In the High Court of Kerala at Ernakulam - Crl.A Nos. 1588/2008, 1628/2008 and 2078/2008

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 9[TH] DAY OF AUGUST 2023 / 18TH SRAVANA, 1945 CRL.A NO. 1588 OF 2008** **SC 518/2006 OF THE ADDITIONAL SESSIONS COURT-I, PALAKKAD** ## **APPELLANT/S:** M.MUTHU S/O. P.M.MOKKARASE THEVAR, KARUKAPPIMALAI, K.MUTHALAKULAM PO, USALAMPETTI TALUK,, MADURAI DISTRICT BY ADVS. SRI.C.C.THOMAS (SR.) SRI.NIREESH MATHEW ## **RESPONDENT/S:** STATE OF KERALA DEPUTY RANGER, MUKKALI FOREST STATION,, PALAKKAD DISTRICT, REPRESENTED BY, PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM **OTHER PRESENT:** SR.PP.RENJITH GEORGE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.07.2023, ALONG WITH CRL.A.1628/2008 AND CRL.A.2078/2008, THE COURT ON 09.08.2023 DELIVERED THE FOLLOWING: Crl.A.Nos.1588, 1628 & 2078 of 2008 -2- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 9[TH] DAY OF AUGUST 2023 / 18TH SRAVANA, 1945 CRL.A NO. 1628 OF 2008** **SC 518/2006 OF THE ADDITIONAL SESSIONS COURT-I, PALAKKAD** ## **APPELLANT/S:** RAJU THAZHE ABBANNUR, PADAVAYAL VILLAGE,, THAVALAM P.O. BY ADV SRI.NIREESH MATHEW ## **RESPONDENT/S:** STATE OF KERALA DEPUTY RANGER, MUKKALI FOREST STATION,, PALAKKAD DISTRICT, REPRESENTED BY PUBLIC, PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.07.2023, ALONG WITH CRL.A.1588/2008 AND CRL.A.2078/2008, THE COURT ON 09.08.2023 DELIVERED THE FOLLOWING: Crl.A.Nos.1588, 1628 & 2078 of 2008 -3- **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 9[TH] DAY OF AUGUST 2023 / 18TH SRAVANA, 1945 CRL.A NO. 2078 OF 2008** **SC 518/2006 OF THE ADDITIONAL SESSIONS COURT-I, PALAKKAD** ## **APPELLANT/S:** SASI PADAVAYAL VILLAGE, THAVALAM (PO). BY ADV SRI.P.K.MOHANAN(PALAKKAD) ## **RESPONDENT/S:** STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.07.2023, ALONG WITH CRL.A.1588/2008 AND CRL.A.1628/2008, THE COURT ON 09.08.2023 DELIVERED THE FOLLOWING: Crl.A.Nos.1588, 1628 & 2078 of 2008 -4- ## **JUDGMENT** Dated this the 09[th] day of August, 2023 These appeals are filed by the accused in SC No.518 of 2006, aggrieved by their conviction for the offence under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the Act' for short) and the consequent sentence of rigorous imprisonment of three years and fine of Rs.25,000/-. The brief facts, essential for deciding the appeals, are as under; On 13.11.2005, by about 7.30 a.m, while the forest party led by PW1, the Deputy Ranger, Mukkali Forest Station, was engaged in checking of vehicles near the Mukkali Forest Check Post, they found the appellants travelling on a motorcycle towards Mannnarkkad, with the second appellant sitting in the middle, holding a bag on his lap. On questioning, the appellants revealed that the bag contained ganja. Thereupon, the bag Crl.A.Nos.1588, 1628 & 2078 of 2008 **==> picture [16 x 9] intentionally omitted <==** and the packet inside were weighed and found to be 5.200 kgs. The packet inside the bag was thereafter opened and 50 grams of ganja taken as sample. Thereafter, PW1 informed the appellants that he is going to search their body and asked whether they wanted the body search to be conducted in the presence of a Gazetted Officer or Magistrate. The appellants having answered in the negative, Ext.P1 consent for conducting personal search was recorded. After completing the statutory formalities, including preparation of Ext.P13 seizure mahazar, the appellants were arrested and taken to the Mukkali Forest Station. On reaching the Station, Exts.P3 to P5 confessional statements of the appellants were recorded. Thereafter, the sample and balance contraband were produced before the jurisdictional court under Ext.P8 property list. The appellants were also produced before court and remanded to judicial custody. After obtaining ## Crl.A.Nos.1588, 1628 & 2078 of 2008 -6- bail, the appellants gave Exts.P9 to P11 confessional statements before the investigating officer. The sample was forwarded to the Chemical Analyst and on testing, was found to be ganja. 