Karuppuswami v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **FRIDAY, THE 11[TH] DAY OF JUNE 2021 / 21ST JYAISHTA, 1943** ## **CRL.A NO. 455 OF 2019** **AGAINST THE JUDGMENT IN SC 944/2017 OF VI ADDITIONAL SESSIONS COURT,** ## **ERNAKULAM.** ## **APPELLANT/ACCUSED:** **KARUPPUSWAMI, AGED 42 YEARS,** **S/O MARIYAPPAN,** **AMMANKOVILTHERUVU,** **VILAPPANNOOR, MADURA,** **THAMILNADU C NO:4492, CENTRAL PRISON VIYYUR, THRISSUR-10.** **BY ADV P.A.MARTIN ROY** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY** **THE ADDITIONAL PUBLIC PROSECUTOR ERNAKULAM,** **REP. BY C.I OF POLICE, ERNAKULAM,** **TOWN NORTH POLICE STATION.** **BY SR.PP-SRI M.S BREEZ.** **THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON 16.03.2021, THE COURT ON 11.06.2021 DELIVERED THE FOLLOWING:** Crl.A.No.455 of 2019 2 ## **JUDGMENT** This is an appeal preferred under Section 383 read with Section 374 (2) of the Code of Criminal Procedure, hereinafter referred to as the Cr.P.C., challenging the correctness of the judgment of the learned Additional Sessions Court–VI Ernakulam, in S.C.No.944/2017. By the judgment dated 26.11.2018, the appellant, who is the accused in the case, stands convicted for offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act and is sentenced to undergo rigorous imprisonment for five years and also to pay a fine of Rs.25,000/-, in default to undergo rigorous imprisonment for six months. The court also noticed that he had been in judicial custody from 28.07.2017, till the date of convicting him. Thus the court granted him the benefit of Section 428 Cr.P.C also, thereby allowing set off for the period underwent in judicial custody from 28.07.2017 to 26.11.2018. The appellant was arrested on 28.07.2017. He faced Crl.A.No.455 of 2019 3 trial while undergoing judicial custody. Now, he is undergoing sentence. The appeal was sent from the Central Prison, Viyyoor, where he is undergoing imprisonment. As he is in custody, the appeal was taken out of turn and was heard, giving priority. At that time, a State Brief was appointed for him, but later he expressed his intention to appoint his own counsel to argue the appeal. Accordingly, Adv. Sri.P.A.Martin Roy was heard on his behalf. I also heard the learned Senior Public Prosecutor Sri.M.S.Breez. 2. The case had originated on a final report laid by the Circle Inspector of Police, Ernakulam Town North Police Station, alleging offence punishable under Section 20(b)(ii)(B) of the N.D.P.S Act. That was the final report in Crime No.1495/2017 of Town North Police Station. The precise allegation against the appellant is that on 28.07.2017 at about 10 O’ clock he was found near the North Railway Station overbridge carrying 1.300 kg of ganja. On getting reliable information about the presence of the appellant carrying offensive articles, according to the prosecution, the Sub Inspector Crl.A.No.455 of 2019 4 who was examined as PW1 proceeded to place along with police party and, in the presence of independent witnesses, found the appellant standing beneath the overbridge carrying ganja and thereafter, in the presence of independent witnesses and also a Gazetted Officer, the contraband was seized under a mahazar and the crime was registered after arresting the appellant along with the offensive articles. Thereafter, investigation was taken over by the Circle Inspector, who, after conducting detailed investigation and also obtaining chemical examination report from the chemical laboratory and confirming that the contraband is ganja, laid the final report before the Sessions Court, Ernakulam from where the case was made over to the trial court. Trial proceedings had started after serving copies of records to the the appellant. After hearing counsel on both sides, the trial court framed charge alleging offence punishable under Section 20(b) (ii)(B) of the N.D.P.S Act, read over and explained to him and he pleaded not guilty. Thereafter, PWs 1 to 7 were examined on the side of the prosecution. Exts.P1 to P21 were also marked. Materials objects were identified and marked as Crl.A.No.455 of 2019 5 MO1 to MO16. On conclusion of evidence, when examined under Section 313 Cr.P.C, he denied all the incriminating materials. He also filed a statement. In brief, he contended that he is a native of Tamil Nadu, but is residing in Gandhi Nagar in Ernakulam for the last 30 years, that he ekes out his livelihood by picking scrap and also by the sale of it. He used to take drinks in the evening. He happened to be involved in some minor theft cases in the past and also was accused in some summary trial cases. Thus some of the police officials by name Mohan and Bose knew him. Both of them along with PW1 Vibin Das, the Sub Inspector removed him from some other place; they wanted him to convey to them the whereabouts of one Muthu, a criminal. But he was unable to give any