Jomon Kurian v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.UBAID** **MONDAY, THE 10TH DAY OF DECEMBER 2018/19TH AGRAHAYANA, 1940** **CRL.A.No.220 of 2015** **JUDGMENT IN SC 26/2013 of SPECIAL COURT (NDPS ACT CASES), THODUPUZHA DATED 29-12-2014 C.R.No.5/2012 OF EXCISE CIRCLE OFFICE, KOTTAYAM** **------------------** **- APPELLANT/ACCUSED No.1 :** **JOMON KURIAN, AGED 29 YEARS, S/O.KURIAN GEORGE, THANNITHADATHIL HOUSE, ATHIRAMPUZHA KARA, AMALAGIRI BHAGAM, ATHIRAMPUZHA VILLAGE, KOTTAYAM TALUK.** **BY ADVS.SRI.SAIBY JOSE KIDANGOOR SRI.ARUN SAMUEL** **- RESPONDENT/COMPLAINANT :** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI.SANTHOSH PETER – PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.No.220/2015 -: 2 :- ## **JUDGMENT** The appellant herein is the sole accused in S.C. (NDPS) No.26/2013 of the Court of Session, Thodupuzha. He and two others faced prosecution before the learned Special Judge for NDPS Act cases, Thodupuzha under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act (for short, 'the NDPS Act') on the allegation that at about 9.45 p.m. on 19.10.2012, they were found possessing huge quantity of Narcotic Drugs consisting of 157 ampoules of Buprenorphine injection (2 ml each), and 9 ampoules of Phenergan. The three accused were found near a scooter; the first accused being the rider, and the second accused being the pillion rider. The other was just seen talking to the accused Nos.1 and 2. The offence was detected by the Excise Circle Inspector of the Kottayam Excise Circle. He arrested the 1[st] accused on the spot, but the other two ran off and escaped. On search of the CRL.A.No.220/2015 -: 3 :- body of the 1[st] accused, the Circle Inspector of Excise seized the contraband articles. On the basis of the arrest and seizure, he registered the crime and occurrence report, he himself conducted investigation, and he submitted final report also in Court. 2. The three accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against them. The prosecution examined six witnesses, and proved Exts.P1 to P14 documents in the trial court. The MO1 to MO6 properties were also identified during trial. All the accused denied the incriminating circumstances, when examined under Section 313 Cr.P.C. The accused did not adduce any evidence in defence. On an appreciation of the evidence, the trial court found the accused Nos.2 and 3 not guilty of the offence, and accordingly, they were acquitted. The 1[st] accused, from whose possession the contraband articles were allegedly seized, was found guilty by the trial court. On CRL.A.No.220/2015 -: 4 :- conviction, he was sentenced to undergo rigorous imprisonment for ten years, and to pay a fine of Rs.2,00,000/- under Section 22(c) of the NDPS Act. Aggrieved by the judgment of conviction dated 29.12.2014, the accused has come up in appeal. It is submitted that he has been undergoing sentence since the date of detection. 3. On hearing both sides, and on a perusal of the materials, I find two very serious legal infirmities vitiating the whole prosecution in this case, and on this ground itself, the accused is entitled for acquittal. When the legal aspects and infirmities are definite and certain, and the infractions found by the court will suffice for an acquittal, the factual aspects need not be probed into. PW1 is the Excise Circle Inspector, who detected the offence. He arrested the accused, seized the contraband articles, registered the crime and occurrence report, conducted investigation, and he submitted final report also in Court. CRL.A.No.220/2015 -: 5 :- 4. The learned counsel cited the very recent decision of the Hon'ble Supreme Court in **Mohan Lal** **v. The State of Punjab** [2018(3) KLT 852]. As regards violation of Section 50 of the NDPS Act, the position stands settled by the various decisions of the Hon'ble Supreme Court. 