Kodudwarai s/o Kaduthadwarai and Arashan s/o Thavasi v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **MONDAY, THE 29[TH] DAY OF JULY 2024 / 7TH SRAVANA, 1946 CRL.A NO. 832 OF 2006 AGAINST THE JUDGMENT DATED 03.04.2006 IN CC NO.30 OF 2004 OF SPECIAL COURT (NDPS ACT CASES), THODUPUZHA APPELLANTS/ACCUSED:** |**1**|**KODUDWARAI, S/O.KADUTHADWARAI**| |---|---| ||**RESIDING AT CUMBAM MUNICIPALITY,**| ||**CUMBAM, WARD NO.1, HOUSE NO.47 (C),**| ||**UTHAMAPALAYAM TALUK, THENI DISTRICT.**| |**2**|**ARASHAN S/O.THAVASI**| ||**RESIDING AT CUMBAM MUNICIPALITY,**| ||**WARD NO.1, NEAR S.V.NURSERY SCHOOL,**| ||**UTHAMAPALAYAM TALUK, THENI DISTRICT.**| ||**BY ADVS.**| ||**SRI.C.M.TOMY**| ||**SRI.MATHEW SKARIA**| ||**SMT.BEENA V. -STATE BRIEF**| ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI.SANAL P.RAJ -P.P.** ## **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON** **24.07.2024, THE COURT ON 29.07.2024 DELIVERED THE FOLLOWING:** 2 **Crl.Appeal No.832 of 2006** ## **C.S.SUDHA, J.** **-------------------------------------------------Crl.Appeal No.832 of 2006 --------------------------------------------------Dated this the 29th day of July 2024** ## **J U D G M E N T** This appeal under Section 374(2) Cr.P.C. has been filed by the accused in C.C.No.30/2004 on the file of the Special Courts for NDPS Act cases, Thodupuzha, challenging the conviction entered and sentence passed against them for the offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the NDPS Act). 2. The prosecution case is that on 02/07/2004 at 12:15 p.m, the accused, two in number were found in possession of 5 ½ kg each of dried ganja which was kept in plastic covers tied to their body from chest to waist using plastic ropes. Hence the 3 ## **Crl.Appeal No.832 of 2006** accused are alleged to have committed the offence punishable under Section 20(b)(ii)(B) of the NDPS Act. 2.1. Pursuant to the registration of Ext.P9 FIR by PW1, the investigation was conducted by PW6, the then Circle Inspector of Police, Kattappana. He completed the investigation and submitted the charge sheet before the court alleging the commission of the offence punishable under Section 20(b)(ii)(B) of the NDPS Act. 3. On the final report being submitted, the jurisdictional magistrate after complying with the statutory formalities, committed the case against the accused to the Sessions Court concerned, which court took the case on file as C.C.No.30/2004. On appearance of the accused before the Court of Session, he was furnished with the copies of all the prosecution records. On 27/01/2006, the trial court framed a charge for the offence punishable under Section 20(b)(ii)(B) of the NDPS Act, which was read over and explained to the accused to which they pleaded not guilty. 4 ## **Crl.Appeal No.832 of 2006** 4. The prosecution examined PWs.1 to 6 and got marked Exts.P1 to P13 series and MO.1 to MO.14 series. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. regarding the incriminating circumstances appearing against them in the evidence of the prosecution. The accused denied all those circumstances and maintained their innocence. As the Sessions Court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., they were asked to enter on their defence and adduce evidence in support thereof. No oral or documentary evidence was adduced by the accused. 5. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found the accused guilty of the offence punishable under Section 20(b)(ii)(B) of the NDPS Act and hence convicted and sentenced them to undergo rigorous imprisonment for 3 years each and to a fine of ₹30,000/- each and in default to 5 ## **Crl.Appeal No.832 of 2006** undergo rigorous imprisonment for 7 months each. 6. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the accused by the trial court is sustainable or not. 7. As per order of this Court dated 06/07/2023, Adv. Beena V. was appointed as State Brief to represent the accused. Heard both sides. 8. Prosecution relies on the testimony of PWs.1 to 3 and PW5 to prove the incident. PW1, the S.I. of Police, Kattappana, the detecting officer, deposed that on 02/07/2004 at 11:00 a.m., he received information that a person was standing at the bus stand, Kattappana with dried ganja. He recorded the information in the G.D. Ext.P1 is the copy of the G.D. extract dated 02/07/2004. He intimated his superior officer, namely, the Circle Inspector of Police and Ext.P2 is the copy of the information recorded in writing and sent to the latter. Thereafter, he along with party proceeded to the bus stand and reached there at 11:15 a.m. He saw 6 ## **Crl.Appeal No.832 of 2006** the accused at the bus stand under persons suspicious circumstances. There was an unnatural bulge on the front side of their body beneath their shirt. He approached the accused, introduced