Laiju @ Bhasi v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE SUNIL THOMAS WEDNESDAY, THE 9TH DAY OF DECEMBER 2015/18TH AGRAHAYANA, 1937 CRL.A.No. 436 of 2015 () ------------------------- AGAINST THE ORDER/JUDGMENT IN SC 1089/2012 of I ADDL.D.C. & ADDL.MACT,KOLLAM DATED 15-01-2015 APPELLANT(S/ACCUSED: -------------------- LAIJU @ BHASI, AGED 31 YEARS, S/O BABU, RESIDING AT MAROTIVILA VEEDU THAZHUTHALA VILLAG, E MYLAPPURE CHERRY, KOLLAM. BY ADV. SRI.HARISH GOPINATH RESPONDENT(S/COMPLAINANT: -------------------------- STATE OF KERALA, REPRESENTED BY THE ENFORCEMENT AND ANTI NARCOTIC SPECIAL SQUAD KOLLAM, THROUGH PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. R BY PUBLIC PROSECUTOR SRI.M.G.LISHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-12-2015, THE COURT ON THE 9/12/2015 DELIVERED THE FOLLOWING: ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **Crl.A. No.436 of 2015** - - - - - - - - - - - - - - - - - - Dated this the 9[th] day of December, 2015 ## **JUDGMENT** This appeal is preferred by the sole accused who stands convicted in S.C.No.1089/2012 of the First Additional District & Sessions Judge, Kollam for offence punishable under Section 22(c) of the NDPS Act, 1985. 2. The prosecution claimed that on 12/5/2010, at about 11.a.m, a person introducing himself to be a public activist conveyed a secret information that one person wearing white shirt and black pant was standing at a specified location and selling narcotic drugs. It was recorded by the Circle Inspector of Excise and Enforcement & Anti Narcotic Special Squad, Kollam and it was transmitted to the superior officer - Assistant Excise Commissioner. Two staff of the Squad,who were deputed to confirm the information, proceeded to the place and confirmed about the truth of the information. Thereafter, the Excise Circle Inspector along with his party proceeded to the spot, reached there at 11.30. a.m. and Crl.A.436/2015 2 identified the person corresponding to the physical features conveyed and intercepted him. After completing the formalities under Section 50 of the NDPS Act, search was conducted. From the pocket of his pants 26 ampules each containing 2 ml. of Bupernorphine and Rs.1230/- were recovered. After completion of the formalities, he was arrested at about 12.45 p.m. and a mahazar was prepared at 1.10. a.m. He was produced before the Magistrate along with the contraband articles. The investigation was completed by the Excise Circle Inspector who laid the complaint under Section 22(c) of the NDPS Act before the Sessions Court, Kollam. Pursuant to the summons, the accused appeared and pleaded not guilty. After recording the evidence, the charge was framed and the court below proceeded for trial. On the side of the prosecution, PWs 1 to 9 were examined and Exts.P1 to P22 series were marked. MOs 1 to 3 were identified. On the side of the accused DW1 was examined. The court below, on an evaluation of the available materials, concluded that the accused has committed an offence punishable under Section 22 (c) of the NDPS Act, convicted and sentenced him to undergo RI for four years and to pay a fine of Rs. One Lakh and in default, to Crl.A.436/2015 3 undergo RI for one more year. 3. Aggrieved by the above conviction and sentence the accused has preferred this appeal. Heard both sides and perused the records. 4. The case of the prosecution is sought to be established through the oral testimony of the detecting officer as PW1. It was sought to be corroborated by the testimony of PW2, the Excise Assistant Commissioner who claimed to have supervised the search and seizure, and by PW4, who claimed to be member of the Excise party. Though PWs 5 and 8 were projected as independent witnesses who have witnessed the entire search and seizure, both of them turned hostile and did not support the prosecution case in any manner. The contemporaneous documents that were pressed into service were Exts.P2 mahazar, Ext.P5, the arrest memo, Ext.P6, the arrest intimation, Ext.P7 the search list and Ext.P8 thumb impression of the accused. 5. A perusal of the oral testimony of PW1 shows that he has generally spoken in accordance with the meticulous details mentioned in Ext.P2 mahazar. His version is corroborated substantially by PW 2 & PW4. Ext.P5 bears the signature of the Crl.A.436/2015 4 accused and his thumb impression. Ext.P7 is the search list which bears the signatures of PW1 and PW2. Ext.P8 is the paper containing the thumb impression of the accused, Ext.P9 is the specimen signatures of the accused and the main persons involved in search and seizure. The above documents were pressed into service to contend that the search and seizure were conducted at the spot and that the contraband articles were seized from the possession of the accused. 