Krishnankutty v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.UBAID** **TUESDAY, THE 6TH DAY OF JUNE 2017/16TH JYAISHTA, 1939** **CRL.A.No. 226 of 2011 ( )** **--------------------------** **IN SC.413/2007 of II ADDITIONAL D.C. & SESSIONS COURT,PALAKKAD** **APPELLANT(S)/ACCUSED: ---------------------** **KRISHNANKUTTY, AGED 49 YEARS, S/O. VELAYUDHAN, KANDANKALIPOTTA HOUSE ANCHUMOORTHYMANGALAM, VADAKKANCHERRY.** **BY ADV. SRI.NIREESH MATHEW** ## **RESPONDENT(S)/COMPLAINANT:** **--------------------------** **STATE OF KERALA REPRESENTED BY CIRCLE INSPECTOR OF POLICE, VADAKKANCHERRY POLICE STATION, PALAKKAD DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY GOVERNMENT PLEADER SRI. C.S. HRITHWIK** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ds** ## **P.UBAID, J.** - - - - - - - - - - - - - - - - - - - - - - Crl.A.No. 226 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 06[th] day of June, 2017 ## **J U D G M E N T** The appellant herein is the sole accused in S.C.No. 413 of 2007 of the Court of Session, Palakkad. He faced prosecution in the court below on the allegation that at about 3.00 p.m. on 15.06.2006 at Anjumoorthymangalam, he was found possessing 2 kgs of ganja carried in a big shopper. The offence was detected by the Sub Inspector of Police, Vadakkencherry, on the basis of a secret information. During patrol, the Sub Inspector proceeded to the place of detection on the basis of the details furnished by the informant as regards the person found carrying ganja, and within no time, he reached the place. The Sub Inspector found the accused carrying a big shopper, and on seeing the police party, he got perplexed. On suspicion, the Sub Inspector wanted to search his body, and accordingly, the accused was told about his right to be searched in the presence of a Gazetted Officer or a Judicial Magistrate. ## **Crl.A.No. 226 of 2011** **-2-** When the accused consented for search by the Sub Inspector himself, the Sub Inspector searched the body of the accused, but no contraband could be seized on body search. However, when the Sub Inspector examined the big shopper, he found 2 kgs of ganja therein. The accused was arrested on the spot, and the quantity of ganja was seized as per a mahazar. 2. The case came up before the learned Additional Sessions Judge-II, Palakkad, for trial and disposal. The accused appeared before the trial court, and pleaded not guilty to the charge framed against him under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act. The prosecution examined 8 witnesses in the trial court, and proved Exts. P1 to P11 documents. MO 1 to MO4 properties were also identified during trial. 3. When examined under Section 313 Cr.P.C., the accused denied the incriminating circumstances, and **Crl.A.No. 226 of 2011** **-3-** submitted that nothing was in fact seized from him by the Sub Inspector, and that a false case was foisted against him. The accused did not adduce any evidence in defence. 4. On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for five years and to pay a fine of ₹10,000/-, by judgment dated 05.02.2011. Aggrieved by the judgment of conviction, the accused has come up in appeal. 5. When this appeal came up for hearing, the learned counsel for the appellant submitted that there are some infirmities in this case, and that the accused is entitled for acquittal on that ground. One infirmity argued by the learned counsel is that there is no report in this case under Section 57 of the NDPS Act, and the other infirmity is that the properties were produced in court after four days. 6. PW5 is the Sub Inspector who detected the offence, and PW6 is the Circle Inspector who investigated **Crl.A.No. 226 of 2011** **-4-** the case. PW1 is the Village Officer who prepared the Ext.P1 site plan. PW2 and PW3 examined as independent witnesses turned hostile to the prosecution. However, they identified their signature in the detection mahazar. PW7 is the Police Constable who assisted the Sub Inspector in the process of detection. 7. PW5 and PW7 have given definite and consistent evidence proving detection in this case, including the arrest of the accused and the seizure of 2 kgs of ganja carried by him in a big shopper. The big shopper was identified as MO4 during trial by the witnesses. The witnesses are consistent that from the total quantity of ganja, sample was taken in three packets of 10 gms each, and the sample packets were well packed and sealed according to law at the spot of detection itself. The remaining quantity of ganja was also well packed and sealed at the spot of detection. PW5 proved Ext.P6 as the information recorded under Section 42 of the NDPS Act. His **Crl.A.No. 226 of 2011** **-5-** evidence convinces the court that the accused was duly informed of his right to be searched in the presence of Gazetted Officer or Judicial Magistrate, but the accused consented for search by the Sub Inspector himself. Of course, this is not a case where Section 50 of the NDPS Act is applicable. The contraband article was not seized on body search of the accused. It was carried by him in a big shopper, and the said big shopper was seized from the hands of the accused. In **Sajan Abraham** v. **State of Kerala** , [2001 (3) KLT 146 (SC)], it was held that oral communication as regards the right to be searched under Section 50 of the NDPS Act will be valid. Of course, in this case, the contraband ganja was not seized on body search, and so, compliance of Section 50 of the NDPS Act need not be discussed much. Being not a case of search or seizure at any building or vessel, there is no question of compliance of Section 42 of the NDPS Act also. The accused was found by the Police at a public place, and the alleged seizure was **Crl.A.No. 226 of 2011** **-6-** made on the public road. The detection happened to be made by the Sub Inspector during patrol on the basis of secret information. So, compliance of