information about the said Muthu and thus he was taken to the side of the North overbridge and the contraband was forced on him as if he was carrying ganja. In fact, he has no connection whatsoever with the contraband and he has been falsely implicated. Crl.A.No.455 of 2019 6 3. The learned Additional Sessions Judge found, rightly, that it is not a fit case for acquitting under Section 232 Cr.P.C. Then the appellant was called upon to enter on his evidence in defence. But he had no evidence. Thus after hearing counsel on both sides, the above said conviction and sentences were slapped on him. 4. In the appeal, which was prepared and sent from the Central Prison, various grounds have been incorporated. According to the appellant, the trial court went wrong in convicting the appellant based on the oral testimony of PWs 1 to 7 and the Exts.P1 to P21 documents; there is absolutely no reliable direct evidence to connect him with the contraband, that the court was relying on circumstantial evidence to convict him; therefore, the conviction and sentence imposed are bad. Alternatively he has stated that the sentence imposed on him is highly excessive and is liable to be interfered with. Crl.A.No.455 of 2019 7 5. As noticed earlier, Adv. Krishnan Lal was nominated as the State Brief by this Court. But the appellant had informed his lack of confidence in the said counsel and on his behalf Adv.P.A.Martin Roy argued for him. According to the learned counsel, the trial court erred in placing reliance on the oral testimony of PWs 1 to 7. One ground highlighted by the counsel was that there is inordinate delay in producing the material objects before court. Even though the items were allegedly seized on 28.07.2017, it had reached the court only on 31.07.2017, after three days and this delay has not been properly explained by the prosecution. In this connection he also relied on the decision reported in **Faijas v State of Kerala [2020 KHC 5259].** 6. On the other hand, the learned Public Prosecutor strongly supported the finding. According to him, the police officials as well as independent witnesses have clearly stated that the appellant was found in possession of the contraband, that 1.300 Crl.A.No.455 of 2019 8 kg of ganja was seized from his possession. He could not give satisfactory explanation about its possession and therefore, it is an act attracting the offence punishable under Section 20(b) (ii) (B) of the N.D.P.S Act and therefore he pressed for dismissing the appeal. 7. In the light of the detailed narration in the judgment of the trial court, it is not necessary for this Court to state elaborately the version of the witnesses. However, it is to be stated that PWs 1 to 4 are the witnesses who were available at the place of occurrence. PW1 Vibin Das is the Sub Inspector, who detected the crime. According to him, on 28.07.2017 at about 09.30 a.m while he was attending his works in the police station, he got reliable information about the alleged crime. Thus after sending the Ext.P1 report under Section 42 of the N.D.P.S Act, he along with the party proceeded to the place of occurrence and found the appellant standing beneath the Railway overbridge; seeing the police party he tried to hide himself behind a pillar of Crl.A.No.455 of 2019 9 the bridge. He was found standing there carrying a bag; he was nabbed and asked as to whether, for the purpose of searching his body, needs the presence of a Gazetted Officer. When he answered in the affirmative, a letter was sent to the Rationing Officer, who is a Gazetted Officer; that letter is marked as Ext.P2. On receipt of the Ext.P2 the Rationing Officer also reached the place and in the presence of the Rationing Officer, the body of the appellant was searched. Except a sum of Rs.50/found in the pocket of his shirt, no other offensive article was found hidden in his body. However, the bag carried by him contained ganja which, on weighing by arranging a weighing machine from a nearby shop, was found 1.300 kg. The contraband was taken into possession under the Ext.P3 mahazar; it was sealed in the presence of independent witnesses and then after arresting the appellant from the place he proceeded to the police station and registered the crime. He also gave the Ext.P11 report under Section 57 of the N.D.P.S Act. PWs 2 and 3 are independent occurrence witnesses. They also stated that they Crl.A.No.455 of 2019 10 have signed the Ext.P3 seizure mahazar, they had seen the appellant at the place of occurrence; he was identified before court by both the witnesses. In fact PW2 said that he had seen the Sub Inspector seizing the contraband from the appellant; even though PW3 also gave such a statement, in cross examination, he said that he had reached there at the time when the items were being weighed by the police. Any how, he has admitted his signature found in the seizure mahazar. PW2 has admitted his signatures in Exts.P4 and P8 documents also whereas PW3 has deposed that he has signed Exts.P3, P4, P6, P7, P8 and P9 documents. 