6. PW1 had given a meticulous details of the process of sampling, sealing, labeling and all other activities in relation to the seizure. The label bears the signatures of the accused, detecting officer and the witnesses. The accused was arrested on 12/5/2010 at about 1.10 p.m. He was produced before the Magistrate on the same day at 8.35 p.m. He was directed to be produced by the Magistrate on 13/5/2010. Ext.P7 thondi list reached the court on the same day. This clearly established that the prosecution has produced the contraband articles along with the accused in the court without much delay. 7. Ext.P16 is the chemical analysis report. PW3 was the Assistant Director of Forensic Science Laboratory, who deposed Crl.A.436/2015 5 in terms of the chemical analysis report. Ext.P16 states that the test confirmed the presence of buperenorphine. Ext.P16 further indicates that the samples were properly sealed and it tallied with the sample seal provided. Substantially, the entire process of search and seizure appears to be inconformity. There is no serious allegation regarding tampering. Ext.P2 seizure mahazar bears the sample seal, which tallies with the sample seal which was provided. 8. Even though there seems to be a general uniformity in the oral testimony tendered, the learned counsel for the accused attacked the prosecution case on various grounds. It was contended that Ext.P2 appeared to be artificial in so far as it contained the minute details of search and the process that followed. It was contended that the detecting officer and the crucial witnesses were merely reproducing the recitals in Ext.P2. It was further contended that when the entire evidence of prosecution is appreciated in the background of the specific defence set up by the accused, it would show the falsity of the prosecution case. 9. The defence set up by the accused, which was evident Crl.A.436/2015 6 from the trend of cross examination and the reply given by him in answer to Section 313 Cr.P.C.questioning, was that he was absolutely innocent and was implicated falsely at the instance of one Shihabudeen, who was a member of the Excise party. According to the accused, there was a previous incident in which the said Shihabudeen had threatened him to implicate in a false case. The learned counsel for the accused contended that PW5, who was claimed to be an independent witness, not only supported the prosecution case but also went to the extent of supporting the case of the accused, to the extent that there was a false implication. According to PW5, he did not witness the search and seizure. He denied the signature in Ext.P2. He only stated that he had signed on a white paper. However, PW5 had stated that he had signed as directed by one Shihabudeen, who was a member of the Excise party. Though he denied the signature in Ext.P2, he admitted the various signatures in the documents produced by the prosecution. He further admitted that he had occasion to go to Excise Range Office. Though he stated that he could not recollect the purpose for which he had gone to the Circle Inspector's office, when the cross examination Crl.A.436/2015 7 was pursued, he admitted ultimately that he was present at the spot. The evidence of PW3 to the extent that it has gone against the prosecution, seems to be unbelievable. There is no reason, as to why the Excise party should require him to sign on a white paper. There are sufficient evidence to show that he was involved in the process of search and seizure and he retracted from his version for reasons best known to him. 10. Another crucial witness, whose evidence was pressed into service by the accused to substantiate the defence, was DW1. He claimed to be a neighbour of the accused. He admitted that he had witnessed the arrest of the accused, but at a different time. According to him, Shihabudeen was present at that time. He deposed that prior to the arrest of the accused, the vehicle of the accused had hit the vehicle of one Abdul Salam and there arose a dispute. The said Salam informed Shihabudeen, who reached the spot and gave certain directions to the accused. He did not comply with that and it is alleged that Shihabudeen warned the accused of dire consequences. It was contended that, this had resulted in his wrong implication. 