K. Thankam v. The Sub Inspector of Police, Nadakkavu Police Station, Kozhikode and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **TUESDAY, THE 19TH DAY OF DECEMBER 2017/28TH AGRAHAYANA, 1939** ## **CRL.A.No. 2007 of 2004 ( )** ## **---------------------------** **AGAINST THE ORDER/JUDGMENT IN SC 4/2004 of SPECIAL COURT (NDPS ACT CASES) VADAKARA DATED 29.11.2004** ## **APPELLANT(S)/ACCUSED::** **---------------------** **K.THANKAM, W/O. RAGHAVAN, HOUSE NO.1/2706, BANGLADESH COLONY, WEST HILL, KOZHIKODE.** ## **BY ADV. SRI.T.G.RAJENDRAN** ## **RESPONDENT(S)/COMPLAINANT & STATE::** **-----------------------------------** ## **1. THE SUB INSPECTOR OF POLICE, NADAKKAVU POLICE STATION, KOZHIKODE.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. D. CHANDRASENAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SHG/** ## **K.P. JYOTHINDRANATH, J.** **- - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.2007 of 2004** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 19[th] day of December, 2017** ## **J U D G M E N T** The challenge is against the judgment of conviction and sentence passed in S.C. 4/2004 on the files of the Special Court (NDPS Act Cases), Vadakara. The conviction is under Section 21(b) of N.D.P.S. Act. The appellant was sentenced to undergo rigorous imprisonment for 4 years and to pay a fine of Rs.25,000/-, in default of payment of fine, to undergo rigorous imprisonment for one year. 2. The facts necessary for consideration of this appeal is as follows: On 16.10.2002 at about 11.45 p.m. the appellant herein was found in possession of 53.5 gms of brown sugar which was meant for sale and thereby committed the offence. The detection of the offence was by an Assistant Commissioner of Police, Narcotic Cell, Kozhikode city. It is the further case that on the basis of a reliable information, he proceeded to the spot and arrested the accused, seized the brown sugar as per a mahazar and thereafter crime Crl.A.No.2007 of 2004 2 registered. The accused and the seized brown sugar were produced before the court. After investigation, final report was filed. Prosecution altogether examined 7 witnesses and Exts.P1 to P11 were marked. On the side of the defence, DW1 was examined. It can be further seen that MOs 1 to 4 were also identified. 3. When this appeal came up for hearing, the learned counsel appearing for the appellant submitted before this court that here is a case where there was utter violation of the mandatory provisions of the NDPS Act. It is the further submission made before this court that the definite case of the prosecution is that a secret information was received by the detecting officer while he was in the office. There is nothing to show that the said information was recorded and thereafter he informed his superior officers as contemplated under Section 42 of the NDPS Act. It is also the submission that here is a case where the information was received while he was in the office. If that is so, it is not a case where information received while a Crl.A.No.2007 of 2004 3 police officer was moving, he will be having the facility to record the same and inform his superior officers. A copy of such an information in writing should have been informed to his superior officer as required under law. The only case is that, while giving evidence, he deposed that he had informed the same. But Ext.P5 will show that such an information neither recorded in writing nor forwarded to the officer. It is only stated therein as 'already informed'. Then original information furnished to the superior officer is missing in this case. When such an information is missing, it can be only termed as a total violation of the provision under Section 42 of the NDPS Act. When there is total violation, a case built upon the so-called recovery will not be a basis for conviction. 4. The next point argued by the learned counsel is that as per Section 50 of the NDPS Act while a body search is conducted, the presence of a gazetted officer or a magistrate should be therein. In this case an illiterate woman was not enlightened regarding her right and was Crl.A.No.2007 of 2004 4 searched in public allegedly by a woman police constable. When there is no compliance of Section 50 of the NDPS Act, and allegedly recovered the material it cannot be made use of against the appellant herein. Thus, when there is no compliance of the requirement under Section 42 of the NDPS Act as well as under Section 50 of the Act, then the appellant is entitled for an acquittal. 5. I heard the learned Public Prosecutor who submitted before this court that here is a case where the detection was from a public place. It is to be remembered that any delay to proceed with detection will defeat the purpose itself. It is an information that the accused woman reached at a particular area with brown sugar. If a delay is caused by a detailed report, then she may not be therein to be detected the offence. Thus, in this case, as evident from Ext.P5, an information was passed as required under Section 42 and further it can be seen that a detailed report was sent immediately after detection of the crime. Thus there is compliance of the requirement under Section 42 of Crl.A.No.2007 of 2004 5 the Act. Learned Public Prosecutor further submitted that the detecting officer was none other than a gazetted officer and further it was categorically stated in the seizure mahazar that the right of the accused was told to her and thereafter alone when she said that the presence of such a gazetted officer or a magistrate is not required, she was searched by the woman police constable in the presence and supervision of the detecting officer. When there is substantial compliance of the provision as stated above, an interference by this court is not warranted. 