Jahamgeer @ Lalu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 15TH DAY OF JANUARY 2020 / 25TH POUSHA, 1941** ## **CRL.A.No.1309 OF 2019** **AGAINST THE JUDGMENT IN SC 723/2018 DATED 29-04-2019 OF ADDITIONAL DISTRICT & SESSIONS COURT - VI, KOLLAM CRIME NO.6/2018 OF Excise Circle Inspector Office, Kollam** ## **APPELLANT/ACCUSED:** **JAHAMGEER @ LALU, AGED 41 YEARS S/O.BASHEER, NEAR KANJANGADU CASHEW FACTORY, POLAYATHODU CHERRY, MUNDAKKAL VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT - 691 010, NOW RESIDING AT S.S.MANZIL, KUDAVOOR P.O., PUNNASSERIKONAM, MELTHONNAKKAL VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT - 695 313.** **BY ADVS. SHRI.PRAVEEN S. SHRI.SUNIL KUMAR A.G SHRI.MATHEW K.T. SHRI.GEORGE K.V.** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, KOLLAM EXCISE CIRCLE OFFICE, KOLLAM - 691 001, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031 (CR.NO.6 OF 2015 OF KOLLAM EXCISE CIRCLE OFFICE).** ## **SRI C K PRASAD-PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-012020, THE COURT ON 15-01-2020 DELIVERED THE FOLLOWING:** Crl.A.No.1309/2019 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.A.No.1309 of 2019 ------------------------------------------Dated this the 15[th] day of January, 2020 ## **J U D G M E N T** The appellant is the sole accused in the case S.C.No.723/2018 on the file of the Additional Sessions Court-VI, Kollam. 2. The appellant stands convicted and sentenced for committing an offence punishable under Section 22(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act'). 3. The prosecution case is as follows: On 25.03.2015, at about 19.30 hours, PW1 who was the Excise Circle Inspector of Kollam Excise Circle Office, received information that the accused was selling the psychotropic substance by name Buprenorphine ampoules. He gave information in writing in that regard to his superior officers. At about 20.30 hours, when he reached the Crl.A.No.1309/2019 3 road in front of Umayanalloor Co-operative Bank near Kottiyam Junction, he saw the accused and intercepted him. PW1 introduced himself to the accused and informed him that his body search had to be conducted and that he had the right to get the body search conducted in the presence of a Magistrate or a Gazetted Officer. The accused told that PW1 himself can conduct the search. PW1 then conducted the search of the body of the accused. He found a plastic cover in the pocket of the trousers of the accused. He opened and examined the plastic cover and then it was found that it contained four ampoules of Buprenorphine. PW1 took samples and sealed them and seized them as per Ext.P9 mahazar and arrested the accused. 4. The case against the accused was registered as C.R.No.6/2015 of the Kollam Excise Circle Office. After completing investigation, PW6 Excise Inspector filed chargesheet against the accused for the offence punishable under Section 22(b) read with Section 8(c) of the Act. 5. The trial court framed charge under Section 22(b) read with Section 8(c) of the Act. The accused pleaded not guilty. Crl.A.No.1309/2019 4 During the trial of the case, the prosecution examined PW1 to PW6 and marked Exts.P1 to P15 documents and MO1 and MO2 material objects. No evidence was adduced by the accused. 6. The trial court found the accused guilty of the offence punishable under Section 22(b) of the Act and convicted him thereunder. The trial court sentenced the accused to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.20,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of two months. 7. Heard learned counsel for the appellant and also the learned Public Prosecutor. Perused the records. 8. PW1 Excise Circle Inspector who detected the offence has given evidence in detail narrating the occurrence in which the psychotropic substance was seized from the possession of the accused. He identified the accused in court. He also identified in the court the packet containing the psychotropic substance. 9. PW5 was the Preventive Inspector who was in the excise party led by PW1. He has also given evidence regarding the Crl.A.No.1309/2019 5 seizure of the psychotropic substance from the possession of the accused. 10. PW1 has sworn to the entire incident in necessary details. His evidence, on all material particulars, is corroborated by the evidence of PW5 and also Ext.P9 mahazar prepared by him at the spot of the occurrence. There is no striking improbability or material contradiction or discrepancy in the evidence of PW1 and PW5 regarding the seizure of the psychotropic substance from the possession of the accused. 11. There is no whisper of an allegation that PW1 had any motive to falsely implicate the accused in such a serious crime. There is nothing to show that the excise officers have falsely implicated the appellant with a view to settle any personal score with him. Therefore, even though the independent witness examined as PW4 has not supported the prosecution case, there is no sufficient ground to disbelieve the evidence of PW1 and PW5 regarding the seizure of the psychotropic substance from the possession of the appellant. Crl.A.No.1309/2019 6 12. Ext.P15 is the certificate of chemical examination received in respect of the sample sent from the court to the Chemical Examiner. Ext.P15 shows that the sample which was produced before the court and forwarded to the laboratory contained Buprenorphine, a narcotic analgesic. 13. There is no challenge made by the appellant in the cross-examination of PW1 with regard to the seizure of the sample or production of the material objects, including the sample, before the court. The appellant has no case that there was any infirmity in the preparation of the documents for sending the sample for chemical analysis. There is also no challenge made by the appellant to the evidence of PW1 regarding the procedure and process adopted by him for taking the sample at the spot of the occurrence. Therefore, it can be safely concluded that the sample taken at the spot of the occurrence was produced before the court and it was forwarded to the laboratory and Ext.P15 is the result of chemical examination in respect of that sample. 