Section 42 of the NDPS Act also need not be discussed in this case. 8. The Ext.P11 report of Chemical Analysis shows that the samples received at the laboratory were identified as ganja on analysis. The material witnesses identified the MO2 series packets as the sample packets bearing labels containing the signature of the accused and the witnesses. The MO1 packet of ganja was well identified by the witnesses during trial. On these aspects, there is nothing to discredit the evidence of PWs 5 and 7. It stands well proved that the material contained in MO1 packet is nothing but ganja, that the samples were taken from the said packet of ganja, that the MO1 ganja was carried by the accused in the MO4 big shopper, and that the material collected from the quantity possessed by the accused was identified as ganja. Thus, I find that the accused is liable for **Crl.A.No. 226 of 2011** **-7-** conviction under Section 20(b)(ii)(B) of the NDPS Act. 9. The learned counsel for the appellant submitted that there is some inconsistency as regards the quantity of ganja. In all the proceedings including the detection mahazar and the property list, the prosecution is definite that the quantity is 2 kgs. The weight was verified in court when the property was produced. There also, it was found as 2 kgs. During trial, PW5 happened to state that the remaining quantity was 1.70 kgs. This must be a slip of the tongue. The total quantity of samples taken is 30 gms. So, instead of stating the balance quantity as 1.970 kgs, PW5 probably by a slip of the tongue, happened to state it as 1.70 kgs. This mistake can be ignored because the total quantity was consistently reported, and also verified in court as 2 kgs. 10. One important point argued by the defence is that there is no report in this case under Section 57 of the NDPS Act. It has come out in evidence that without any ## **Crl.A.No. 226 of 2011** **-8-** delay, on the date of detection itself, investigation was taken over by the Circle Inspector, and all the papers including the FIR were submitted before him by the Sub Inspector. In **Sajan Abraham** 's case cited supra, the Honourable Supreme Court held that in a case where all the papers including the FIR were submitted by the detecting officer before the immediate superior officer, thereby giving the correct information regarding the detection of the offence with details, substantial compliance of Section 57 can be found. In the particular facts of this case, the said decision can be applied, and substantial compliance of Section 57 of NDPS Act can be found. It is well settled that the procedure under Section 57 is not mandatory, and that if the facts including detection and other aspects are well proved by evidence otherwise, mere non-compliance of Section 57 of NDPS Act will not vitiate the prosecution. All the records including the FIR were received by PW6 on the date of detection itself, and thus, he got information in detail ## **Crl.A.No. 226 of 2011** **-9-** about the whole detection process. What the report under Section 57 of the NDPS Act must contain is also those details. So, applying the decision in **Sajan Abraham** 's case cited supra, I find that there was substantial compliance of Section 57 of the NDPS Act in this case, and mere absence of a report specifically will not vitiate this prosecution, where the case stands well proved otherwise. 11. Another infirmity argued by the defence is the delay in producing the property in court. PW5 is definite that he had produced the properties in court on the date of detection itself. But the Ext.P9 property list shows an endorsement by the learned Magistrate as “C & R” (Compare and Receive) dated 20.06.2006. This does not mean that the property was received only on 20.06.2006. The seal of the court affixed on the property list does not show the exact date. What the endorsement on the property list would show is only that only on 20.06.2006, the properties were assigned a number in the property register. ## **Crl.A.No. 226 of 2011** **-10-** This does not mean that the properties were actually received in court only on 20.06.2006. The defence could not bring out anything in the cross examination of PWs 5 and 6 to suggest any possibility of any sort of tampering with the properties. I find no reason to disbelieve the evidence of PW5 that he had produced the properties in the court on the date of detection itself. Anyway, in the absence of any proof that there was any possibility of any sort of tampering with the properties, the said delay of four days, if at all there was such a delay, will not assume any importance. As discussed above, I find that the prosecution has well proved the case beyond any reasonable doubt, that the accused was found possessing 2 kgs of ganja at Anjumoorthymangalam at about 3.00 p.m. on 15.06.2006. The conviction is only to be confirmed in appeal. 12. Now the question of sentence. No previous crime of similar nature is seen reported against the appellant. The quantity of ganja involved in this case is 2 ## **Crl.A.No. 226 of 2011** **-11-** kgs. The fine sentence imposed by the trial court is quite reasonable. The appellant must be now aged about 60 years. A long term of sentence is felt not necessary in the above circumstances. On a consideration of all the relevant aspects, I feel that rigorous imprisonment for two years will be the adequate sentence in this case. In the result, the conviction against the appellant under Section 20(b)(ii)(B) of the NDPS Act is confirmed, and the the appeal is accordingly disposed of. However, the jail sentence imposed by the court below will stand reduced to rigorous imprisonment for two years. The fine sentence imposed by the court below, with the default sentence thereon, is maintained. The appellant will get the benefit of set off as already ordered by the trial court. Sd/- **P.UBAID** **JUDGE** ds/07.06.2017 //True copy// P.A. to Judge