Marshal v. State of Kerala

CR IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 12[TH] DAY OF NOVEMBER 2021 / 21ST KARTHIKA, 1943 CRL.A NO. 335 OF 2015 [CRIME NO.882/2012 OF Ettumanoor Police Station, Kottayam] [AGAINST THE JUDGMENT DATED 24.02.2015 IN SC (NDPS) NO.25/2013 OF SPECIAL COURT (NDPS ACT CASES), THODUPUZHA, IDUKKI] ## APPELLANT/ACCUSED: MARSHAL AGED 27 YEARS S/O.JOHN, AGED 27 YEARS, KARUKAYIL HOUSE, PADINJATTU BHAGAM KARA, ANAMALA BHAGAM, ATHIRAMPUZHA VILLAGE, KOTTAYAM DISTRICT. BY ADV SRI.SAIBY JOSE KIDANGOOR ## RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY THE STATE PROSECUTOR ATTACHED TO THE HIGH COURT OF KERALA. BY SHRI.ARAVIND V. MATHEW, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21.10.2021, THE COURT ON 12.11.2021, DELIVERED THE FOLLOWING: Crl.Appeal No.335/2015 2 ## JUDGMENT The appellant is the sole accused in S.C. (NDPS)No.25/2013 on the file of the Court of the Special Judge for NDPS Act cases, Thodupuzha. This appeal is filed by the appellant challenging the conviction and sentence imposed upon him by the Special Court for the offences punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act (for brevity ‘NDPS Act’) 2. The case of the prosecution is that on 4.7.2012 at 5.30 p.m. near Holly Cross Church at Thellakam, the appellant was found in illegal possession of 48 ampules of Buprenorphine and a disposable syringe. Immediately he was arrested and Crime No.882/2012 was registered by Sub Inspector Crl.Appeal No.335/2015 3 of Police, Ettumanoor. After completion of investigation, the Circle Inspector of Police, Ettumanoor, submitted charge sheet before the Special Court. 3. In support of the prosecution case, PW1 to PW6 were examined, Exhibits P1 to P12 were marked and MO1 to MO8 were identified. After closure of the prosecution case, the incriminating materials revealed during the course of trial were put to the appellant who denied the same and contended that he is innocent of all allegations. 4. After the trial, upon appreciation of materials available on record, the Sessions Court found the appellant guilty of the offence and sentenced him to undergo rigorous imprisonment for 10 years and to pay fine of Crl.Appeal No.335/2015 4 Rs.1,00,000/- with a default sentence of rigorous imprisonment for two years. 5. This appeal is filed by the appellant being aggrieved by the above conviction and sentence. 6. Heard Advocate Sri. Saiby Jose Kidangoor, the learned counsel appearing for the appellant and Sri. Aravind V. Mathew, the learned Public Prosecutor for the respondent. 7. The main contention put forward by the learned counsel for the appellant is that the prosecution failed to establish the compliance of mandatory procedure contemplated under Section 50(1) of the NDPS Act. In view of the non-compliance of the above stipulation contained under Section 50(1) of NDPS Act, the search and seizure at the instance of PW5 is vitiated and, Crl.Appeal No.335/2015 5 therefore, the appellant is entitled for acquittal. In support of his contention, the learned counsel for the appellant relies on the judgments in Vijaysingh Chandubha Jadeja v. State of Gujarat [AIR 2011 SC 77], Ashok Kumar Sharma v. State of Rajasthan [(2013)2 SCC 67], Syed Ali v. State of Kerala [MANU/KE/0185/2020] and Shihab v. S.I. of Police, Kottakkal and Another [2021(2)KLD 588]. 8. In this case, for considering the above issue, the relevant materials required to be considered are Ext.P4 seizure mahazar and the evidence of PW4 and PW5. PW5 is the detecting officer/Sub Inspector of Police, Ettumannor, who deposed as follows: On 4.7.2012 at 5 p.m., he got reliable information that a person wearing blue jeans Crl.Appeal No.335/2015 6 and black shirt was selling drugs near Kurizupally at Thellakam. Upon getting the said information, the same was reduced into writing in the general diary and the copy of such entry was forwarded to the superior officer. Thereafter he along with police party went to the spot and found that the person with the above description was standing on the spot. The police party intercepted him and informed about their suspicion regarding the possession of drugs. He also informed the appellant as to his right to be searched in the presence of a Magistrate or Gazetted Officer to which the appellant opted to have his body searched in the presence of a Gazetted Officer. Accordingly, Excise Inspector, Kottayam was called for by PW5. He came to the spot at Crl.Appeal No.335/2015 7 6.15 p.m. The body search of the accused was conducted in the presence of PW4 during the course of which, from the socks worn by the accused, certain plastic covers containing the contraband articles were found. The aforesaid articles were seized and samples of the same were collected by separately packing and those were sealed. Thereafter, the accused was arrested and the articles and the records were brought to the police station and the case was registered. A report under Section 57 of the Act was sent to superior officer. 