Haridasan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 11[TH] DAY OF SEPTEMBER 2023 / 20TH BHADRA, 1945 CRL.A NO. 488 OF 2008** **JUDGMENT IN SC 13/2007 OF SPECIAL COURT (NDPS ACT** ## **CASES), VADAKARA** ## **APPELLANT/S:** HARIDASAN, S/O.GOVINDANKUTTY, AGED 46 YEARS, RESIDING AT PADINJARE VEETTIL, P.O.BALUSSERY. BY ADVS. SRI.C.VALSALAN SRI.K.RAKESH ROSHAN SMT.THUSHARA.V ## **RESPONDENT/S:** STATE OF KERALA (CIRCLE INSPECTOR OF POLICE, BALUSSERY IN CR.NO.178 OF 2006 OF BALUSSERY POLICE STATION), REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV PUBLIC PROSECUTOR ## **OTHER PRESENT:** SR.PP.RENJITH GEORGE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HAERD ON 14.07.2023, THE COURT ON 11.09.2023 DELIVERED THE FOLLOWING: Crl.Appeal No.488 of 2008 -2- ## **JUDGMENT** Dated this the 11[th] day of September, 2023 This appeal is filed against the judgment in S.C. No. 13 of 2007 of the Special Court (NDPS Act Cases), Vadakara, by which the appellant stands convicted for the offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the NDPS Act' for short) and sentenced to undergo rigorous imprisonment for three years and pay fine of Rs.25,000/-, with default sentence of rigorous imprisonment for six months. 2. The prosecution case, which resulted in the appellant's conviction, is as follows; On 24.04.2006, at about 12.20 p.m, PW1, the Sub Inspector of Balussery Police Station, got Crl.Appeal No.488 of 2008 -3- information from the Constable attached to the Dy.S.P's Narcotic Special Squad that a person wearing a brown shirt was suspected to be indulging in the sale of Ganja at a place called Vaikundam in Balussery Town and was kept under surveillance. Thereupon, PW1 recorded the information in the General Diary, informed the Circle Inspector as mandated under Section 42 of the NDPS Act, and rushed to the spot. The appellant attempted to flee on seeing the police party, but was stopped by PW1. Thereafter, PW1 told the appellant that he intended to search the appellant’s body and informed about his right to be searched in the presence of a Magistrate or Gazetted Officer. The appellant said he had no objection in PW1 searching his body and gave Ext.P2 consent letter. Even then, at the request of PW1, the Circle Inspector (PW9) came to the spot by 12.30 p.m. and body search of the appellant was conducted in the presence of PW9. Crl.Appeal No.488 of 2008 -4- During search, 13 paper rolls containing semidried Ganja was found concealed in the folds of the appellant's dhoti. After recovery, the Ganja along with paper rolls was weighed and found to be 30 grams and the Ganja by itself, weighed 25 grams. After taking 25 grams as sample, Ext.P5 seizure mahazar was prepared and the appellant arrested. Thereafter, Ext.P6 FIR was registered for the offence punishable under Section 20(b) (ii) (A) of the NDPS Act. 3. During questioning after arrest, the appellant revealed that a large quantity of Ganja was stashed away in his house. Immediately, PW1 proceeded to the appellant’s house and recovered 1.955 kgs of Ganja kept concealed in a cavity in the wall of the dining hall of appellant’s house. As there was no time for obtaining a search warrant, PW1 prepared Ext.P7 search memo and forwarded it to the jurisdictional court. After completing the formalities. The offence was Crl.Appeal No.488 of 2008 -5- altered from Section 20(b)(ii)(A) to Section 20(b)(ii)(B) and the samples produced in court under Ext.P11 property list. On forwarding the samples to the Chemical Analyst under Ext.P15 forwarding note, Ext.P14 report obtained, finding the sample to be Ganja. 4. Before the trial court, the prosecution examined PWs 1 to 9 and marked Exts.P1 to P15 documents as well as MO1 to MO7 material objects. After appreciation of evidence and consideration of the contentions, the trial court found the prosecution to have succeeded in proving illegal possession of Ganja by the appellant and the impugned judgment was rendered. 5. Heard Adv.Rakesh Roshan K. for the appellant and Senior Public Prosecutor Renjith George for the State. 6. Learned Counsel for the appellant contended that his client was falsely implicated and the search and seizure was done without Crl.Appeal No.488 of 2008 -6- following the prescribed procedure. The prosecution version of the appellant having consented for PW1 himself conducting the search on being informed about his right is alleged to be a concocted story. According to the Counsel, it is highly improbable for PW1 to have requested PW9 to come over and be present at the time of search, despite the appellant having given written consent for PW1 conducting the search. Inconsistencies in the testimony of prosecution witnesses with respect to the distance from the police station to the spot where the appellant was standing, the manner in which the appellant was kept under surveillance, the circumstances under which the independent witnesses happened to be present at the scene, the manner in which those persons were identified as reliable witnesses, failure to carry a weighing scale in the kit etc. are pointed out to contend that the prosecution case is liable to be disbelieved. Crl.Appeal No.488 of 2008 -7- 7. The recovery of 1.955 kgs. of Ganja from the appellant's house is assailed on the ground that, since the recovery is claimed to be on the basis of appellant's confession, the prohibition contained in Section 25 of the Indian Evidence Act would come into play. It is contended that, seizure mahazar was not prepared in relation to the second recovery and no report under Section 42 was sent to the superior officer. It is argued that no evidence was adduced to prove that the house from which the Ganja was seized belonged to the appellant. According to the learned Counsel, the inconsistencies in the testimony of the prosecution witnesses and the infirmities in the investigation, even though pointed out, are not considered or even adverted to in the impugned judgment. 8. Learned Public Prosecutor submitted that the seizure of 13 packets of Ganja was effected in strict compliance of Section 50 of the NDPS Crl.Appeal No.488 of 2008 **==> picture [16 x 8] intentionally omitted <==** Act. Apart from PW9 and the other official witnesses, the search and seizure was witnessed by two independent witnesses. Moreover, the appellant having waived his right to be searched in the presence of a Gazetted Officer or Magistrate, the challenge on the premise that PW9, in whose presence the search was conducted, is the detecting officer's immediate superior, can only be repelled. 9. As regards the recovery from the appellant's house, learned Public Prosecutor submitted that the bar under Section 25 of the Evidence Act has no application since the recovery is not under Section 27 of the Evidence Act, but pursuant to a search. As the search was conducted after informing the court and there being other evidence also regarding recovery of the contraband from the appellant’s house, the trial court had rightly accepted the evidence and convicted the appellant for the offence under Crl.Appeal No.488 of 2008 -9- Section 20(b)(ii)(B). 10. The prosecution evidence shows that two distinct and separate searches were conducted by PW1. The first, based on the reliable information received to the effect that the accused is engaged in sale of Ganja in a public place and the second, based on the information/confession of the accused, while in custody, that he had concealed Ganja in his house. 11. The legality of the first search and seizure is assailed on the ground that the mandate of Section 50 is not complied with and the inconsistencies in the testimonies of the prosecution witnesses. Having given Ext.P2 consent statement that he had no objection in PW1 conducting the search without seeking the presence of a Magistrate or a Gazetted Officer, the appellant cannot challenge the search and seizure on the ground that PW9, the Circle Inspector of Police, who was present at the time Crl.Appeal No.488 of 2008 -10- of search is the detecting officer's immediate superior. The minor inconsistencies in the deposition of the prosecution witnesses and the fact that the independent witnesses were known to the detecting officer, are also not sufficient to discard the prosecution evidence with respect to the first search and seizure. 12. Having held as above, I find the challenge against the subsequent search and seizure from a place, alleged to be the residential house of the appellant, to be well founded. Even according to the prosecution, the search and seizure were conducted based on the information elicited from the appellant during questioning after his arrest. If so, the information will take the colour of confession while in custody and the prohibition contained in Section 25 will apply for the statement to be admissible in evidence. The recovery should have been effected after recording and proving the Crl.Appeal No.488 of 2008 **==> picture [23 x 8] intentionally omitted <==** statement leading to the recovery, as contemplated in Section 27 of the Evidence Act. 13. Even if it is taken the information given by the accused does not amount to confession, the investigating officer (in this case, the detecting officer) was bound to take down the information in writing and send a copy thereof to his immediate official superior within seventy two hours, as mandated in Section 42(2) of the NDPS Act. Indisputably, neither was the information taken down in writing nor a copy of the information sent to the immediate superior officer. On the other hand, PW1 submitted Ext.P7, seeking permission of the Magistrate for conducting the search without warrant. It is interesting to note that even though Ext.P7 is dated 24.04.2006, it was endorsed by the Magistrate only on 04.05.2006. 