himself and told them that he wanted to conduct a body search. He also informed them of their right to be searched in the presence of a gazetted officer. The accused wanted the presence of a gazetted officer and hence on his request PW5, the then Tahsildar, came to the scene of occurrence in whose presence the body of both the accused were searched. On search it was found that both the accused had plastic covers tied to their chest with plastic ropes. On examination, the covers were found to contain ganja. Each accused was found to be in possession of 5 ½ kg of ganja. The contraband was seized, packed, labelled and sealed. The accused were arrested and taken to the police station. Ext.P7 is the seizure memo prepared when the contraband articles were seized which have been marked as M.O.1 to M.O.14 series. 8.1. PW2 and PW3 are the independent witnesses who fully 7 ## **Crl.Appeal No.832 of 2006** support the prosecution case. PW2 also admitted that he is an attestor to Ext.P7 seizure mahazar. 8.2. PW5, the Tahsildar in whose presence the search was conducted by PW1 also fully supports the prosecution case. PW6 is the then Circle Inspector, Thodupuzha, who conducted the investigation into the case, completed the investigation and submitted the charge sheet before the court. 9. It was argued on behalf of the accused that there has been non-compliance of Section 50 of the Act. A joint communication of the right to be searched in the presence of a gazetted officer is not proper/sufficient compliance of Section 50. There has to be individual communication to the accused which is absent in this case. The accused persons are admittedly Tamilians and hence do not know Malayalam. There was no effective communication of the right of the accused under Section 50 as they were unable to understand what was being conveyed by PW1 to them. It was also pointed out that there has been a long delay in 8 ## **Crl.Appeal No.832 of 2006** sending the sample alleged to have been taken from the contraband alleged to have been recovered from the second accused for chemical examination. These aspects, according to the learned counsel, throw doubts on the prosecution case and hence the accused are entitled to the benefit of doubt. Reference was also made to the dictum in State of **Rajasthan v. Paramanand** , **2014 KHC 4138 : AIR 2014 SC 1384** in support of the arguments. 10. In **Paramanand** ( _Supra_ ), it has been held by the Apex Court that the joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The 9 ## **Crl.Appeal No.832 of 2006** communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. The accused must be individually informed that under Section 50(1) of the Act, he has a right to be searched before a nearest gazetted officer or before a nearest Magistrate. Therefore, relying on the aforesaid dictum, the argument is that there is no evidence that there was individual communication of the right of the accused by PW1 and hence there has been a noncompliance of the mandatory provision of Section 50(1) of the Act. 11. The aforesaid dictum is not applicable to the facts of the present case because in the said case there was a written communication that had been given by the detecting officer 10 ## **Crl.Appeal No.832 of 2006** informing the accused persons of their right to be searched under Section 50(1) of the Act. The communication was given only one accused who signed the same on his behalf and on behalf of the other accused also. The other accused had never signed the communication and hence the reason why it was held that there has been non-compliance of the mandatory provision of the Act. In the case on hand, nobody has a case that a written communication had been given by PW1. PW1 testified that he had orally informed both the accused of their right under Section 50(1) of the Act. This testimony of PW1 is supported by PW5 in whose presence the search was conducted, whom I find no reasons to disbelieve. 11.1. Referring to the dictum in **Shihab v. S.I. of Police, 2021 (5) KHC 491** , it was submitted that there has been failure to inform the accused persons that they had the right to be searched in the presence of a gazetted officer or magistrate. This has not been done by PW1 and so there is non-compliance of Section 11 **Crl.Appeal No.832 of 2006** 50(1) of the Act. 11.2. In **Shihab** ( _Supra_ ), the mahazar revealed that the detecting officer had recorded that the accused had been asked as to whether they wanted to be searched in the presence of a gazetted officer or a magistrate to which the accused replied in the negative and that he had full faith in the detecting officer who could conduct the search. Hence it was held that there was failure to inform the accused of his right under section 50(1) and so the conviction was vitiated. That