6. After hearing the counsel, I perused the evidence and records in this case. The crime was registered on 16.10.2002 at 11.25 a.m whereas the time of offence was at 10.30 a.m. As per the F.I. Statement, it can be seen that while he was doing his official duty as Assistant Police Commissioner, Narcotic Cell, Kozhikode City, got an information to the effect that in front of the canteen of the Industrial Estate at West Hill, a stout woman wearing rose saree is reached therein for the sale of brown sugar. He 6 Crl.A.No.2007 of 2004 informed his superior officer i.e. District Police Superintendent, Kozhikode Rural who was in charge of the City Police Commissioner, Kozhikode recordically and thereon proceeded and found a woman and she was made known that they were intending to search the body and she is, in accordance with law, entitled for the presence of a gazetted officer or a magistrate and then she answered that it is not necessary and the officer himself can search her. When it was requested her to give her consent in writing, she said that the detecting officer can write the same and she will sign the same. Accordingly, a signed statement was given. When she was searched by a Woman Police Constable on her left hand in a polythene cover brown sugar was seen in 3 packets which was seized as per a mahazar. Sample was lifted and a crime was registered on this behalf. It can be further seen that a mahazar was also prepared at the time of seizure which was marked before the court as Ext.P1. An attestor to the seizure was examined as PW1. He turned hostile. But he admitted his Crl.A.No.2007 of 2004 7 signature therein. He also admitted the signature on the sample packets. 7. PW2 is the detecting officer. He deposed that on 16.10.2002, he was Assistant Police Commissioner attached to Narcotic Cell, Kozhikode City. While he was doing his office duty, at about 10.30 hours, he got an information that in front of the industrial estate, on the road, a woman was conducting sale of brown sugar. His further evidence is that he had informed the rural S.I. who was his superior officer and proceeded towards the spot accompanied by the Sub Inspector of Police, Nadakkavu station as well as 2 woman police constables from there. He further deposed that he saw the accused herein, who is in the dock and there was a polythene cover in her left hand. She tried to go to the canteen of the Industrial Estate and she was intercepted and his identity was revealed to her and further informed her that body search has to be conducted and further informed her that she can demand for the presence of a gazetted officer or a magistrate. She told him that the Crl.A.No.2007 of 2004 8 detecting officer himself can search and it was written and she signed it and given. The said consent letter was marked as Ext.P3. In the presence of the witnesses, body search was conducted. When the polythene cover was examined, it was found that it contained 55.9 gm. brown sugar. It was in 3 packets. When the brown sugar alone was taken and weighed it was 53.5 gms. It is the further evidence that 1 gm each was taken as sample and sealed and labelled marking as S1 and S2. Witness further deposed that it was sealed and packed and the balance contraband was identified as MO3 before the court. The cover was marked as MO4. The seizure mahazar was marked as Ext.P1 and he further deposed that he registered the crime as crime No.471/2002 in Nadakkavu police station. The FIR was marked as Ext.P4. The report given to the Dy.S.P. was marked as Ext.P5. The property list through which the articles were produced before the court was marked as Ext.P6. During cross examination, a suggestion was made to the witness to the effect that, on the western side of the Crl.A.No.2007 of 2004 9 alleged place, there was a colony and the appellant herein was a resident of therein. The detecting officer expressed his ignorance and further added that the address given by the accused was that of Bangladesh colony and he further deposed that after getting information, he reached therein within about 1 hour. He further deposed that he is not an SHO of Nadakkavu Police Station and denied the suggestion that he is not entitled to register Ext.P4 FIR therein. He denied a suggestion that before proceeding for seizure, no report was given to the Superintendent of Police. He added that report under Section 42 was prepared from his office and forwarded. A further suggestion was made that she was not made aware of Section 50 of the NDPS Act. The said suggestion was also denied. PW3 is a woman police constable attached to Nadakkavu police station. She supported the prosecution version and deposed that she had gone along with PW2. She further deposed that PW2 told her that she has to search the accused and further told the accused that she can require for the presence of a Crl.A.No.2007 of 2004 10 magistrate or a gazetted officer. Then the accused told PW2 that he can search her and gave the witness signed consent. Her further evidence is that in the presence of witnesses, polythene cover in her hand was opened by the accused herself. When it was opened 3 plastic covers were seen which contained brown sugar. It was weighing 55.9 gms and the brown sugar was seized as per a mahazar and sample was also lifted. PW4 is the Sub Inspector of Police, Nadakkavu police station who also joined the search party. He also supported the prosecution case. PW5 is the Village Assistant who prepared the plan which was marked as Ext.P8. PW6 is an independent witness who signed in the mahazar which was marked as Ext.P9. PW7 is the person who conducted the investigation and prepared Ext.P9 mahazar. The analysis report was marked as Ext.P11. DW1 was seen examined to show that the appellant herein was actually arrested from her house. 