14. Though the petition of appeal contains several grounds Crl.A.No.1309/2019 7 challenging the conviction of the appellant, learned counsel for the appellant has raised only one contention during the hearing of the appeal. The thrust of the contention raised by the learned counsel for the appellant before this Court was upon violation of the provision contained in Section 50 of the Act by PW1. 15. Learned counsel for the appellant contended that there is discrepancy in Ex.P9 mahazar and Ext.P6 notice given to the accused informing him of the right to be searched in the presence of a Magistrate or Gazetted Officer. Learned counsel for the appellant also contended that PW1 had informed the accused that he (PW1) was a Gazetted Officer and it was not proper for him tell his rank to the accused. 16. PW1 has given evidence that he told his name and official designation to the accused and informed the accused that he is an empowered officer to detect cases under the Act and that the accused had the right to seek the presence of a Magistrate or Gazetted Officer for conducting his body search. PW1 has stated that he gave notice in writing to the accused in that regard. PW1 has also stated that then the accused told him Crl.A.No.1309/2019 8 that he (PW1) may conduct the body search. Ext.P9 mahazar contains recitals corroborating the evidence of PW1 to the above effect. Ex.P6 is the copy of the notice given by PW1 to the accused informing the accused of his right. The contents of Ext.P6 also corroborate the evidence of PW1. 17. Of course, Ext.P6 notice contains an endorsement made and signed by the accused giving his consent for search to be made by PW1. Ext.P9 mahazar does not contain any recital that the accused gave such consent in writing. Ext.P9 mahazar only refers to the oral consent given by the accused. PW1 has also not given evidence of any written consent given by the accused. The omission in the evidence of PW1 in this regard and the omission in Ext.P9 mahazar to refer to such written consent for search given by the accused do not amount to violation of the provisions contained in Section 50 of the Act. 18. The provisions of sub-section (1) of Section 50 of the Act make it imperative for the empowered officer to "inform" the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or Crl.A.No.1309/2019 9 a Magistrate. Failure to "inform" the suspect about the existence of his said right would cause prejudice to him. It is not necessary that the information required to be given under Section 50 of the Act should be in a prescribed form or in writing. But, it is mandatory that the suspect is made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. It would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision (See **Vijaysinh Chandubha Jadeja v. State of Gujarat : AIR 2011 SC 77** ). 19. In the instant case, the evidence of PW1 and Ext.P6 notice show that the accused was not merely given an option to be searched in the presence of a Magistrate or Gazetted Officer but he was informed of his right to be searched in the presence of such officer. The accused did not choose to exercise the right. It is not mandatory that the consent of the accused to be Crl.A.No.1309/2019 10 searched by the detecting officer should be given in writing. In such circumstances, I find that there was no violation of the provision contained in Section 50 of the Act. 20. Regarding the disclosure made by PW1 to the accused that he is a gazetted officer, it is to be noted that Ext.P9 mahazar as well as Ext.P6 notice clearly shows that the accused was informed of his right to be searched by another gazetted officer. Therefore, there was no scope of creating any confusion in the mind of the accused of his right. 21. The accused was carrying the psychotropic substance in the pocket of his trousers. Conscious possession of the contraband article by the appellant stands established from the evidence adduced by the prosecution in the case. 22. No dispute is raised with regard to the fact that the quantity of the psychotropic substance seized amounts to intermediary quantity. 23. In the aforesaid circumstances, the prosecution was able to prove beyond doubt that the appellant/accused committed an offence punishable under Section 22(b) of the Act. Crl.A.No.1309/2019 11 Conviction of the appellant by the trial court for that offence is only to be confirmed. 24. The trial court has sentenced the accused to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.20,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of two months. Considering the facts and circumstances of the case, I find that the sentence of imprisonment imposed on the accused by the trial court has to be modified. 25. In the result, the appeal is allowed in part. Conviction of the appellant/accused for the offence under Section 22(b) of the Act is confirmed. The sentence of imprisonment imposed on the appellant/accused by the trial court is modified and reduced to rigorous imprisonment for a period of two years. The sentence of fine imposed on the appellant/accused is confirmed but the sentence of imprisonment in default of payment of fine is reduced to rigorous imprisonment for a period of one month. The period during which the accused was under detention in jail during the period of investigation and the trial of the case shall 12 Crl.A.No.1309/2019 be set off under Section 428 Cr.P.C against the substantive sentence of imprisonment. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr