Harris and Mohammad Ali v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **TUESDAY, THE 23RD DAY OF AUGUST 2016/1ST BHADRA, 1938** ## **CRL.A.No. 570 of 2009 (A)** **-------------------------AGAINST THE JUDGMENT IN SC. NO.36/2007 OF SPECIAL COURT (NDPS ACT CASES), VATAKARA DATED 17-03-2009.** **.......** ## **APPELLANTS/ACCUSED NOS.1 AND 2:** **---------------------------------------------------------** **1. HARRIS, S/O. MOOSA, VYSTAN HOUSE, VELLAMUNDA P.O., MANANTHAVADY TALUK, WAYANAD DISTRICT.** **2. MOHAMMAD ALI, S/O.ALI, MAMINA HOUSE, VELLAMUNDA P.O., MANANTHAVADY TALUK, WAYANAD DISTRICT.** **BY ADV. SRI.SUNNY MATHEW.** ## **RESPONDENT/COMPLAINANT:** **---------------------------------------------** **STATE OF KERALA, THROUGH THE CIRCLE INSPECTOR OF EXCISE, EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL SQUAD, KOZHIKODE, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.HRITWIK.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** rs. ## B. KEMAL PASHA, J ================= Crl.Appeal No.570 of 2009 ================= Dated this the 23[rd] day of August, 2016 ## J U D G M E N T The appellants are the accused in Sessions Case No.36 of 2007 of the Court of the Special Judge (NDPS Act Cases), Vatakara. A1, who is the 1[st] appellant herein, stands convicted under Section 20(b) (ii)B of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to ‘the NDPS Act’) and sentenced to undergo rigorous imprisonment for one and a half years and to pay a fine of `10,000/-, in default to undergo rigorous imprisonment for six more months. A2, who is the 2[nd] appellant herein, stands convicted under Section 20(b) (ii)A of the the NDPS Act and sentenced to undergo rigorous imprisonment for six months and to pay a fine of `3,000/-, in default to undergo rigorous imprisonment for one more month. Crl.A.No.570 of 2009 2 2. PW-1 was the Circle Inspector of Excise attached to the Excise Enforcement and Anti-Narcotic Special Squad, Kozhikode. While he along with the Excise party were on patrol duty on 25.10.2004, they could see the accused walking through the side of the road near the main gate of the District Ayurvedic Hospital at Puthiyangadi amsom desom of Kozhikode Taluk, by carrying two plastic bags in their right hand. 3. On seeing the Excise party, the accused attempted to move away. They were stopped and they were made aware of their right to have their body searched in the presence of a Magistrate or Gazetted Officer. The accused wanted the presence of a Gazetted Officer. Thereupon, PW-1 procured the presence of PW-7, who was the Circle Inspector of Excise, Kozhikode, being a Gazetted Officer, at 3 p.m. On the body search of A1, nothing was recovered. The examination of the plastic bag held by A1 revealed the presence of 1,800 grams of ganja. A sample of 25 3 Crl.A.No.570 of 2009 grams was drawn and the contraband was seized. A1 was placed under arrest. 4. On the body search of A2, an amount of `400/- was seized from his shirt pocket. No incriminating materials were seized. On the examination of the plastic bag held by A2, it was revealed that it contained 450 grams of ganja. The sample was drawn from the said ganja also, and the contraband was seized, and A2 was also placed under arrest. 5. Exhibit-P4 mahazar was prepared. PW-6, Circle Inspector of Excise, Vatakara, took over the investigation and he filed the complaint on getting Exhibit-P14 certificate of chemical analysis. 6. On the side of the prosecution, PW-1 to PW- 7 were examined, Exhibits-P1 to P14 were marked and MO-1 to MO-5 were identified. On the side of the accused, Exhibit-D1 was marked. The court below found A1 guilty of the offence punishable under Crl.A.No.570 of 2009 4 Section 20(b)(ii)B of the NDPS Act, convicted him thereunder and sentenced him as aforesaid. The court below found A2 guilty of the offence punishable under Section 20(b)(ii)A of the NDPS Act, convicted him thereunder and sentenced him as aforesaid. 7. Heard the learned counsel for the appellants and the learned Public Prosecutor. 8. The learned counsel for the appellants has mainly argued that there is non-compliance of the mandatory provisions contained under Section 50 of the NDPS Act in this case and therefore, the conviction and sentenced passed by the court below are liable to be set aside. It has also been argued that PW-7 is also of the very same Department of Excise and therefore, he could not have been considered as a Gazetted Officer, in the presence of whom, the search could be conducted under Section 50 of the NDPS Act. 9. According to PW-1, he made aware of the accused, regarding their right to be searched in the Crl.A.No.570 of 2009 5 presence of a Gazetted Officer or Magistrate and both the accused demanded the presence of a Gazetted Officer. Consequently, he issued a notice to PW-7 seeking his presence for the body search of the accused. PW-7 reached the spot at 3 p.m. and thereafter, he conducted the body search of both the accused. It has to be noted that nothing incriminating has been seized from the body search of A1 and A2. At the same time, 1,800 grams of ganja was seized from the plastic bag held by A1 and 450 grams of ganja was seized from the plastic bag held by A2. 