8. As already discussed, the point to be considered is whether there is violation of Section 42 and Section 50 of Crl.A.No.2007 of 2004 11 the NDPS Act. The main aspect to be considered is that whether the procedure adopted by the prosecution will render the seizure illegal. In this regard the decision of the apex court in **Karnail Singh v. State of Haryana [(2009) 8 SCC 539]** is relevant to be considered. As per paragraph 35 of the said decision, it was concluded by the apex court that “whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment of Section 42 by Act 9 of 2001”. 9. In this case, the detection was on 16.10.2002. Thus it can be seen that, after amendment by Act 9 of 2001 Section 42 (2), it states that “where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior”. In this case Ext.P5 is the report so sent to his superior officer. It is worth mentioning that the report itself is starting that “§Kí 16.10.2002 ÄßÏîÄß 10.30 Crl.A.No.2007 of 2004 12 ÎÃßAí ®ÈßAí µßGßÏ ÕßÕøJßæa ¥¿ßØíÅÞÈJßW ¾ÞX dÌìY ×á·V Éß¿ßAÞX çÉÞÏ ÕßÕø¢ çÈøçJ ¥ùßÏߺîßøáKçÜïÞ.” Thus it can be seen that as per Ext.P5, the definite case of the officer itself is that a communication was given regarding the information and then he was proceeded to seize the brown sugar. 10. One of the main arguments raised by the learned counsel is that the information was not recorded and the same was not communicated to the superior officer. It can be seen that while considering Section 42 of the NDPS Act, by a Constitutional Bench, the development in technology was also taken into consideration. The apex court opined that when there is mobile phone and modern instruments for communication, a substantial compliance alone need be required. In this case, when Ext.P5 is therein, and as per the mahazar it was stated that what was the information received and earlier there was a communication given regarding the information then it can be only said that there is compliance of the requirement under Section 42 (1) of 13 Crl.A.No.2007 of 2004 NDPS Act. As already highlighted, the Constitutional Bench held by the Hon'ble Apex Court categorically held that “whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. While total non-compliance with requirements of Sections 42 (1) and (2) is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42.” When there is substantial compliance no prejudice can be said to have caused to the appellant herein. 11. The learned counsel also brought to the attention of this court a decision of the Hon'ble Apex Court in **State of Rajasthan v. Jagraj Singh [(2016) 11 SCC 687]** . The Hon'ble Apex Court considered the dictum laid down by the constitutional bench in the said decision. In that decision, the apex court was dealing with a seizure on 9.8.1998. Thus, it can be seen that, that case was prior to the amendment brought to Section 42 of the NDPS Act. It was a case where there was total non-compliance of Section Crl.A.No.2007 of 2004 14 42 (1). The case in hand is not a case like that. Here, the case is after the amendment and further more, there was substantial compliance. Under such circumstances, there is no merit in the argument of the learned counsel in this regard. It is to be remembered that here is a case where the search was conducted at a public place and not at a building. 12. The next point raised by the learned counsel is in respect of Section 50 of the NDPS Act. In this regard here is a case where a written consent was obtained from the person searched by the officer to the effect that he can be searched The search was conducted by a gazetted officer. Under such circumstances, it cannot be said that there is substance in the argument advanced by the learned counsel for the appellant. 13. The counsel also raised a contention that as per Section 50 (4) no female shall be searched by anyone except a female. In this case, PW3 was the person who searched the body, who is none other than a woman police constable Crl.A.No.2007 of 2004 15 and further it can be seen that it was actually not a body search but a polythene cover which was held by the appellant in her left hand which was asked to be opened by her and brown sugar was seen inside it. 14. The only remaining question is that of sentence. The conviction was in the year 2004. At the time of seizure, she was aged 53 years and now she will be a senior citizen aged at least 68 years. Thus, considering the totality of the case but at the same time keeping in mind that the allegation is that she was found in possession of brown sugar, the substantial sentence is modified and reduced as rigorous imprisonment for 2 years and to pay a fine of Rs.25,000/- with default rigorous imprisonment for another period of six months. With the above modification on the side of the sentence, the appeal is partly allowed. Sd/- ## **K.P. JYOTHINDRANATH, JUDGE** //True copy// P.A. TO JUDGE shg/