Kunhu Kunhu @ Joseph v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **FRIDAY, THE 25[TH] DAY OF NOVEMBER 2022 / 4TH AGRAHAYANA, 1944** **CRL.A NO. 441 OF 2008** **AGAINST THE JUDGMENT DTD 26/2/2008 IN SC 95/2005 OF ADDITIONAL** **DISTRICT COURT (ADHOC), FAST TRACK COURT NO.1, THRISSUR** **APPELLANT/ACCUSED:** **KUNHU KUNHU @ JOSEPH S/O. PULIKKOL VEETTIL THOMAS, CHINNAR NIRAPPEL, CHINNAR PARATHODE DESOM, KONNATHODI VILLAGE, UDUMPANCHOLA TALUK, IDUKKI DISTRICT.** **BY ADVS.SRI.RAJIT SRI.RANJIT BABU** ## **RESPONDENT/COMPLAINANT/STATE:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV.VIPIN NARAYAN, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON** **25.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 **Crl.Appeal No. 441 of 2008** ## **C.S.SUDHA, J** **-------------------------------------------** **Crl.Appeal No. 441 of 2008 ------------------------------------------Dated this the 25[th] day of November, 2022** ## **J U D G M E N T** In this appeal filed under Section 374(2) Cr.P.C., the appellant, the accused in S.C.No.95/2005 on the file of the Court of Session, Thrissur, challenges the conviction and sentence passed against him for the offence punishable under Section 20(b)(ii)(B) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (the Act). 2. The prosecution case is that, on 14/08/2003 at 1.30 p.m., the accused without any authority was found transporting/carrying 5.200 kilograms of ganja. The place of occurrence is stated to be on the Ayyanthole Puzhakkal road near Priyadarsini bus stop at Ayyanthole Desom, Ayyanthole Village. Hence the accused is alleged to have committed the offence punishable under the aforementioned Section. 3. PW1, the then Excise Circle Inspector, Excise Enforcement and Anti-Narcotics Special Squad, Thrissur, is the detecting officer who registered the crime, i.e., Crime No.5/2003 and lodged Ext.P2 crime and occurrence report. PW6 is the Excise Circle Inspector, Vatakara, who completed the investigation and submitted the final report alleging the 3 **Crl.Appeal No. 441 of 2008** commission of the aforesaid offence by the accused. 4. On the appearance of the accused before the court below, he was furnished with copies of all the prosecution records. On 24/07/2007, the court below framed a charge under Section 20(b)(ii)(B) of the Act, which was read over and explained to the accused, to which he pleaded not guilty. The prosecution examined PWs.1 to 6 and got marked Exts.P1 to P12 and MOs 1 to 4 in support of the case. 5. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence of the prosecution. He denied those circumstances and maintained his innocence. 6. As the court below did not find it a fit case to acquit the accused under Section 232 Cr.P.C., the accused was asked to enter on his defence and adduce evidence in support thereof. No evidence has been adduced on behalf of the accused. 7. On a consideration of the oral and documentary evidence and after hearing both sides, the court below by the impugned judgment convicted and sentenced the accused to rigorous imprisonment for four years and to pay a fine of ₹25,000/- and in default of payment of fine, to undergo rigorous imprisonment for four months under Section 20(b)(ii)(B) of the Act. 4 ## **Crl.Appeal No. 441 of 2008** Set off under Section 428 Cr.P.C. has also been allowed. It is this judgment which is assailed in this appeal by the appellant/accused. 8. In the appeal memorandum, it is alleged that the impugned judgment is improper, irregular and that the court below failed to appreciate the factual and legal position in its correct perspective and hence the same is liable to be reversed. 9. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the accused by the court below are sustainable or not. 10. Heard Adv.Rajit, the learned counsel for the appellant and Adv.Vipin Narayan, the learned Senior Public Prosecutor for the respondent. 