14. As regards the subsequent recovery, the prosecution case is that recovery of 1.955 Kgs of -12- Crl.Appeal No.488 of 2008 Ganja was effected from a concealed place in the appellant's house. Pertinently, no material is produced to prove that the house from where the contraband was seized belonged to the appellant. Surprisingly, PW9, the investigating officer admitted that no effort was made to prove that the house belonged to the appellant. 15. The second search and seizure are vitiated for failure to prepare seizure mahazar or scene mahazar. All that done was to prepare Ext.P8 search list and get it countersigned by the appellant and the witnesses. Before court, the witnesses stated that they had not entered the house or witnessed the actual recovery of the contraband. As such, their testimony with regard to the seizure is of no evidentiary value. 16. The next question is whether the seized samples were promptly produced in court and sent for analysis. In this context, it is essential to note that, Ext.P11 property list dated 25.04.2006 Crl.Appeal No.488 of 2008 ## -13- reached the Special Court only on 03.05.2006. The delay is sought to be explained by stating that, by mistake, the samples were initially produced before the Judicial First Class Magistrate-II, Perambra and returned for producing before the Special Court. Of course, Ext.P11 contains an undated endorsement made by the Magistrate while returning the FIR and connected papers for production before the Special Court. Even then the question as to what happened to the samples after it was returned from the Magistrate Court remains unanswered. Here, except a vague statement by PW1 that, after return, the samples were kept in safe custody, no document is produced to prove this aspect. The omission to affix the image of the seal on Ext.P5 seizure mahazar and produce a sample seal along with the property list also impinges the authenticity of the sampling. The law on this point has been Crl.Appeal No.488 of 2008 -14- clearly laid down in _**Faijas v. State of Kerala [2020 KHC 5259].**_ Paragraphs 44, 45 and 46 of the judgment being of relevance, are extracted hereunder; _“44. The purpose of putting the specimen seal impression in the seizure mahazar is to give an opportunity to the court to verify the same and satisfy that the seized substances reached the court without any tampering. A specific space is provided in the forwarding note for affixing the specimen of the seal affixed on the sample. The specimen of the seal is provided in the forwarding note to enable the chemical examiner to compare it with the seal on the sample and come to the conclusion that it reached the laboratory without any tampering. The recital in the chemical analysis report that the seal on the sample packet was intact and it tallied with sample seal provided alone is not sufficient to come to the conclusion that the very same sample taken by the detecting officer at the spot of the occurrence had reached the laboratory for analysis. It is usual that seal of the court would be affixed while sending the sample for_ Crl.Appeal No.488 of 2008 -15- _analysis to the chemical examiner. Therefore, the sample seal mentioned in the chemical analysis certificate can also be the seal of the court. A comparison of the seal affixed on the sample packet with the specimen seal of the court will not give any assurance that the sample taken from the possession of the accused had reached the chemical examiner for analysis. Such an assurance would be possible only when the specimen of the seal affixed on the sample packet is provided to the chemical examiner for comparison. Such link evidence is missing in this case._ _45. To put it in a nutshell, the unexplained delay in producing the seized substances before the court and absence of evidence as to how and in what condition the seized substances, including the samples, were kept in the police station till the date of their production in the court along with the circumstance that there is absence of evidence regarding the nature of the seal used by the detecting officer for sealing the sample packets, create doubt as to whether seizure of the substances was effected from the accused in the manner alleged by the prosecution. The benefit of that doubt shall be given to the accused._ Crl.Appeal No.488 of 2008 -16- _46. In the light of the discussion above, the appellant is entitled to be acquitted solely on the ground mentioned in the preceding paragraph.”_ The casual manner in which the detecting and investigating officers handled the sample cuts at the root of the prosecution case. Being so, this Court is left with no alternative than to interfere with the impugned judgment. In the result, the appeal is allowed, the judgment of the trial court set aside and the appellant acquitted. The bail bonds executed by the appellant and sureties will stand cancelled. Sd/- **V.G.ARUN JUDGE** Scl/