Koyamon @ Pullichi Koya v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 20TH DAY OF SEPTEMBER 2016/29TH BHADRA, 1938** ## **CRL.A.No. 1161 of 2015 ()** **-------------------------SC.NO. 7/2015 OF SPECIAL COURT (NDPS ACT CASES), VATAKARA CRIME NO. 652/2014 OF KASABA POLICE STATION , KOZHIKODE DISTRICT -----------------------** **APPELLANT :** **----------------------** **KOYAMON @ PULLICHI KOYA, S/O.POKKER, C.NO.550/2015, CENTRAL PRISON, KANNUR.** ## **BY ADV. JENCY MICHAEL(STATE BRIEF)** **RESPONDENT : ------------------------** **STATE OF KERALA (KASABA POLICE STATION CR.NO.652/2014)** **BY PUBLIC PROSECUTOR SRI.AMJAD ALI** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-08-2016 , THE COURT ON 20-09-2016 DELIVERED THE FOLLOWING:** **sts** **RAJA VIJAYARAGHAVAN.V, J. ---------------------------------------CRL.A. No. 1161 of 2015 ----------------------------------------Dated this the 20[th] day of September, 2016** ## **J U D G M E N T ~~~~~~~~~~** - 1.This appeal is preferred against the judgment dated 01/08/2015 passed in S.C.No.7/2015 by the Special Judge (NDPS Act cases), Vatakara. - 2.In the aforesaid case, the appellant was tried for the offence punishable under section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act' for brevity). He was found guilty and was sentenced to undergo rigorous imprisonment for a term of 3 years and to pay a fine of Rs. 30,000/- and in default of payment of fine was directed to undergo simple imprisonment for a period of 3 months. CRL.A. NO. 1161 of 2015 2 3.The case of the prosecution is that on 8.8.2014 at 9.40.a.m, the Sub Inspector of Police, Kasaba police station received credible information that the appellant, who is involved in other narcotic cases, was engaged in the sale of ganja sitting on the “Althara” near to the Tali temple. The said information was recorded in the general diary and a report was prepared in compliance with Section 42 of the Act and the same was forwarded to the superior officer. Immediately thereafter the detecting officer rushed to the place of occurrence with his subordinate officers. When they reached near the temple, they spotted the appellant . On seeing the police officers, the appellant made a vain attempt to flee. He was duly intercepted and was questioned. When he gave evasive replies, he was informed that they proposed to conduct a a body search . He was duly informed of his right to be searched in the presence of a gazetted officer. When the CRL.A. NO. 1161 of 2015 3 appellant insisted that the search be conducted in the presence of a gazetted officer, a memo was prepared wherein the appellant in his own hand requested for the presence of the gazetted officer . The Excise Inspector, Kozhikkode was informed over phone and he was requested to come to witness the search. After the arrival of the gazetted officer , the bag which was found in the possession of the accused was searched after complying with all the formalities. A plastic cover containing ganja wrapped in cloth was found inside the bag. On a search of the body of the appellant, cash amounting to Rs.60/- and a mobile phone was found. A weighing balance was brought from a nearby shop and when the contraband was found to weigh 2.060 kg. The appellant was arrested at the spot. Arrest memo and inspection memo was prepared and 2 samples of the contraband were taken in separate plastic covers. The same was wrapped, tied, sealed and CRL.A. NO. 1161 of 2015 4 labeled and the signature of the appellant, the witnesses and the detecting officer was affixed on the labels. The balance of the contraband was separately wrapped, sealed and labelled and identifying marks were affixed. The accused, the contraband articles and other items which were seized were brought to the Police Station and Crime No. 652/2014 was registered. Thereafter, a detailed report was prepared in compliance with Section 57 of the NDPS Act and the same was forwarded to the superior officer. - 4.Investigation was thereafter conducted by the Circle Inspector of Police, Kasba Police Station. Ext.P10 Scene mahazar was prepared and the sample seized were forwarded for chemical analysis. Ext.P12 chemical analysis report was received from the Regional Chemical Examiners Laboratory, Kozhikkode in which it was reported that sample was cannabis sativa ( ganja) . Thereafter investigation was conducted and final report CRL.A. NO. 1161 of 2015 5 was laid before the jurisdictional Court. - 5.After hearing the prosecution and the accused, a charge under section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 was framed against the appellant. When the charge was read over and explained he pleaded not guilty and claimed that he be tried. - 6.In the trial which followed as many as 8 witnesses were examined by the prosecution as PWs 1 to 8 . Exts. P1 to P12 were were exhibited and marked. MOs 1 to 6 were produced and identified. - 7.After the close of prosecution evidence the incriminating materials arising from the evidence was put to the accused under Section 313 (1) (b) of the Code of Criminal Procedure. Other than denying all the incriminating materials, he went on to state that he was convicted in CRL.A. NO. 1161 of 2015 6 several theft cases and he was residing within the jurisdictional limits of the Circle Inspector of Police, Kasba Police Station. While so, he was called to the Police Station at Panniyankara and was asked to disclose the names of felons involved in other cases. When he refused to budge to the orders of the police , he was implicated falsely in the instant case. No evidence was adduced by the defence. 