K.A. Chandran v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **MONDAY, THE 12TH DAY OF FEBRUARY 2018 / 23RD MAGHA, 1939** **CRL.A.No. 746 of 2004** **AGAINST THE ORDER/JUDGMENT IN SC 187/2003 of SPECIAL COURT (NDPS ACT CASES), VADAKARA DATED 07-05-2004** **APPELLANT(S)/ACCUSED NO.1** **K.A.CHANDRAN, S/O.AYYAPPAN, KOZHIVELIL HOUSE, CHETTAPADAM, PULPALLY,, WAYANAD DISTRICT.** **BY ADV.SRI.SUNNY MATHEW** ## **RESPONDENT(S)/COMPLAINANT:** **STATE OF KERALA THROUGH THE CIRCLE INSPECTOR OF POLICE, KASABA POLICE STATION,, KOZHIKODE, REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA,ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. D. CHANDRASENAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12-02-2018, ALONG WITH CRL.A.849/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SHG/** ## **K.P. JYOTHINDRANATH, J.** **- - - - - - - - - - - - - - - - - - - - - - - Crl.A.Nos.746 & 849 of 2004 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12[th] day of February, 2018** ## **J U D G M E N T** Both these criminal appeals are filed against the judgment of conviction and sentence in SC 187/2003 on the files of the Special Court (NDPS Act Cases) Vadakara. Crl.A. 746/2004 is filed by the 1st accused whereas Crl.A 849/04 is filed by the 2nd accused. 2. The facts necessary for consideration of this appeal is as follows: As directed by the Assistant Commissioner of Police, Kozhikode South, the Circle Inspector of Police, Kasaba police station along with an Additional Sub Inspector of Police searched the Sun Diamond Lodge and during the course of search, they searched a room viz Shalimar in the first floor of the said lodge which was seen bolted from inside. On knocking the door it was opened and on search it 2 Crl.A.Nos.746 & 849 of 2004 was found that the appellants herein were present therein and it is also found that a plastic container containing 1 kg 290 gms of ganja. Thereafter body search of the appellants herein was also conducted and from the body of accused No.1, 18 gms of ganja whereas from the body of A2, 12 gms of ganja were found. The ganja seized and it was sealed, samples were lifted and crime was registered and after investigation charge was filed. 3. The main argument advanced before this court is in respect of statutory requirements under Sections 42 and 50 of the NDPS Act. 4. I heard the learned Public Prosecutor, who submitted before this court that apparently it was a search as per the directions of the higher officials and accidentally the ganja was seen detected by them. Thus non-compliance cannot be fatal. 5. The evidence in this case is as follows: PW1 was the detecting officer who deposed before the court that he was the Additional Sub Inspector of Kasaba Crl.A.Nos.746 & 849 of 2004 3 Police station during the relevant point of time. He further deposed that on 3.11.2002, as per the direction of the C.I. of Kasaba station, he went along with him with police party and conducted raid in lodges within the limits of Kasaba police station and they also went to one lodge viz., Sun Diamond Lodge. During the said search a room namely Shalimar on the first floor of the said lodge was also searched. His evidence is that when the police party knocked at the door, it was opened. When they entered inside, two persons were seen therein. The appellants herein were identified by the witness during the trial and they also found ganja on the cot in the room. 6. Thereafter, the C.I. informed the appellants herein that they are intending to search their body and further asked the accused that whether the presence of a magistrate or a gazetted officer is wanted. The accused persons informed that such a presence is not required and the C.I. can examine himself. Then the C.I gave notice and obtained their signature. Ext.P1 is the consent letter. In the 4 Crl.A.Nos.746 & 849 of 2004 search, apart from the contraband, mobile phones, wrist watches were found 18 gms of ganja was seen on the body of accused No.1 and 12 gms of ganja was seen on the body of accused No.2. The ganja seen were seized. Samples were also lifted and articles were identified by this witnesses. 7. PW2 is the manager of the lodge who was not present at the time of search. PW3 is the room-boy attached to the lodge. He deposed that while the police party searched the appellants herein, he was present there. He further deposed that ganja was seen in a plastic cover on the cot. His further evidence is that he had not witnessed the seizure of ganja from the body search of the appellants. PW4 is the C.I. of Police. He deposed that as per the direction of the Assistant Commissioner, he conducted search in the lodges. During the course of the said search, they knocked the room viz. Shalimar and entered into the room and ganja was found on the cot and he also identified the accused. His intention to conduct the body search was 5 Crl.A.Nos.746 & 849 of 2004 informed and enquired whether the presence of a magistrate or a gazetted officer is needed. The accused told him that such a presence is not needed and he can search the body. As such, notice was given and a consent letter was obtained and on such a search, from the body of accused No.1, 18 gms of ganja and from the body of accused No.2, 12 gms of ganja were seized. The contraband so seized were sealed, samples were lifted. He further deposed that after reaching at the police station, a case was registered. Ext.P3 is the FIR in that regard. The arrest memo is marked as Ext.P4. He further deposed that a detailed report was prepared and was sent to the Assistant Commissioner and the report is marked as Ext.P6. On the next day, the contraband was produced before the Judicial First Class Magistrate Court -III, Kozhikode. PW5 is the police officer, who conducted the investigation and filed the charge. 