9. Exhibit P4 is the mahazar evidencing the search and seizure of the contraband articles. The contents of the same would reveal that when the appellant was being intercepted, PW5 asked him whether he wants to exercise the option to have his body Crl.Appeal No.335/2015 8 searched in the presence of a Magistrate of a Gazetted Officer. The response from the appellant was to conduct the same in the presence of a Gazetted Officer and accordingly the presence of PW4 was secured and the search was conducted in his presence. Thus from the contents of Ext.P4 mahazar, it can be seen that it does not contain any statement which indicates that the appellant was informed that he was having a right to have his body searched in the presence of a Gazetted Officer. On the other hand Ext.P4 only indicates that he was asked whether he wish to have his body searched in the presence of a Gazetted Officer, (without conveying that, it was his statutory right). Exhibit P4 is a contemporaneous document which was prepared at the time of search and Crl.Appeal No.335/2015 9 seizure itself. Even though PW5 has stated during chief examination that, he informed the appellant that he has a right to get his body searched in the presence of a Gazetted Officer, in cross-examination, it was conceded by him that the expression ‘right’ was not conveyed to the appellant. This would clearly indicate that, the appellant was not informed that he was having the right to be searched under the presence of Gazetted officer or Magistrate, as contemplated under Section 50(1) of the NDPS Act, but he was only given the option to have the search conducted in the presence of a Gazetted Officer. Thus it is evident that the appellant was not informed of his right under Section 50(1) of the Act. Crl.Appeal No.335/2015 10 10. However, the crucial question that emerges here is whether, since the body search of the appellant was conducted in the presence of a Gazetted Officer, there is proper compliance of mandatory procedure contemplated under Section 50(1) of the Act or not. It is true that in Vijaysingh Chandubha Jadeja’s case(supra) , a five Judge bench of the Hon’ble Supreme Court categorically settled the controversy with regard to conflicting decisions as to the necessity of informing the accused regarding his right contemplated under Section 50(1) of the Act. It was specifically held that noncompliance of the aforesaid mandatory requirement vitiates the search and the evidence collected through such illegal search cannot be relied upon by the Crl.Appeal No.335/2015 11 prosecution. However, from the perusal of the said judgment, it can be seen that, the principles laid down therein are not with respect to a situation where the search was actually conducted in the presence of a Gazetted Officer. Similarly, in the other judgments relied upon by the learned counsel for the appellant also, the factual circumstances existing therein were that, the accused had given consent for conducting search on his body without the presence of a Gazetted Officer and search was conducted in the absence of Gazetted Officer. It was in that circumstances, it was held in those judgments that there was violation of mandatory stipulation contained in Section 50(1) of the Act. Crl.Appeal No.335/2015 12 11. However, in this case, the evidence available on record in the form of Ext.P4 and the depositions of PW4 and PW5, would indicate that the inspection was conducted in the presence of a Gazetted Officer. The purpose of Section 50 of the Act is to provide an added protection to the persons who are accused of the offences under NDPS Act, which contains very stringent provisions. The maximum protection that can be availed by a person accused of the said offence, as far as the body search is concerned, is to get the search done in the presence of a Gazetted Officer or Magistrate. In order to ensure proper compliance of the aforesaid condition, it is stipulated that the existence of that right should be intimated to the accused before conducting Crl.Appeal No.335/2015 13 the search. This is insisted upon through various judicial pronouncements of the Hon’ble Supreme Court and the High Courts. This is intended to provide a reasonable opportunity to all the persons accused of the offences punishable under NDPS Act, to avail the said protection and no one should be denied of the said protection because of his lack of awareness of existence of such right. Even if the concerned person is informed of his right and he opts for exercising it, the ultimate step that can be taken by the officer concerned, is to ensure the presence of a Gazetted Officer. 12. In this case, as mentioned above, the presence of PW4 Gazetted Officer is secured by the detecting officer and the search was conducted. Thus, since the maximum protection Crl.Appeal No.335/2015 14 as contemplated under Section 50(1) is already provided to the appellant by securing the presence of a Gazetted Officer, the fact that he was not informed of his statutory right, has lost its significance. In other words, the question whether he was informed of his right or not, becomes immaterial as he was provided with the maximum protection available under the said provision. In such circumstances, I am of the view that there is compliance of Section 50(1) of the NDPS Act. Merely because of the reason that the appellant was not informed of his right under Section 50(1), it cannot be