8.The learned Special Judge, after evaluating the oral and documentary evidence and after hearing the rival submissions, concluded that the prosecution had succeeded in bringing home the guilt. The contentions as regards infraction of the mandatory formalities was repelled by the learned Special Judge after meticulously appreciating the evidence. It was further held that the evidence of PWs 1, 2, 4 , 5 and 6 clearly corroborated each other and that the defence was unable to make any CRL.A. NO. 1161 of 2015 7 dent in their evidence. The infirmities pointed out by the defence were all considered in detail and the accused was found guilty and was convicted as aforesaid. The above findings are assailed in this appeal. - 9.As the appellant is in jail, a legal aid counsel was appointed to prosecute the appeal for and on his behalf. - 10.Heard the learned State Brief Counsel as well as the Public Prosecutor. - 11.The learned State Brief Counsel, with much tenacity and vehemence, has meticulously taken this Court through the evidence . The following submissions are made. - (a) The conviction entered into between the appellant is bad as the detecting officer has failed to comply with the mandatory provisions under the Act. According to the learned counsel, Sections 42, 50 and 57 of the NDPS Act 1985 has been violated and on CRL.A. NO. 1161 of 2015 8 that sole ground conviction is liable to be set aside. (b) It is submitted that there were material discrepancies in the evidence tendered by the prosecution witnesses and the learned Special Judge misdirected himself in holding that the evidence of PWs 1, 2, 4, 5, and 6 was credible. (c) Referring to Ext.P5 Scene mahazar it is contended that the ‘althara’ and the ‘temple’ were separated by a long distance and this fact would clearly reveal that the entire prosecution case is false and the stagemanaged. - (d) Referring to Ext.P11, forwarding note it is submitted that though the seizure was on 8.8.2014, samples were forwarded to the chemical analyst only on 18.8.2014. This long and undue delay would falsify the case of the prosecution and render the conviction illegal. CRL.A. NO. 1161 of 2015 9 (e) It is further urged that the prosecution has not let in any evidence to show that the items which were seized on 8.8.2014 and forwarded as per Ext. P11 was the item which was despatched for the purpose of analysis. (f)Referring to samples which were seized, it is pointed out that there was discrepancy in the weight which would render the prosecution is unreliable. It is also submitted by the learned counsel that Ext.P12 chemical analysis certificate would not reveal that the labels carried the signature of the accused , the witnesses or the investigating officer. - 12.The learned Public Prosecutor on the other hand submitted that the learned Special Judge had meticulously considered the documentary as well as oral evidence and entered into a conclusive finding as regards the involvement of the accused. According to the learned CRL.A. NO. 1161 of 2015 10 Public prosecutor, it was on receipt of credible information that PW1 had reached the spot after recording the reasons and information as contemplated under Sec.42(1) and (2). It is pointed out that this was done despite the fact that the seizure was in a public place and Section 43 was applicable . Refuting the contention of the learned counsel that Section 50 has not been complied with, it is submitted that the accused has endorsed in his own handwriting in Exhibit P 2 notice prepared in compliance with Section 50 of the Act , that he was informed of his right to be searched in presence of a gazetted officer or a Magistrate. In view of the above, it would be futile for the appellant to contend that Section 50 has been violated. According to the learned Public Prosecutor, the mandatory provisions of the NDPS Act has been complied with in letter and spirit and the learned Session Judge has considered all the relevant aspects in order to come to the CRL.A. NO. 1161 of 2015 11 finding that the accused was guilty of the offence. There is no reason warranting interference is the submission of the learned Public Prosecutor. 13.I have considered the rival submissions, I have gone through the records and I have perused the judgment passed by the learned Sessions Judge as well. 14.PW1 is the detecting officer and the sequence of events have already been narrated in detail. PW1 stated that the information received by him was reduced in writing in the general diary and a detailed report was sent to his superior officer. Ext.P1 is the said report. He also deposed that after intercepting the accused and after preliminary questioning he had informed the accused of his right to be searched in the presence of a Gazetted Officer. Ext.P2 is the notice prepared in compliance of Section 50 of the NDPS act. The endorsement made by the appellant that the presence of the gazetted officer is CRL.A. NO. 1161 of 2015 12 required can be seen in Ext.P2. It was pursuant to the same that PW4, the Excise Circle Inspector, Kozhikkode was summoned to the spot. He has deposed in detail about the search that was conducted and about the contraband items which was seized from the bag. Samples of hundred grams each were taken for the purpose of analysis and the same was wrapped, tied, sealed and labeled in accordance with law. They were numbered as S1 and S2. The rest of the items were marked separately as MOs 1 to 6. The material objects were seized as per Ext.P5 seizure mahazar. 