11. The testimony of PWs.1, 2 and 6 are relied on by the prosecution to establish the case. Before I examine the sustainability of the arguments advanced on behalf of the appellant/accused, I briefly refer to the oral and documentary evidence adduced by the prosecution and relied on by the court below to arrive at a conclusion regarding guilt of the accused. PW1, the detecting officer, deposed that on 14/08/2003 at 11.35 am, while he was in the office, he received telephonic information that a person proceeding along Puzhakkal - Ayyanthole road was in possession/ transporting ganja. He immediately reduced the information to writing, which is Ext.P4 and after he 5 **Crl.Appeal No. 441 of 2008** prepared Ext.P5 grounds of belief, he forwarded the same to the Assistant Excise Commissioner, Thrissur. Thereafter, PW1 along with excise party proceeded to Ayyanthole – Puzhakkal road and while they were moving along the said road, they saw the accused coming on foot carrying a cardboard box on his shoulder. They spotted the accused near Priyadarsini bus stop at Ayyanthole Desom, at about 12.20 pm. The accused was restrained and PW1 in the presence of witnesses questioned the accused. The accused was not able to give any satisfactory answer and therefore PW1 decided to search the accused. The accused was informed that he had the right to be searched in the presence of a gazetted officer or a magistrate to which the accused replied that the search be conducted in the presence of a gazetted officer. So PW1 prepared Ext.P6 notice requesting PW2 to come to the place of occurrence for conducting search of the accused in his presence. Ext.P6 was sent to PW2 through CW4, a Preventive Officer. On receipt of Ext.P6, PW2 arrived at the scene of occurrence by 1.10 pm. PW1 introduced PW2 to the accused and the witnesses present, PW2 made a search of PW1 in the presence of the accused and the witnesses. No incriminating article was found in the possession of PW1. Thereafter, PW1 directed the accused to put down the cardboard box on his shoulder and in the presence of witnesses and PW2, the box was opened and examined. On examination, the box was 6 ## **Crl.Appeal No. 441 of 2008** found to contain ganja. Therefore PW1 arrested the accused. The ganja was weighed, sampled and sealed as per law and Ext.P1 mahazar was prepared. PW1 along with the accused and the contraband articles reached his office and registered the present crime. Ext.P3 is stated to be the search list which was prepared while conducting the search of the accused. The accused and the contraband articles were produced before the court and thereafter he submitted a forwarding note requesting a sample to be forwarded for chemical examination. MO1 is the cardboard containing the balance ganja; MO2 is the packet containing the sample ganja which was received back from the laboratory after examination; MO3 is the wrist watch worn by the accused at the time of the incident and MO4 is the packet containing currency notes worth ₹100/- seized from the accused. PW1 further deposed that as 15/08/2003 was a public holiday, the MOs were produced before the Court the next day, i.e., on 16/08/2003. Till the time it was produced before the court, the MOs had been kept in his office in his safe custody. 12. PW2, the gazetted officer in whose presence the search was conducted and PW6 who was in the excise party along with PW1 at the time of the search and seizure, when examined more or less supports the case narrated by PW1. It is true that PW3 and PW4, the independent witnesses, have turned hostile and denied having seen the excise party seizing the 7 ## **Crl.Appeal No. 441 of 2008** contraband article from the accused. However, merely because the independent witnesses have turned hostile, is no ground to reject the entire prosecution story. If the testimony of the official witnesses are found to be reliable, creditworthy and trustworthy, it is immaterial that there are no independent witnesses to corroborate their testimony. Therefore, the question to be considered is whether the testimony of PWs 1, 2 and 6 can be relied on to prove the prosecution case. 13. It was submitted on behalf of the accused that, it has come out in evidence that the residence of the Judicial First Class Magistrate and also the Collectorate is situated quite near the alleged place of occurrence. However, instead of taking the assistance of any of the said gazetted officers available in the vicinity, PW1 is supposed to have taken the assistance of PW2, his colleague, whose office is situated about six kilometers away from the place of occurrence. According to the learned counsel, the services of PW2 was availed only to suit the case falsely setup by PW1 and had he taken the assistance of an independent gazetted officer available in the vicinity, his object of falsely implicating the accused would not have been successful and hence, the reason why the services of PW2 was availed by PW1. In the case on hand, the seizure is from a cardboard box