8. In this case, admittedly the search was conducted as per the direction of the Assistant Commissioner. When a 6 Crl.A.Nos.746 & 849 of 2004 search is conducted the compliance of Section 165 of Cr.P.C. is mandatory. There is no evidence before this court to show that what prompted the Assistant Commissioner to direct PWs 1 and 4 to conduct search in the lodges. The Assistant Commissioner was not examined in this case. If the search was under the provisions of any other law or in connection with any crime it should be brought before the court by legal evidence. This aspect is very important as the case of the prosecution is that the detection was an accidental one. 9. It is evident from the evidence of PW4 that the search was conducted as per the direction of the Assistant Commissioner. Surely the information received from the Commissioner is not before the court. Section 42 of the NDPS Act states as follows: **Section 42: Power of entry, search, seizure and arrest without warrant or authorization.-** (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer Crl.A.Nos.746 & 849 of 2004 7 (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to belief from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,- (a) Enter into and search any such building, conveyance or place; (b) In case of resistance, break open any door and remove any obstacle to such entry; (c) Seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) Detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed Crl.A.Nos.746 & 849 of 2004 8 place at any time between sunset and sunrise after recording the grounds of his belief. (2) 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. 10. It can be seen that, if a closed building has to be searched there should be compliance of this Section. It can be seen that search could be conducted without warrant. But at the very same time, the reason should be stated. Only because there is a direction from the superior officer to conduct the search, a junior officer will not be entitled to violate Sections 165 of Cr.P.C. or 42 of the NDPS Act. It is to be remembered that here admittedly they were entered into a closed room. Surely, it can be said that the detection of the crime without compliance of the provisions regarding search will not vitiate the proceedings. But a strict appreciation is necessary. If this view is adopted in this case, the next aspect is regarding the body search. There are two aspects; one is that, it is alleged that 1.290 kg ganja was found on the cot. Thereafter a body search was 9 Crl.A.Nos.746 & 849 of 2004 conducted. Regarding the same, the evidence of PW4 is that they suspected the presence of ganja in the body of the accused. Then compliance of Section 50 of the NDPS Act is mandatory. 11. Now let us examine Ext.P1 consent letter, which reads that : ÈßB{áæ¿ èµÕÖ¢ µÞÃæMG µFÞÕí ÌLÕTßæÜ¿áAáKÄßÈí μßØíç¿xßæaçÏÞ Îxí ·ØxÁí ©çÆcÞ·ØíÅzÞøáç¿çÏÞ ØÞKßÇc¢ ¦ÕÖcæM¿áÕÞX ÈßBZAí ÈßÏÉøÎÞÏß ¥ÕµÞÖÎáIí ¥dɵÞø¢ ÕÜïÕøáç¿ÏᢠØÞKßic¢ ¨ ØÎÏ¢ ÈßBZAí ¦ÕÖcÎáçIÞ? The answer to this question was that **“** ØÞV ÄæK ÉøßçÖÞÇߺîÞW ÎÄß .” and in Ext.P1, first appellant signed and similarly the 2[nd] accused also wrote that “ ØÞV ÄæK ÉøßçÖÞÇߺîÞW ÎÄß .” and he also signed. What comes out is that from the wording itself it can be seen that ganja was already detected. It may not be in respect of the ganja seen on the cot. If the ganja was seen and seized earlier, a subsequent seizure is not necessary. Ext.P1 also shows that the ganja was already detected. Now, in this regard the 10 Crl.A.Nos.746 & 849 of 2004 decision of the Hon'ble Apex Court in **State of Rajasthan v. Parmanand & Anr [2014 KHC 4138]** is relevant. In paragraph 12 it was held that: "Thus if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched Section 50 of the NDPS Act will have application. In this case, respondent No.1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No.2 Surajmal was also conducted. Therefore, in light of the judgments of this court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application”. 12. In this case, the entry in the room was without warrant. The reason for non-obtaining warrant and what was the information received was not recorded. If it was not a search under Section 42 of the NDPS Act, then also there should be a search memorandum under Section 165 of 11 Crl.A.Nos.746 & 849 of 2004 Cr.P.C. In a casual way, a search is conducted and further the apparent action shown to be in compliance of Section 50 are also not inspiring confidence. As already mentioned, in Ext.P1 it is stated that ganja was seen in the possession of accused. In that regard the question to be considered is that to seize the same whether the presence of a magistrate or a gazetted officer is necessary. It is not as contemplated under Section 50 of the NDPS ACT. In the decision in Parmanand's case cited supra, it is categorically stated in paragraph 14 that the communication of the right has to be clear, unambiguous and individual. Then what comes out is that when a joint communication is given, it cannot be considered as an individual communication. When a joint communication is given by Ext.P1 and when Ext.P1 refers about the detection already made and when the information received by the officer is not recorded, even if the information received is from the Assistant Commissioner, it can be only held that the appellants are entitled for benefit of doubt in the light of non-compliance of Section 50 Crl.A.Nos.746 & 849 of 2004 **==> picture [14 x 8] intentionally omitted <==** of the Act. At this juncture, it is also relevant to note that the Commissioner who gave direction to conduct the search was not examined in this case. 13. Only when possession is proved by cogent and reliable evidence, then only the presumption of culpability when Section 54 of NDPS Act will come into play. Thus, considering the totality of the case, the appellants are entitled for benefit of doubt. Hence, both these appeals are allowed by setting aside the conviction and sentence passed against the appellants. The bail bonds stand cancelled. Sd/- **K.P. JYOTHINDRANATH** **JUDGE** shg/