concluded that there was non-compliance vitiating the search and further proceedings based on the same. 13. There is yet another aspect which fortifies the above finding. I have already Crl.Appeal No.335/2015 15 found that, the maximum protection provided to the accused under Section 50(1) has been extended to the appellant herein. In such circumstances, the fact of not informing as to the existence of his right under Section 50(1) of the Act has not resulted any prejudice to the accused. Mere technical lapse on the part of the detecting officer cannot be treated as a valid ground, vitiating the search, when it is found that the protection guaranteed under the statute is already extended to the person concerned. In this case, by virtue of extending the maximum protection under Section 50(1) of the Act, the technical lapses of not informing as to the existence of his right is not at all material and under no circumstances it can be held that it vitiates the search and seizure. Crl.Appeal No.335/2015 16 In the light of the aforesaid findings, the irresistible conclusion possible is that there is proper compliance of Section 50(1) of the NDPS Act. 14. In this regard, the learned counsel for the appellant further contended that he had specifically disputed the presence of PW4 (Gazetted Officer) on the spot at the time of search. The learned counsel also brought my attention to the suggestion put by the counsel for the appellant to PW4 in this regard during cross examination. Evidence of PW1 and PW2 who are independent witnesses to prove Ext.P4 mahazar and turned hostile to the prosecution, were also relied upon. It was contended that, in the absence of any independent witnesses, sustainability of search cannot be accepted merely on the Crl.Appeal No.335/2015 17 evidence of PW4 and PW5. It is also contended that, the fact that the appellant was not informed of his right under Section 50(1) of the Act assumes significance in view of his dispute as to the presence of the Gazetted Officer on the spot. 15. I am unable to find any connection between the question of non-mentioning of right under Section 50(1) of the Act to the appellant and the dispute relating to the presence of PW4 on the spot, in the factual back ground of this case. Both are two different aspects which are to be dealt with separately. I have already found that the non mentioning of existence of his right is not material in the circumstances mentioned above. With regard to the dispute raised by the appellant as to the presence of PW4, Crl.Appeal No.335/2015 18 apart from the mere suggestion put forward by the learned counsel during the crossexamination of PW4, there is absolutely no material in support of the same. On the other hand, the evidence of PW4 and PW5 are consistent on this point. Exhibit P4 which is a contemporaneous document, contains specific statements supporting the said aspect, as well. Merely because of the reason that independent witnesses were turned hostile, the evidence of official witnesses cannot be discarded. In NCT of Delhi v. Sunil [(2001)1 SCC 652], the Hon’ble Supreme Court was pleased to held as follows: “ _It is an archaic notion that actions of the police officer should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the Court cannot start with the presumption that the police records are_ Crl.Appeal No.335/2015 19 _untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature.”_ By placing reliance upon observations made in the above case, in Rizwan Khan v. State of Chhattisgarh [(2020)9 SCC 627], it was observed by the Hon’ble Supreme Court that the examination of independent witnesses is not an indispensable requirement and such non-examination is not necessarily fatal to the prosecution case. Similarly, in Surinder Kumar v. State of Punjab [(2020)2 SCC 563] , the Hon’ble Supreme Court observed that the evidence of official witnesses cannot be distrusted and disbelieved merely on account of their official status. 16. In the light of the aforesaid judicial pronouncements, I have no hesitation Crl.Appeal No.335/2015 20 to conclude that mere hostility of the independent witnesses cannot lead to the finding as to the lack of creditworthiness of official witnesses. If the evidence of official witnesses are consistent and trustworthy, the same can be relied upon even if the independent witnesses examined to prove the search were turned hostile to the prosecution. In this case, I have carefully scrutinized the evidence of PW4 and PW5. Even though they were cross-examined by the defence at length, their credibility could not be shattered and in such circumstances, I have no hesitation to conclude that in the absence of any discrepancy in the evidence of PW4 and PW5, it is a valuable piece of evidence to establish the factum of search Crl.Appeal No.335/2015 21 and also as to the presence of PW4 on the spot. 17. In the light of the above observations, I do not find any merit in the appeal and accordingly the appeal is dismissed by confirming the conviction and sentence imposed by the Court of Special Judge for NDPS Cases, Thodupuzha, as per the judgment dated 24.02.2015 in SC (NDPS)No. 25/2013. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk