Jayakumar v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE SOPHY THOMAS`** ``` WEDNESDAY,THE25[TH]DAYOFOCTOBER2023/3RDKARTHIKA,1945 CRL.REV.PETNO.241OF2016 ``` ## **`CC 368/2008 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE, ERNAKULAM CRA 72/2014 OF 5th ADDITIONAL DISTRICT & SESSIONS COURT, ERNAKULAM`** ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` 1JAYAKUMAR ``` ``` AGED46YEARS S/O.RAMACHANDRANNAIR, SRIVAYALILANGARAVEGETAL, EROORKARA,NADAMAVILLAGE, ERNAKULAM. ``` ``` 2SAJIABRAHAMNOMORE ``` ``` BYADVSRI.SANILKUMAR ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR, HIGHCOURTOFKERALA,ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` SHRIM.C.ASHI,PUBLICPROSECUTOR ``` ``` THISCRIMINALREVISIONPETITIONHAVINGBEENFINALLYHEARDON 25.10.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.R.P No.241 of 2016 2 ## **O R D E R** The 1[st] accused in CC No.368 of 2008 on the file of Additional Chief Judicial Magistrate Court, Ernakulam is the revision petitioner herein, challenging the judgment in Crl.Appeal No.72 of 2014 on the file of 5[th] Additional District and Sessions Court, Ernakulam, by which his conviction and sentence under Section 22(a) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as ‘the NDPS Act’), were upheld. 2. The prosecution case is that, in the afternoon of 03.07.2007, PW5-Circle Inspector of Police, Ernakulam South, received a tip-off that two persons were selling psychotropic substances at the road near Housing Board Complex, Panampilly Nagar. PW5 proceeded to that place and found the revision petitioner and another person in a suspicious circumstance. Upon PW5 informing them, their right to be searched in the presence of a Gazetted Officer or a Magistrate, the revision petitioner requested presence of a Magistrate while conducting search on his body, and accordingly, PW5 procured the presence of PW1-Tahsildar cum Executive Magistrate of Kanayannoor Taluk, and the body search of the revision petitioner was conducted in his presence. PW5 recovered 30 ampules each containing 2ML of Crl.R.P No.241 of 2016 3 buprenorphine, a narcotic drug and psychotropic substance, from the revision petitioner, and 29 similar ampules from A2. They had no valid licence or authority to keep buprenorphine with them and thus, they were alleged to have committed an offence punishable under Section 22(a) of the NDPS Act. 3. Pending trial, the 2[nd] accused passed away. The revision petitioner/1[st] accused was convicted by the trial court under Section 22(a) of the NDPS Act, and sentenced to undergo rigorous imprisonment for three months, and to pay fine of Rs.5,000/- and in default to undergo rigorous imprisonment for one month more. Against the conviction and sentence, the revision petitioner preferred Crl.Appeal No.72 of 2014, and as per judgment dated 24.11.2015, the appellate court dismissed his appeal, upholding the conviction and sentence passed by the trial court. Hence he preferred this revision on the following grounds: (i) The judgment of the trial court is illegal, irregular and against the facts and evidence. (ii) Prosecution is bad for non compliance of Section 42(2), 50 and 57 of the NDPS Act, and is in violation of the judicial pronouncements by the Apex Court as well as various High Courts. Crl.R.P No.241 of 2016 4 (iii) The revision petitioner was not informed of his right to be searched in the presence of a Gazetted officer or a Magistrate, in writing. (iv) The report of arrest and seizure was not given to the superior officer by PW5, within 48 hours and hence violated Section 57 of the NDPS Act. (v) The trial court ought to have found that the revision petitioner accompanied his friend to the Police Station, and due to an altercation with the Police, he was falsely implicated in this case. 4. Now this Court is called upon to verify the legality, propriety and correctness of the decision taken by the appellate court. 5. Heard learned counsel for the revision petitioner and the learned Public Prosecutor. 6. On going through the appeal judgment, it could be seen that the grounds urged in this revision were all taken up in the appeal also, but answered against him. 7. PW5 Circle Inspector of Police, Ernakulam South Police Station, conducted search on the body of the revision petitioner, in the presence of PW1-the Tahsildar cum Executive Magistrate. The revision petitioner would contend that, there is failure on the part of PW5 to Crl.R.P No.241 of 2016 5 report the information received in writing, to the superior officer, and so there is violation of Section 42 of the NDPS Act. He is relying on the decision **Rajamma and another v. State of Kerala [2001 (1) KLJ 282]** which says that, Section 42(2) is a mandatory provision and the violation thereof entitles the accused to get an acquittal. 8. The appellate court, on analysing Sections 42 and 43 of the NDPS Act, rightly found that, Section 42(2) is applicable only when the search is to be conducted in any building, conveyance or enclosed place. Section 43 of the NDPS Act applies in the case on hand, as the arrest and seizure was from a public place. The testimony of the prosecution witnesses amply proved that the arrest and seizure of the revision petitioner was from a public place. 9. The decision **State of Haryana v. Jarnail Singh** reported in **[(2004) 5 SCC 188]** also will come to the aid of prosecution that when the search is made in a public place, provisions under Section 43 of the NDPS Act is applicable. So, Section 42(2) has no application, as rightly found by the appellate court. So, the contention of the revision petitioner in that regard is not tenable. 