11. The learned counsel for the accused contended that the Crl.A.436/2015 8 very fact, that Shihabudeen was actually involved in the search and Mahazar and also present in the court, itself establishes the falsity of the prosecution case. It was further contended the that PW1, who was the detecting officer,himself conducted the substantial part of the investigation and it casts serious doubt on the prosecution case. PW1 admitted that he had completed the substantial part of the investigation. PW7, the Excise Circle Inspector, who succeeded PW1, deposed that he had recorded the statement of witnesses 4 and 8. He verified the statement of PW7 and prepared the complaint under the NDPS Act. It is clear that PW1 had not completely conducted the investigation. Evidently, in any case under the NDPS Act, substantial part of the investigation will be over with the search and seizure. In the case at hand also the same procedure happened. Hence, I do not find any merit in the contention set up by the learned counsel for the accused. 12. The prosecution relied on the available materials to contend that there was strict compliance of the mandatory provision of Sections 42, 50 & 57 of the NDPS Act. Ext.P10 coupled with the oral testimony of PWs 1 and 2 indicate that the Crl.A.436/2015 9 intimation was given by the detecting officer to the Excise Assistant Commissioner. PW2 admitted the receipt of it. In Ext.P2, it is specifically stated that the offer was made to the accused to have the presence of the Gazetted Officer or a Judicial Magistrate of his choice. This is spoken to by PW1,PW2 and PW4. This evidence also established the fact that there was strict compliance of Section 50 of the NDPS Act. Ext.P11 is the notice issued to the Deputy Commissioner of Excise by PW1 in compliance of Section 57. 13. The learned counsel for the accused contended that the evidence tendered by the prosecution is shaky for the reason that the prosecution case does not tally with Ext.P2 mahazar as well as Ext.P17 location map prepared by PW6, the village officer. According to the learned counsel, the very contention of the accused, that the prosecution had laid a false case even without visiting the alleged spot, is clear from the fact that the place of the incident, as mentioned in Ext.P2, does not tally with the sketch. Ext.P2 seizure mahazar states that the place of incident was on the estate road, which was lying east west. The exact place of location is mentioned as a spot, which is 15 meters Crl.A.436/2015 10 east of Mylapore -Thykkavu junction near the transformer situated on the northern side of the road. It was contended that as per the sketch, the transformer was on the southern side of the road and the place of the incident, according to the prosecution, was also on the southern side of the road and not on the northern side, which was across the road. This was suggested to PW1, who denied the suggestion. PW6, the superintendent of Collectorate who prepared the plan, had stated that he had prepared Ext.P16 plan on the basis of Ext.P2 mahazar. He deposed that the transformer was on the northern side of the road. He further deposed that he had only located the transformer in the location map. 14. Evidently, the place of the incident was mentioned in Ext.P2 mahazar. Reference to Ext.P17 sketch, indicates that on the southern side of the road, transformer is marked in yellow colour with the number of the transformer being given. Admittedly, the road is lying east west. According to the prosecution case, the transformer is on the northern side of the road and the accused was found near the transformer on the northern side of the road. It was further contended that the Crl.A.436/2015 11 Thykkavu junction was further south of the place of the incident. A close perusal of the location sketch, clearly shows that the contention of the learned counsel for the accused is not correct. The exact place in the scene mahazar is not 50 meters east of Thykkavu junction, but it is 50 meters east of Mylapore - Thykkavu junction. Evidently, Thykkavu junction is further south of the Mylapore road. However, Mylapore road lies east- west and Thykkavu road lies north - south. The junction is the place where both the above roads meet. Further, on the northern side of Mylapore - Thykkavu road, the actual spot is located in the sketch in yellow colour. Evidently, that was the location of transformer and the index of that is seen mentioned on the southern side of the road. The learned counsel for the accused assumed that the above index was the location of the transformer, whereas the above materials clearly show that the transformer is situated on the northern side of the road and the place of the incident is near to it on the northern side. Hence, there is no contradiction in the prosecution case. 15. Yet another contention of the learned counsel for the accused was that the prosecution failed to produce MOs in the Crl.A.436/2015 12 court. Referring to Ext.P2 seizure mahazar, it was contended that Ext.P2 shows that two packets containing ten ampules each and one packet of 5 ampule and one loose packet, were recovered. The loose ampule was taken as a sample and two others from a set of five ampules. All the ampules were wrapped and fixed with tape. Remaining contraband were wrapped in thermocol box and affixed with cello tape and thereafter wrapped with brown paper tied and sealed. Thereafter, labels were affixed on it. According to the learned counsel for the accused, at the time of evidence another set of ampules were produced. The prosecution has a case that due to passage of time, covering of contraband got damaged and the seal got removed. PW1 was cross examined touching on it. It was contended by the learned counsel for the accused that even going by the prosecution case, contraband items produced in the court were different and in the absence of label, it cannot be believed the godown keeper could identify the actual contraband. It was also further stated that if the contraband produced were different, it has to be assumed that contraband articles were not produced and hence no reliance can be placed Crl.A.436/2015 13 on the prosecution. To substantiate the above contention, the learned counsel relied on the decision of the Supreme Court in **Jitendra v. State of M.P.(2004 KHC 247)** and **Ashok @ Dangra Jaiswal v. State of M.P.(2011 KHC 4342).** In both the cases it was held that when the seized articles were not produced during the trial and no explanation was offered, conviction based on the mere oral evidence regarding their features and production of Panchnama does not discharge the heavy burden which lies on the prosecution. 16. To substantiate the case of the prosecution, they relied on the oral testimony of PW9. He was the godown keeper of Special Armed Police, Thiruvananthapurm, in charge of the NDPS godown. According to him, he had sent Exts.P21 report to the court. He deposed that the above godown was used to keep materials brought from three different districts from 2002 onwards, that it was an old tiled building and that at times samples were damaged by white ants and rodents. He further deposed that when MOs in this case were taken, it was found that thermocol coverings were damaged by rodents, brown paper wrapping was destroyed and got removed. Hence, it was Crl.A.436/2015 14 wrapped newly and produced. Ext.P22 dated 1/6/2010 was the acknowledgment of receipt of MOs in T.R.No.175/2010 in Crime No. 1/2010. The godown receipt was dated 1/6/2010. The above godown receipt of the concerned officer shows that the sealed packet was received and entered in the godown register vide entry No.330. Witness was examined touching upon the above contention of the accused. He was cross examined as to how the contraband could be identified if the seal was removed. PW9 asserted that he could identify the contraband automatically. He added that when items are received, godown numbers are assigned to it. 17. Material on record shows that the contraband articles were produced in a sealed cover in the court and were retained in safe custody in the above godown. PW9, on the basis of Ext.P21 and P22, has convincingly deposed that the contraband articles were kept in safe custody, but the wrapping were damaged. Hence there is nothing to show that totally different contraband articles were produced and thereby, to imply that there was no production of contraband articles. 18. An appreciation of the entire facts lead to a definite Crl.A.436/2015 15 conclusion that the prosecution case remains unassailable and the various contentions raised by the learned counsel for the accused are not sustainable. This Court held that the prosecution has succeeded in proving the guilt of the accused by definite cogent evidence. I find no reason to take a different view from that taken from the trial court. Hence, the conviction entered into by the trial court is only to be sustained. 19. The allegation against the accused is very serious. Considering the nature of the allegation, I am not inclined to interfere with the sentence imposed by the court below which seems to be commensurate with the seriousness of the guilt proved. In the light of the above, the appeal fails and dismissed. ## **Sd/-** **SUNIL THOMAS Judge** dpk /True copy/ PS to Judge. Crl.A.436/2015 16