2. In order to prove the prosecution case, PWs 1 and 2 were examined and Exts.P1 to P13 documents as well as MO1; the sample of ganja, marked. The trial court, on appreciation of evidence and consideration of legal contentions, found the prosecution to have succeeded in proving that the appellants were in illegal possession of ganja and hence, guilty of the offence punishable under Section 20(b)(ii)(B) of the Act. 3. Having heard Advs. Vivek Venugopal and P.K.Mohanan (Palakkad) for the appellants and Public Prosecutor Renjith George for the State and having scrutinised the evidence and the impugned judgment, I am taken aback by the manner in which the investigation and the ## Crl.A.Nos.1588, 1628 & 2078 of 2008 -7- prosecution was conducted. The follies in the investigation starts with the indifferent manner in which the seizure of the contraband was effected. The seizure mahazar shows that the ganja was weighed along with the big shopper bag in which it was being carried. The ganja, as such, was never weighed separately. The detecting officer (PW1) claims to have collected 50 grams for the purpose of analysis. Surprisingly, neither the big shopper bag nor the balance ganja were produced in court or marked as material objects. The next mistake committed by the detecting officer is the manner in which the body search of the accused was conducted. Ext.P1 is stated to be the document prepared on the basis of the consent for body search given by the accused. Ext.P1 statement is not written by the accused and on the other hand, is prepared by the detecting officer, stating that the accused had consented for PW1 himself conducting the search. ## Crl.A.Nos.1588, 1628 & 2078 of 2008 -8- The signatures of the accused are seen affixed under the statement. The only witness to the statement is PW2, the official who had accompanied PW1. Even going by Ext.P1, all that was done by PW1 was to ask the accused whether they wanted presence of a Gazetted Officer or Magistrate during body search. In this context, it may be worthwhile to refer to the law on the point declared by the Apex Court through a catena of decisions, including _**Vijaysinh Chandubha**_ _**Jadeja v. State of Gujarat [(2011) 1 SCC 609]**_ **.** Paragraphs 29 to 32 of which read as under; _“29.In view of the foregoing discussion, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be_ Crl.A.Nos.1588, 1628 & 2078 of 2008 -9- _searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision._ _30. As observed in Presidential Poll, In re[(1974) 2 SCC 33] : (SCC p. 49, para 13)_ _“13. … It is the duty of the courts to get at the real intention of the legislature by carefully attending [to] the whole scope of the provision to be construed. ‘The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole.’ ”_ _31. We are of the opinion that the concept of “substantial compliance” with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said section in Joseph Fernandez[(2000) 1 SCC_ Crl.A.Nos.1588, 1628 & 2078 of 2008 -10- _707 : 2000 SCC (Cri) 300] andPrabha Shankar Dubey [(2004) 2 SCC 56 : 2004 SCC (Cri) 420] is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh case [(1999) 6 SCC 172 : 1999 SCC (Cri) 1080] . Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf._ 32. _We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well. ”_ The circumstances under which Ext.P1 was prepared and the manner in which it is worded, leaves no ## Crl.A.Nos.1588, 1628 & 2078 of 2008 -11- room for doubt that there was only farcical compliance of the mandatory requirement of Section 50 of the Act. 4. Another blunder committed by PW1 is in having entered the Crime (No.OR 27/2005) in Ext.P13 seizure mahazar prepared at the site, much prior to the officials reaching the forest station along with the accused. Although PW1 attempted to explain the incongruity by stating that he had noted the last crime number recorded at the station before proceeding to conduct inspection of vehicles, the explanation can only be rejected, when considered along with the other inconsistencies in the prosecution case. 5. Other than recovery and seizure of the contraband, the prime material relied on by the prosecution is Exts.P3 to P5 confessional statements given to PW1 and Exts.P9 to P11 given to the investigating officer (CW5). The trial court placed much reliance on the statements for Crl.A.Nos.1588, 1628 & 2078 of 2008 -12- arriving at the finding of guilt. The confessional statements can no longer be relied on in view of the law laid down in _**Tofan Singh v. State of T.N [(2021) 4 SCC 1]**_ , wherein the Apex Court has declared that the officers empowered under Section 53 of the Act are police officers for the purpose of attracting bar under Section 25 of the Evidence Act against admissibility of confessions. It is categorically held that any confessional statement