10. Another contention of the revision petitioner is that, PW5 did not inform him about his right to be searched in the presence of a Crl.R.P No.241 of 2016 6 Gazetted Officer or a Magistrate, and hence there occurred violation of Section 50 of the NDPS Act. Of course, it is a valuable right available to a suspect to ensure fairness and to prove his innocence. PW5 categorically stated that, he informed the suspected persons of their right to be searched in the presence of a Gazetted Officer or a Magistrate, and on their request, he procured the presence of PW1. Learned counsel for the revision petitioner contended that, no materials are available on record to show that, such an option was given to the revision petitioner. But, the testimony of PW1 clearly shows that, PW5 conducted search on the body of the revision petitioner in his presence only. So, though the information passed to the revision petitioner about his right to be searched in the presence of a Gazetted Officer/Magistrate is not reduced into writing, there is clear evidence to show that, such an information was given to him and he opted his body to be searched in the presence of a Gazetted Officer and accordingly, PW1 was summoned to the scene of occurrence, and in his presence, search was conducted. ## 11. In **Marshal v. State of Kerala [2021 KHC 770]** , this Court held that ‘ _the purpose of S.50 of the Act is to provide an added protection to the persons who are accused of the offences under NDPS_ Crl.R.P No.241 of 2016 7 _Act, which contains very stringent provisions. The maximum protection that can be availed by a person accused of the said offence, as far as the body search is concerned, is to get the search done in the presence of a Gazetted Officer or Magistrate. In order to ensure proper compliance of the aforesaid condition, it is stipulated that the existence of that right should be intimated to the accused before conducting the search. This is insisted upon through various judicial pronouncements of the Hon'ble Supreme Court and the High Courts. This is intended to provide a reasonable opportunity to all the persons accused of the offences punishable under NDPS Act, to avail the said protection and no one should be denied of the said protection because of his lack of awareness of existence of such right. Even if the concerned person is informed of his right and he opts for exercising it, the ultimate step that can be taken by the officer concerned, is to ensure the presence of a Gazetted Officer_ ’. 12. In the case on hand, search was conducted in the presence of a Gazetted Officer, though the information given to the revision petitioner was not reduced into writing. Moreover, nothing could be gathered from Section 50 of the NDPS Act that, the suspected persons should be informed in writing of their right to be searched in the Crl.R.P No.241 of 2016 8 presence of a Gazetted Officer/Magistrate. The ultimate object of Section 50 is to conduct the body search in presence of a Gazetted Officer. Since that is being done, no prejudice is caused for want of written intimation. So much so, it cannot be said that, there was violation of Section 50 of the NDPS Act. 13. The next allegation is that there was non compliance of Section 57 of the NDPS Act. Going by that section, within 48 hours of arrest or seizure, the person making such arrest or seizure has to give full report of its particulars to his immediate superior. True that, copy of such a report given to the superior officials will not find a place among prosecution records. But, Ext.P2 FIR says that, PW5 had forwarded a copy of the mahazar along with copy of FIR to the court as well as to his superior officer. The FIR and the seizure mahazar give full details regarding the arrest and seizure of the contraband article from the revision petitioner. So, the appellate court found that, the FIR itself shows compliance of Section 57 of the NDPS Act. Moreover, in **State of Punjab v. Baldev Singh [(1999) 6 SCC 172]** , the Apex Court held that, non compliance of Section 57 will not vitiate trial. So, that contention of the revision petitioner, also is liable to be turned down. Crl.R.P No.241 of 2016 9 14. The allegation of false implication put forth by the revision petitioner, is without any materials to substantiate. According to him, he went to the Police Station along with his friend and due to a wordy altercation with the Circle Inspector of Police, a false case was registered against him. But, the testimony of prosecution witnesses and recovery of the contraband article from the body of the revision petitioner cannot be brushed aside, with the unsubstantiated story of false implication. The prosecution succeeded in proving its case beyond reasonable doubt, and hence the dismissal of the appeal by the appellate court upholding the conviction, is not liable to be interfered with. 15. Now coming to the question of sentence, the revision petitioner was sentenced to undergo rigorous imprisonment for three months and fine of Rs.5,000/-. Learned counsel for the revision petitioner would point out that, the contraband possessed by the revision petitioner was of small quantity and that is why he was charged under Section 22(a) of the NDPS Act. Going by that section, when there is contravention in relation to psychotropic substance involving small quantity, punishment is rigorous imprisonment for a term which may extend to one year or with fine which may extend to Crl.R.P No.241 of 2016 10 Rs.10,000/- or with both. So, that offence is even punishable with fine only and so, he prayed for leniency. 16. Learned counsel for the revision petitioner submitted that, the revision petitioner is a first offender and he has not committed any other offence till this time. Prosecution also has no case that, the revision petitioner is involved in any other crime except this crime. Moreover, learned counsel for the revision petitioner would submit that, now the revision petitioner is working as PRO in a reputed hospital in Ernakulam and if he is sent to jail, it may ruin his future as well as of his family. 17. Taking into account all these factual situations, this Court is inclined to modify the sentence into imprisonment till rising of court and fine of Rs.10,000/- and in default to undergo simple imprisonment for one month. 18. In the result, the revision petition is allowed in part, upholding the conviction under Section 22(a) of the NDPS Act and modifying the sentence into imprisonment till rising of court and fine of Rs.10,000/- and in default to undergo simple imprisonment for one month. The revision petitioner has to appear before the trial court on Crl.R.P No.241 of 2016 11 15.11.2023 to receive the sentence and to remit the fine, and if he fails to do so, the trial court has to execute the sentence by issuing arrest warrant against him. The case records shall be transmitted to the lower court forthwith, for facilitating execution of sentence, without delay. Sd/- **SOPHY THOMAS JUDGE** smp