15.The evidence of PW1 was corroborated by PW4, the Excise Circle Inspector, Kozhikkode. He deposed that he received information from PW1 that the police party had intercepted a person who was dealing with Ganja near the Tali Temple. His presence at the spot was requisitioned. He testified that search was conducted in his presence and CRL.A. NO. 1161 of 2015 13 also deposed about the seizure of Ganja from the bag. He identified the accused and also the MOs which were seized in his presence. After going through the evidence of PW1 and PW'4, I find no reason to disbelieve the same. - 16.PW2 is the civil police officer of Kasbah Police Station, who was present along with PW1 at the time of detecting the offence. He also spoke in tune with the version of PW1. - 17.PW5 is an independent witness who was examined to prove the seizure. He deposed that he was working as a Manager in a travel agency. On 8.8.2014 at about 10 a.m. he saw the appellant being intercepted by the police near to the temple. He witnessed the seizure of ganja from the bag possessed by the accused. He also stated that the ganja was weighed using a balance which was brought from a nearby shop and it was found to weigh 2 kg. He has signed as a witness to the seizure mahazar. He has CRL.A. NO. 1161 of 2015 14 identified his signature in Ext.P5 mahazar and as also identified the accused who was standing in the dock. The learned Sessions Judge after going through the evidence of the said witness found him to be eminently reliable. 18.PW6 is the owner of a shop which is situated adjacent to the temple. He also deposed in tune with the prosecution version and he stated that the weighing balance was taken from the shop by PW1. According to him, the contraband article was weighed by his brother , one Mony. - 19.PW8 is the Circle Inspector of Police, Kasaba Police Station who deposed before court that he had forwarded the sample of the contraband article seized from the possession of the accused for chemical analysis. Ext. P11 is the forwarding note. Through him, Ext.P12, the report of analysis was marked. Ext.P12 would reveal that the seal on the packet sent for analysis was found intact and tallied with the sample seal provided. CRL.A. NO. 1161 of 2015 15 20.After having gone through the evidence of PWs 1, 2, 4, 5 and 6, I am of the view that the prosecution has succeeded in establishing the search, seizure and arrest of the accused beyond any doubt . 21.I find no merit in the submission of the learned counsel that there has been infarction of the mandatory provisions of the NDPS act. Admittedly the appellant was found dealing with ganja in a public place .There can be no doubt that Section 43 would be applicable in such a situation .However, PW1 has complied with Section 42 of the Act as well. It has come in evidence that on receipt of the information he had recorded the same in the general diary and thereafter Ext.P1 report was sent to his official superior. This fact is deposed to by PW 9 as well, who is a Circle Inspector of Police, Kasba Police Station and the official superior of PW1. If a search is made in a public place, the officer conducting the search is not CRL.A. NO. 1161 of 2015 16 required to comply with sub Sections (1) and (2) of Section 42 of the NDPS Act. The aforesaid view gets support from the decisions in **Directorate of Revenue and Another. v. Mohammed Nisar Holia [** 2008 (2) SCC 370] and **State, NCT of Delhi v. Malvinder Singh [** 2007 (11) SCC 314]. 22.The contention of the appellant that Section 50 was violated cannot be sustained. In the case on hand the detection of the contraband article was from the bag which was possessed by the accused. The evidence of PW1 would reveal that he had informed the appellant that he has a right to be searched in the presence of a gazetted officer and on his insistence PW4 was requisitioned to come to the spot. Exhibit P2 is the notice prepared purportedly under Section 50 of the Act . The accused has endorsed in Exhibit P2 that the presence of a gazetted officer is required. In that view of the matter, it CRL.A. NO. 1161 of 2015 17 is idle to contend that the provisions of Section 50 was violated . 23.In so far as Section 57 of the NDPS Act is concerned , it has come in evidence from Ext.P7 report that a detailed report was prepared by PW1 regarding the incident and the same was despatched to his superior officer. PW8 has deposed that he had received exhibit P7 on 8.8.2014 at 3 PM and he has endorsed this fact in Ext.P7 is well. In that view of the matter the contention of the appellant that Section 57 has been violated cannot be sustained. - 24.Exhibit P12 report of the Chemical Analyst would destroy the contention of the appellant that the contraband which was seized from the possession of the accused was not the one which was sent for analysis. It is clearly stated in the report that the seal affixed tallied with the sample seals provided. The contraband articles and the seizure mahazar and other records was sent to the Court without CRL.A. NO. 1161 of 2015 18 any delay and the contentions raised challenging the said aspect is without merit. 25.On an appreciation of the entire evidence, it leaves no doubt in my mind that the trial court has considered all the relevant aspects and have rightly concluded that the prosecution case again the appellant stands proved. I find no reason to take a different view in the facts and circumstances. I also do not find any merit in the contention of far the appellant that that there has been infarction of the provisions of the NDPS Act. I am unable to appreciate, any of the submissions of the learned counsel appearing for the appellant though urged with much vehemence and ability. In the light of the evidence adduced by the prosecution, which indisputably remains un-rebutted, the learned Sessions Judge was justified in placing reliance on such evidence and on finding the appellant guilty of the offence. I concur with CRL.A. NO. 1161 of 2015 19 the findings of the learned Sessions Judge and uphold the conviction. I find no merit in this appeal and the same is dismissed. Sd/- **RAJA VIJAYARAGHAVAN.V, JUDGE** ps/17/9/16