5. The mandate of Section 50 of the NDPS Act is that when search of the body of an accused suspected possessing any Narcotic Drug or Psychotropic Substance, is felt necessary by any Officer, the accused shall be informed of his right to be searched in the presence of a Gazetted Officer or a Magistrate. If the accused demands, or if he requires the presence of such an Officer or a Magistrate, his body can be searched only in the presence of such an Officer or Magistrate. Of course, in certain cases, the accused may waived his right and consent to be searched by the detecting officer. In such cases, the detecting officer is bound to prove the waiver made by the accused to the CRL.A.No.220/2015 -: 6 :- satisfaction of the court, and he will also have to convince the court satisfactorily that he had informed the accused of his legal right under Section 50 of the NDPS Act. 6. In this case, the curious and strange aspect is that the accused was told his right under Section 50 of the NDPS Act by PW1 after his body search, or after the contraband articles were seized by him. Of course, in the detection mahazar, what he stated is that he conducted search of the body of the accused, and seized the contraband articles after he was informed of his right under Section 50 of the NDPS Act. But in evidence, his case is quite contrary that he first searched the body of the accused, and seized the contraband articles, and only thereafter, he told the accused that he has a right to be searched in the presence of a Gazetted Officer or a Magistrate. This is blatant violation of Section 50 of the NDPS Act. In **Vijaysinh Chandubha Jadeja v.** **State of Gujarat** [2011(1) SCC 609], a larger Bench CRL.A.No.220/2015 -: 7 :- of the Hon'ble Supreme Court discussed the importance of Section 50 of the NDPS Act, and settled the legal position that in a case where the court is satisfied of non-compliance or violation of Section 50 of the NDPS Act, no value can be attached to the seizure made by the detecting officer. 7. In **Gurjant Singh @ Janta** v. **State of Punjab** [2013 KHC 4854 = 2014 (13) SCC 603], the Hon'ble Supreme Court again considered the importance of Section 50 of the NDPS Act, and the consequence of violation of Section 50 of the NDPS Act. In that case also, the Hon'ble Supreme Court held that search and seizure made without complying with the requirements of Section 50 of the NDPS Act will be unacceptable, and no value can be attached to it in a trial. I need not discuss the various decisions on this point because the position is well settled by the Hon'ble Supreme Court that compliance of Section 50 of the NDPS Act cannot be an empty formality, and it must the strictly complied with. CRL.A.No.220/2015 -: 8 :- In this case, strangely enough the detecting officer told the accused of his right under Section 50 of the NDPS Act after he conducted the body search of the accused, and seized the contraband articles. There is no meaning in informing the accused of his legal right, after conducting search and seizure. When asked about this in cross examination also, he reiterated and affirmed that the accused was informed of his right under Section 50 of the NDPS Act after his body was searched and the articles were seized. This is a clear illegality vitiating the whole prosecution. 8. Yet another aspect is that everything in this case was done by PW1. He detected the offence, and he also conducted investigation. Of course, there is nothing wrong in the complainant himself filing a complaint, but a complainant cannot conduct investigation. This is what the Hon'ble Supreme Court recently settled in **Mohanlal's case.** CRL.A.No.220/2015 -: 9 :- 9. On the two important legal grounds discussed above, I find that, the accused is entitled for acquittal. It is quite unfortunate that a case involving commercial quantity of Narcotic Drug was spoiled by an Excise Circle Inspector. Though his mahazar shows compliance of Section 50 of the NDPS Act, he gave quite contradictory evidence in court proving clear and blatant violation of Section 50 of the NDPS Act. He cannot have any excuse for this. 10. In the above circumstances, where more than one legal grounds are there for the benefit of the accused, I find it not necessary to go to the factual aspects. The whole prosecution stands vitiated by the important illegalities discussed above. In the result, the appeal is allowed. The appellant is found not guilty of the offence under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the NDPS Act'), and he is acquitted of the said offence in appeal CRL.A.No.220/2015 -: 10 :- under Section 386(b)(i) Cr.P.C. Accordingly, the conviction and sentence against him in S.C.No.26/2013 of the Court of Special Judge for the NDPS Act cases, Thodupuzha will stand set aside, and the accused will stand released from prosecution. The accused will be immediately released from custody, if he is not required in any other case. Forward a copy of this judgment to the Superintendent of the Central Prison, Viyyur, where the appellant is confined as a convict. **Sd/P.UBAID JUDGE** _//TRUE COPY//_ _P.A. TO JUDGE_ rkj/Jvt/12.12.2018