that was being carried by the accused on his shoulder and not on a personal search. Here I refer to the 8 ## **Crl.Appeal No. 441 of 2008** decision in **State of Punjab v. Baljinder Singh, AIR 2019 (SC) 5298** wherein the question considered was - If a person found to be in possession of a vehicle containing contraband is subjected to personal search, which may not be in conformity with the requirements under S.50 of the Act; but the search of the vehicle resulted in recovery of contraband material, which stands proved independently; would the accused be entitled to benefit of acquittal on the ground of non - compliance of S.50 of the Act, even in respect of material found in the search of the vehicle? The Apex court held that S.50 of the Act affords protection to a person in matters concerning personal search and stipulates various safeguards. It is only upon fulfilment of and strict adherence to said requirements the contraband recovered pursuant to personal search of a person can be relied upon as a circumstance against the person. The law is well settled that an illicit article seized from the person during personal search conducted in violation of the safe - guards provided in S.50 of the Act cannot by itself be used as admissible evidence of proof of unlawful possession of contra-band. But the question is, if there is any other material or article recovered during the investigation, would the infraction with respect to personal search also affect the qualitative value of the other material circumstance. As regards applicability of the requirements under S.50 of the Act is concerned, it is well settled that the mandate of S.50 9 ## **Crl.Appeal No. 441 of 2008** of the Act is confined to personal search and not to search of a vehicle or a container or premises. Referring to the Constitution Bench decision in **State of Punjab v. Baldev Singh, AIR 1999 (SC) 2378** , it has been held that conviction cannot be based only on the basis of possession of an illicit article recovered from personal search in violation of the requirements under S.50 of the Act. But if there is other evidence on record, such material can certainly be looked into. The personal search of the accused in the case did not result in recovery of any contraband. Even if there was any such recovery, the same could not be relied upon for want of compliance of the requirements of S.50 of the Act. But the search of the vehicle and recovery of contraband pursuant thereto having stood proved, merely because there was non - compliance of S.50 of the Act as far as personal search was concerned, no benefit could be extended so as to invalidate the effect of recovery from the search of the vehicle. Any such idea would be directly in the teeth of the conclusion in **Baldev Singh** ( _Supra)._ 14. As in the case of **Baljinder Singh** ( _Supra_ ), in the case on hand also, though the person of the accused was searched, no contraband was recovered. On the other hand, the contraband seized was from the cardboard box that was being carried by the accused on his shoulder. This apparently is not a recovery or seizure from the 'person' of the accused and hence in such 10 **Crl.Appeal No. 441 of 2008** circumstances, compliance of sub-section (1) of Section 50 does not arise for consideration in this case. As Section 50 is not applicable, its compliance or non-compliance is immaterial. 15. Another argument advanced is that, as per the version of PW1, it was while he was in the office, he had received secret information that a person was transporting ganja and hence he along with party had proceeded to the place of occurrence. However, according to PW6 it was while he was on patrol duty with PW1, the incident had been detected. There is no inconsistency in the testimony of PW1 and PW6 as pointed out on behalf of the accused. PW1 is the detecting officer and it is not necessary that he should have passed on or conveyed the secret information that he had received to all the officers in his team. PW6 may not have been informed and therefore, merely because he deposed that he was present along with PW1 while on patrol duty and it was while so the incident had been detected, is also no reason to suspect the prosecution case. 16. Reference was further made to the testimony of PW2, who deposed that he had seen the accused at a distance of 15 mtrs. According to the learned counsel, the place of occurrence is a public road and therefore there must have