorous imprisonment will be too harsh. The learned counsel appearing for the respondent stoutly opposed any indulgence on the question of the sentence stating that this is a case where an intermediate quantity of Hashish oil was found from the possession of the appellant/accused. 11. Taking into consideration the totality of the facts and circumstances of the case and considering the fact that the appellant/accused is now aged 55 years, I deem it appropriate to reduce the sentence of imprisonment to rigorous imprisonment for a period of 30 months (2 ½ years) in the place of 4 years with set off permissible in accordance with the law. There will be no modification of the sentence of fine of Rs.25,000/-. In default of payment of the fine of Rs.25,000/-, the appellant/accused shall undergo simple imprisonment for a further period of six months. The appeal is therefore allowed in part, upholding the conviction but modifying the sentence, in the manner indicated above. sd/- acd **GOPINATH P. JUDGE**