made to officers under Section 53 cannot be taken into account in order to convict an accused, except to the extent found relevant under Section 53-A, that too, only when it is corroborated in accordance with law. Section 53A, dealing with relevancy of confessional statements under certain circumstances, has no application in the case at hand. Hence, the embargo against acting upon the confessional statements of the accused applies with full force. Crl.A.Nos.1588, 1628 & 2078 of 2008 -13- 6. The above inadequacies is compounded by the manner in which the sample was dealt with after its collection. In his evidence, PW1 has stated that the sample (MO1) was produced in court on 13.11.2005 itself. The said statement cannot be accepted since Ext.P8 property list was received in the Sessions Court only on 17.11.2005. There is absolutely no evidence as to what happened to the sample between 13.11.2005 and 17.11.2005. Even the forwarding note, under which the sample was sent from court for chemical analysis, is not marked in evidence. The records reveal that the sample was sent under a forwarding note on 17.01.2006. As per Ext.P12 report, the sample was received at Chemical Analysis Laboratory only on 25.01.2006. The prosecution has no explanation for the sample sent on 17.01.2006, having reached the Chemical Analyst only on 25.01.2006. 7. In this context, the following opinion Crl.A.Nos.1588, 1628 & 2078 of 2008 -14- ## expressed by the Supreme Court in _**State of Uttar**_ ## _**Pradesh v Hansraj @ Hansu [(2018) 18 SCC 355]**_ assumes relevance; _“7.The High Court has also pointed out that it was incumbent on the part of the prosecution to lead the evidence to show as to how and in what conditions the articles were preserved at the police station and how safely they were taken from there to the respective chemical examiners by its carriers. The learned counsel for the State has submitted that the investigating officer in this particular case has passed away and, therefore, the prosecution was handicapped in adducing the necessary evidence. Notwithstanding the death of the investigating officer, nothing prevented the prosecution from examining any other witness who was associated with the investigation and adducing necessary evidence to prove as to how and in what conditions the articles were preserved at the police station/police station godown.”_ 8. This Court also dealt with the issue in _**Faijas v. State of Kerala [ 2020 KHC 5259]**_ and held as under; **==> picture [287 x 11] intentionally omitted <==** Crl.A.Nos.1588, 1628 & 2078 of 2008 -15- _15/11/2011. Ext.P8 property list shows that the seized substances were produced in the court only on 19/11/2011. The prosecution has not explained the reason for the delay in producing the seized substances, including the samples, before the court. It is not explained what prevented the detecting officer or the investigating officer to produce the seized articles in the court immediately after the seizure. In view of the unexplained delay in producing the seized articles before the court, tampering with such articles at the police station cannot be ruled out.”_ While the prosecution case was rendered shaky by the above factors, it got shattered by the 50 grams of ganja collected as sample (MO1), becoming 33.01 grams by the time it reached the Chemical Analyst. 9. Even though the various other infirmities like failure to produce and mark the arrest memo, failure to affix image of the sample seal in the seizure mahazar, failure to produce sample seal along with the material object, Crl.A.Nos.1588, 1628 & 2078 of 2008 -16- absence of independent witnesses, failure to prove conscious possession by first and second accused etc are also highlighted by the learned Counsel for the appellants, the inconsistencies discussed earlier being sufficient to discard the prosecution case in its entirety, I am not delving into those contentions. It has to be stated that the investigation was conducted in a haphazard manner. As regards the prosecution, less said the better. It can therefore be unhesitatingly held that the trial court went wrong in convicting the appellants based on the farcical investigation and lopsided prosecution. In the result, the appeals are allowed, the impugned judgment set aside and the appellants acquitted. The bail bonds executed by the appellants and sureties will stand discharged. Sd/- ## **V.G.ARUN JUDGE** Scl/