8. Similarly, PW4 is the said Rationing Officer who acknowledged the receipt of Ext.P2 letter following which he reached the place of occurrence and gave a statement in support of the prosecution case. He also said that he had seen the appellant at the place, his body was searched in his presence and the contraband was seized from his possession. Crl.A.No.455 of 2019 11 9. PW5 P.K Jayaprakashan is a nearby shop vendor. He was examined to say that the weighing machine was taken from his shop. He gave such a statement before court. PW6 is the Village Officer who proved the Ext.P12 site plan. PW7 is the Circle Inspector who produced the material objects before court, gave the remand report, produced the accused before court, conducted investigation and laid the charge sheet before court. He proved the chemical examination report also which indicates that the material is ganja. Ext.P15 is a certificate issued by the Additional Chief Judicial Magistrate Ernakulam, under Section 52A(3) of the N.D.P.S Act, where the Magistrate has stated that he satisfied that the inventory is as per the seizure documents. Consignments of seized goods related to the case were presented before him and he has certified the correctness of the above inventory. No other ground was urged before me, at the time of final hearing. 10. Then the argument that there is a considerable delay in producing the material object before court can be considered. Crl.A.No.455 of 2019 12 11. Though the items were produced before the court only on 31.07.2017, it was intact. It was sealed at the place of detection itself, as seen in Ext.P3 seizure mahazar. Of course, if the items were not sealed or samples were collected from the place of occurrence itself, the dictum of the decision relied on by the learned counsel would have been applied. But here, the entire items were sealed in the presence of independent witnesses and produced before court in tamper free condition, so that, any possibility of tampering can be ruled out. The packet was opened on 31.07.2017 in the presence of the Magistrate. The representative samples were collected in the presence of the Magistrate and he has certified about the correctness of the same. He has also taken photographs as provided under Section 54 of the N.D.P.S Act and later that was produced before court. From the deposition of PW1 itself it is clear that the items were later opened before the court at the time of trial. Therefore the three days' delay in producing the contraband before court is of no consequence at all. In fact, facts of the decision in **Faijas** ’s case, Crl.A.No.455 of 2019 13 supra, cannot be applied here. There, evidently the material object was seized and samples were drawn from the place of the seizure itself. But here the testimony of PWs 1 to 4 indicate that PW1 the detecting officer seized the material objects and the entire items were packed and sealed, in the presence of independent witnesses at the place of occurrence itself; independent witnesses have stated that they had signed the labels also placed inside the sealed packets. The items were brought before the Additional Chief Judicial Magistrate only on 31.07.2017. But the items remained intact, sealed, and the representative samples were taken in the presence of the learned Magistrate, breaking the seals. That is evident from the Ext.P15 certificate issued by the Magistrate. 12. I have summoned and examined the trial court records. After going through the materials, I do not have any doubt in mind that the trial court is justified in arriving at the conclusion convicting the appellant. The trial court has meticulously Crl.A.No.455 of 2019 14 considered the oral testimony of witnesses and also all material documents and there is absolutely no reason to find fault with the judgment under attack. In fact this is one of the rare cases in which independent witnesses have supported the prosecution case. As indicated earlier, PW1 Vibin Das, Sub Inspector who detected the crime has given a vivid picture about how he happened to go to the place. The fact that the appellant was found standing in suspicious circumstances carrying a bag, beneath the North overbridge, seeing the police party he tried to hide himself from their vision, then he was taken and the bag carried by him was examined in the presence of independent witnesses. By the time a Gazetted Officer was also brought to the place on request of the police and in his presence his body was searched, then the contraband was seized under the Ext.P3 mahazar, after fully satisfying that he was carrying ganja, which is an act attracting offence under the N.D.P.S Act; he was arrested and produced before the superior