10. The learned counsel for the appellants has invited the attention of this Court to the decision in State of Rajasthan v. Parmanand and another [(2014) 5 SCC 345]; wherein it was held that what is meant by Section 50 of the NDPS Act is individual communication with regard to the right of the accused under Section 50 of the NDPS Act and not a joint communication. Crl.A.No.570 of 2009 6 11. According to the learned counsel for the appellants in this case the communication made by PW-1 regarding the right of the accused under Section 50 of the NDPS Act is by way of joint communication and not an individual communication. On going through the evidence of PW-1, it seems that both the accused had demanded the presence of a Gazetted Officer for their body search, on getting informed of their rights under Section 50 of the NDPS Act. The evidence of PW-1 clearly shows that communication was made to both the accused persons. 12. In the decision in Parmanand’s case (Supra) a written communication was given and in the written communication, only one of the accused had affixed his signature for himself and also for and on behalf of the other accused. It was held therein that no written communication was required; whereas oral communication was sufficient. The facts in Parmanand’s case (Supra) are not identical or similar Crl.A.No.570 of 2009 7 to the facts involved in this case. In Parmanand’s case (Supra), the Detecting Officer had obtained an acknowledgement from one of the accused alone in the written communication, that too for expressing the willingness of that accused to be searched by the Superintendent of Police, who was the leader of the raiding party. It was on those grounds, it was found that there was non-compliance of the mandatory provisions of Section 50 of the NDPS Act in that case. 13. At the same time, in the present case, PW7, the Gazetted Officer invited for the search, was not a member of the raiding party. True that he is a Gazetted Officer attached to the Excise Department. There is no bar in inviting the Gazetted Officer of the very same Department to witness the search within the meaning of Section 50 of the NDPS Act, when such an Officer is not a member of the detecting or raiding party. Here, admittedly, PW-7 was not a member of the raiding party. He was invited through a notice and Crl.A.No.570 of 2009 8 he reached the spot at 3 p.m. PW-7 is a Gazetted Officer of one of the Departments mentioned in Section 42 of the NDPS Act. 14. From the evidence of PW-1, which is fully corroborated by the evidence of PW-3, Preventive Officer of Excise Enforcement and Anti-Narcotic Special Squad, Kozhikode, it has clearly come out that the option to be search in the presence of a Gazetted Officer or Magistrate was put to both the accused and that both the accused demanded the search to be conducted in the presence of a Gazetted Officer. The evidence of PW-1, PW-2 and PW-7 clearly reveal that a body search was properly conducted by complying with the mandatory provisions under Section 50 of the NDPS Act. Apart from that nothing incriminating was recovered in such body search. 15. A quantity of 1,800 grams of ganja was seized from the plastic bag carried by A1 and a quantity of 450 grams of ganja was seized from the Crl.A.No.570 of 2009 9 plastic bag carried by A2. Samples were properly drawn and the same were subjected to chemical analysis. All the procedures were properly complied with by PW-1. The same is evident from Exhibit-P4 mahazar. Exhibit-P14 clearly shows that the samples contained partially crushed dry greenish leafy material with flowering and fruiting tops. The chemical analysis revealed that the samples were ganja. 16. The case was properly investigated and the complaint was ultimately filed. The investigation was not at defective in any manner. There is absolutely nothing to suspect the consistent versions in the evidence of PW-1, PW-2 and PW-7. When it was proved that A1 was in possession of 1,800 grams of ganja, he has committed the offence punishable under Section 20(b)(ii)B of the NDPS Act. When it is proved that A2 was found in possession of 450 grams of ganja, he has committed an offence punishable under Section 20(b)(ii)A of the NDPS Act. There is absolutely Crl.A.No.570 of 2009 10 nothing to interfere with the conviction passed by the court below. 17. Regarding sentence, the learned counsel for the appellants has sought for leniency in sentence. It seems that the court below has extended maximum possible leniency in the question of sentence to the appellants. Even when the A1 was found in possession of 1,800 grams of ganja, the court below had imposed a sentence of rigorous imprisonment for one and a half years only and to pay a fine of `10,000/-, in default to under rigorous imprisonment for six more months to A1. Regarding the sentence of A2, it seems that when he was found in possession of 450 grams of ganja, the court below has chosen to impose a sentence of rigorous imprisonment for six months only and to pay a fine of `3,000/-, in default to undergo rigorous imprisonment for one more month to A2. Considering the gravity of the matter, this Court is satisfied that the sentence imposed by the court below on both the Crl.A.No.570 of 2009 11 accused are also not liable to be interfered with. Matters being so, this appeal is devoid of merits and is only to be dismissed and, I do so. In the result, this Crl.Appeal is dismissed. Sd/- B. KEMAL PASHA, JUDGE. DSV/25/8/16 // True Copy // P.A. To Judge