is not the situation in the case on hand. According to PW1 he told the accused that they could demand the presence of a gazetted officer or magistrate for their body search and as demanded by the accused he had requested the presence of PW5. In Ext.P7 mahazar prepared contemporaneously by PW1 on the said day it is clearly stated that he had informed the accused persons of their right. ( ഞ�ന ട�യ�ന��ര��ട� അവ��ടട ശ���ത�ല ഗഞ�വ� ഒള�പ�ച� ടവച���ക�നത�യ� ഞ�ന സ�ശയ�ക�ന�ടവന�� ആകയ�ല എന�ക� ട�യ�ന����ടട ര#ഹ� 12 **Crl.Appeal No.832 of 2006** പ��രശ�ധ�കണട�ന�� ഇപപക��� പ��രശ�ധന നടത�ന സ�യ� ഒ�� ഗസറഡ� ഓഫ�സറ�ടടരയ� �ജ�സ�രപടറ�ന�ടറരയ� സ�ന�ദ1� അവക�ശടപട�ന ട�യ�ന��രക� അവക�ശ��ട3ന�� പറഞ� സ�യ� �നസ�ല�ക�യ ഒ�� ഗസറഡ� ഓഫ�സറ�ടട സ�ന�ദ1� ട�യ�ന��ര ആവശ1ടപട�കയ�ല ഇ��വട�യ�� സലത� .... തടഞ�ന�രത�യരശഷ� …........ page no.2 of Ext.P7). Therefore there is clear compliance of Section 50(1) of the Act and arguments to the contrary are only liable to be rejected. 12. It was further argued that, both the accused are Tamilians and therefore they never understood what was spoken/conveyed by PW1 to them. This again was pointed out as another flaw in the prosecution case. Reference was made to the dictum in **K.B.Rasheed v. State of Kerala, 2022 (4) KHC 435** . On going through the records, I find that the accused were represented by a lawyer of their choice and hence no translator was appointed during the course of the examination of the witnesses. However, when the accused persons were questioned 13 ## **Crl.Appeal No.832 of 2006** under Section 313(1)(b) Cr.P.C., a staff of the Court is seen to have translated the questions put by the court to them. It is true that these appears to be some procedural irregularity to the extent that no oath is seen administered to the translator before the examination started. But that procedural irregularity cannot go to the benefit of the accused as no prejudice is seen to have caused to the accused. It is also true that in answer to question No.5 in the 313 examination, the accused persons stated that they did not understand what was conveyed by PW1. (Q.5 �ജ�സ�രപടറ�ന�ടറരയ�, ഗസറഡ� ഓഫ�സറ�ന�ടറരയ� സ�ന�ദ1� ര#ഹപ��രശ�ധനക�വശ1ടപട�ട�നവര��ട� പറഞ� �നസ�ല�ക� എന�� 1-)0 സ�ക� ട��ഴ�തനത�രനപറ� എന�ണ� പറയ�ന�ളത�? A. പറഞ��നസ�ല�ക�യ�ല. ) But this stand of the accused is belied by the answer given by them to the first question put to them in 313 examination. They were asked whether they had heard and understood what the prosecution witnesses had stated, to which they answered in the affirmative. (Q.1. വ�#�ഭ�ഗ� സ�ക�കടള 14 ## **Crl.Appeal No.832 of 2006** ? A. വ�സ@��ച� രകട� �നസ�ല�രയ� �നസ�ല�യ�.) This will disprove the case of the accused that they do not know Malayalam and they never understood what was conveyed to them by PW1 before the search was conducted. 13. Ext.P11 property list shows that, the contraband articles were produced by the police before the Court on 03/07/2004, which is the very next day of the incident. Therefore, there is no delay in producing the contraband articles before the Court. Ext.P12 series dated 08/07/2004 and 27/02/2006 respectively are the copies of the forwarding notes by which the request was made to the Court to forward the samples taken from the contraband seized for chemical examination. Ext.P13 series dated 20/08/2004 and 06/03/2006 respectively are the chemical analysis reports. It is true that there was delay in sending one of the samples, namely, M.O.2 sample ganja (S2) for chemical examination. It was also pointed out that it was much after the incident in this case, the sample had been forwarded and hence the delay has caused 15 ## **Crl.Appeal No.832 of 2006** prejudice to the accused. No materials have been brought on record to show that tampering of the sample in the custody of the court was possible or that it had taken place. Therefore, mere delay in sending the sample in the custody of the court for chemical examination cannot automatically lead to the conclusion that there was tampering or that there was possibility of tampering resulting in the benefit going to the accused. On going through the materials on record, that is the testimony of the prosecution witnesses, I find that the trial court was justified in arriving at a conclusion regarding the guilt of the accused. Independent witnesses rarely support the prosecution case. Here PW2 and PW3 have clearly supported the prosecution case. Nothing has been brought out to discredit or disprove the testimony of PWs.1 to 3 and 5. Therefore, I find no reasons to disbelieve or discard their evidence. I find no infirmity or perversity in the findings of the trial court calling for an interference by this Court. Hence the appeal is liable to be 16 ## **Crl.Appeal No.832 of 2006** dismissed and I do so. Interlocutory applications, if any pending, shall stand closed. **Sd/-** **C.S.SUDHA JUDGE** Jms