officer who sent him to Crl.A.No.455 of 2019 15 the court with a remand report and also conducted investigation and formed final opinion against him. 13. The oral testimony of PWs 1 to 4 clearly indicate that the appellant was found standing beneath the North Railway overbridge carrying ganja. Even though Section 50 of the N.D.P.S Act is not applicable in the case, the statement of PW4 who is also an independent witness reinforces the prosecution case. In fact, the statement given by the appellant before court under Section 313 Cr.P.C also in a way suggests that he was arrested from the said place as alleged by the prosecution. But his contention that he was taken into custody from elsewhere and was forcibly taken to the alleged place, such an offensive article was planted on him and a false case was fabricated against him, cannot be swallowed without a pinch of salt. The convincing oral testimony of PWs 1 to 4 clearly support the prosecution case. Even if we ignore the testimony of PW1 the Sub Inspector, there are other incriminating circumstances. His testimony stands Crl.A.No.455 of 2019 16 fully corroborated by the oral testimony of two independent witnesses, PWs 2 and 3 as well as PW4 the Rationing Officer. The defence has no case that these witnesses have any previous acquaintance with the appellant. Even though the appellant said that he was arrested by the police officers by name Mohan and Bose along with PW1, the prosecution has no case that any such officer had been present at the place of occurrence. Secondly, as noticed earlier, the oral testimony of PWs 1 to 4 and also contemporaneous documents like the seizure mahazar, the arrest memo, the inspection memo etc., would clearly indicate that the appellant was arrested from the said place as alleged by the prosecution. 14. After considering the entire materials and documents, I do not find any reason to interfere with the conviction entered against the appellant. It cannot be believed that for the reason that he had some minor cases against him in the past or for not divulging a matter which he was not privy to, he has been falsely Crl.A.No.455 of 2019 17 implicated does not stand to reason. There are overwhelming materials to say that he was found in possession of the contraband and was arrested along with the same and brought to book; thus the case was registered and he was produced before the court. When he was produced on the same day evening, he did not raise such a contention before the learned Additional Chief Judicial Magistrate who remanded him first that; he has been falsely implicated and that the police was foisting a false case against him. That means such a contention is the result of a second thought, which cannot be accepted. That means there is no basis in the contention in the appeal memorandum that the case was framed on the basis of circumstantial evidence. On the other hand, there is direct evidence brought out through the oral testimony of PWs 1 to 4 and also other material documents prepared contemporaneously by the police officials, which cannot be doubted. Crl.A.No.455 of 2019 18 15. Prosecution has also taken care to follow the procedures, strictly in accordance with law. PW1 had proceeded to the place after sending a report under Section 42 of the N.D.P.S Act; similarly, Ext.P11 suggests that he had sent a report under Section 57 also. 16. To sum up, finding of the trial court does not warrant interference. It is only to be confirmed. 17. Turning to the sentence also, it cannot be held that sentence of rigorous imprisonment for five years is harsh or disproportionate to the gravity of the offence. In fact, possession and spread of narcotic drugs are very rampant in the society. Spread of such an item is intended to corrupt the body and mind of the youth. It is considered to be an act destroying the mental equilibrium of thousands of people. It has got far reaching impact on the posterity. The Hon'ble Supreme Court in **Union of India v. Kuldeep Singh [AIR 2004 SC 827]** held that an offence relating to narcotic drugs or psychotropic substances is more Crl.A.No.455 of 2019 19 heinous than a culpable homicide because the latter affects only an individual while the former affects and leaves its deleterious impact on the society, besides shattering the economy of the nation as well. Therefore, a very serious view has to be taken in the matter. However considering the fact that no such case is registered against him in the past and also considering the serious pandemic situation, I feel that sentence of rigorous imprisonment for four years and a fine of Rs.10,000/- (Rupees Ten thousand only), in default to undergo rigorous imprisonment for one month, will meet the ends of justice. Subject to the above modification in sentence, the appeal stands dismissed. Sd/- **K.HARIPAL** **JUDGE** Jms //True Copy// P.A to Judge.