been several people on the road and in such circumstances, it would have been impossible for PW2 to identify the accused as the person 11 ## **Crl.Appeal No. 441 of 2008** carrying the contraband. Here PW2 does not say that he had identified the accused as the person carrying the contraband. He only deposed that on the said day he had seen the accused for the first time at about a distance of 15 mtrs. 17. Another argument is relating to the delay in the contraband article being produced before the court. The incident in this case took place on 14/08/2003 at 1.10 p.m. The accused is seen produced before the Magistrate concerned on 15/08/2003 at 12.10 p.m. In the remand report item no.(6) in the enclosures refer to the contraband article in the property list and the list shows the details of the contraband seized. It is true that the contraband article seized was produced before the court only 16/08/2003. According to PW1, 15/08/2003 was a holiday and hence the reason why the contraband article had been produced before the court on 16/08/2003. However, PW1 has specifically deposed in the chief examination itself that till the contraband article was produced before the court, the same was in his personal safe custody. This testimony of PW1 has not been discredited in any way. Mere delay in producing the contraband article is also no reason to reject the entire prosecution case. The question in such circumstances will be to see whether the delay has been properly and sufficiently explained. It is true that it would have been ideal if the article had been produced on the 12 ## **Crl.Appeal No. 441 of 2008** same day or on the next day. But the production of the contraband article on the next day has not affected the prosecution case in any way because a plausible reason has been given by PW1 and he has also explained that till the article was produced before the court, it was in his safe custody. Therefore there is no ground to suspect the prosecution case on this aspect also. 18. It was also submitted that the present case is a false case registered against the accused; that the actual accused is one Rappai and it was only because the accused did not reveal the whereabouts of the said person, he has been falsely implicated in this case and made a scapegoat. Though such a contention is seen taken, there is no materials on record to substantiate or probabilise the said case. Hence I find no reasons to disbelieve the prosecution case. 19. It was finally submitted on behalf of the accused that the incident in this case took place in the year 2003 when the accused was about 68 years old. Now he is about 89 years old and completely laid-up and that if his conviction confirmed, he will have to be physically carried to the prison. Hence , it is submitted that if at all this Court confirms the findings in the impugned judgment, the substantive sentence may be reduced to the period already undergone by the accused. On behalf of the accused, 13 ## **Crl.Appeal No. 441 of 2008** Crl.M.A.No.1/22 has been filed with a request to receive Annexures A1 and A2 in support of the argument that the accused is bedridden. This submission is not disputed or objected to by the learned Public Prosecutor. In the light of the submission made, the learned Public Prosecutor was directed to get instructions from the officer concerned as to the present condition of the accused. The Excise Circle Inspector, Special squad, Thrissur has filed a report dated 18/11/2022 endorsing the submission made on behalf of the accused. From the impugned judgment it is seen that the accused was arrested on 15/08/2003 and thereafter released on bail on 23/10/2003. Therefore he was in custody for a period slightly over two months. In the result, the appeal is dismissed confirming the conviction entered into by the Sessions Court. However, in the light of the aforesaid facts and circumstances, the substantive sentence is reduced to the period already undergone by the accused. Interlocutory applications, if any pending, shall stand closed. **==> picture [24 x 11] intentionally omitted <==** **C.S.SUDHA JUDGE** ami/ 14 **Crl.Appeal No. 441 of 2008** ## **APPENDIX OF CRL.A 441/2008** ## **APPELLANT'S ANNEXURES** ## **Annexure A1** **Annexure A1 A TRUE COPY OF THE TREATMENT CERTIFICATE OF THE APPELLANT ISSUED BY DR.RANJITH FROM THE TALUK HEAD QUARTERS HOSPITAL, ADIMALI, IDUKKI, DATED 29.06.2022. Annexure A2 A TRUE COPY OF THE PHOTOGRAPH OF THE APPELLANT**