Moideen @ Bullet S/o Kasim v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **FRIDAY, THE 5[TH] DAY OF AUGUST 2022 / 14TH SRAVANA, 1944** **CRL.A NO. 2126 OF 2007** **AGAINST THE CONVICTION AND SENTENCE PASSED IN JUDGMENT DATED** **31.10.2007, BY THE SPECIAL JUDGE FOR NDPS ACT CASES, THODUPUZHA IN** **S.C.(NDPS)NO.1 OF 2007.** ## **APPELLANT/ACCUSED:** **MOIDEEN @ BULLET S/O. KASIM, NEDUVELIKIZHAKKETHIL HOUSE, LAKSHAM VEEDU COLONY, ADIMALY KARA, MANNAMKANDAM VILLAGE. BY ADV S.RAJEEV** ## **RESPONDENT/STATE:** **STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. (CRIME NO.129 OF 2007 OF ADIMALY POLICE STATION) BY ADV.SMT.M.N.MAYA, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 29.07.2022, THE COURT ON 05.08.2022 DELIVERED THE FOLLOWING:** 2 **Crl.Appeal No.2126 of 2007** ## **C.S.SUDHA, J.** **-----------------------------------------Crl.Appeal No.2126 of 2007 ----------------------------------------------------Dated this the 5[th] day of August, 2022** ## **J U D G M E N T** In this appeal filed under Section 374(2) Cr.P.C, the appellant who is the accused in S.C.(NDPS)No.1/2007 on the file of the Special Judge for NDPS Act Cases, Thodupuzha, challenges the conviction entered and sentence passed against him for the offence punishable under Section 20(b) (ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act). 2. The prosecution case is that on 09/04/2006 at 06:15 a.m., PW1, the then Sub Inspector of Police, Adimali Police Station, received confidential information that the accused is in possession of ganja, which he has stored in his residential house at Lakshamveedu Colony, Adimali. PW1 made necessary entries in the G.D., the relevant extract of which is Ext.P1. He then immediately sent Ext.P2 report under Section 42 of the Act to PW8, the then Circle Inspector, Adimali and obtained his permission to initiate necessary steps in the matter. He prepared Ext.P3 search memo, forwarded the same to the court through a Police Constable and then proceeded to the 3 ## **Crl.Appeal No.2126 of 2007** house of the accused and conducted search in the presence of independent witnesses. On search, he found ganja packed in a plastic cover meant for sale stored in the toilet of the house of the accused. The contraband was seized and on weighing the same, it was found to have a weight of 1.250 kgs. The accused was arrested, sampling was done and after completing the formalities of arrest and sampling, he along with the accused, the contraband articles and the connected records returned to the Police Station and registered Crime No.129/2006, i.e., Ext.P10 FIR. The investigation was conducted by PW8 and the final report submitted alleging the commission of the offence under Section 20(b)(ii)(B) of the Act. Hence the accused is alleged to have committed the offence punishable under the above mentioned Section. 3. On appearance of the accused before the court below, copies of all the prosecution records were given to him. On 22/06/2007 a charge under Section 20(b)(ii)(B) of the Act was framed, read over and explained to the accused to which he pleaded not guilty. On behalf of the prosecution, PWs.1 to 8 were examined, Exts.P1 to P20 and MOs. 1 to 3 were got marked in support of the case. 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 4 ## **Crl.Appeal No.2126 of 2007** prosecution. The accused denied those circumstances and maintained his innocence. 4. 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 defense and adduce evidence in support thereof. No oral or documentary evidence was adduced by the accused. 5. 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 undergo rigorous imprisonment for two years and to pay a fine of Rs.25,000/- and in default of payment of fine to undergo rigorous imprisonment for six months for the offence punishable under Section 20(b)(ii)(B) of the Act. 6. 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. 7. Heard Sri.S.Rajeev, the learned counsel for the appellant and Ms.N.M.Maya, the learned Public Prosecutor. 8. It is argued on behalf of the appellant/accused that the prosecution has failed to prove either the possession or ownership of the building from where the contraband is alleged to have been seized. Hence it 5 ## **Crl.Appeal No.2126 of 2007** is contended that the prosecution has failed to establish the link between the accused and the contraband. 9. As is usual, in the case on hand also, there is only the testimony of the official witnesses in support of the prosecution case. All the independent witnesses have turned hostile. It is true that merely because the independent witnesses have refused to support the prosecution case, the same is no ground to reject the entire prosecution story, provided the testimony of the official witnesses is credible and trustworthy. According to PW1, the Detecting Officer, the accused was present when he and his team reached the house of the accused. In the presence of the accused and independent witnesses, he stated that they had seized the contraband, that is, 1.250 kgs of ganja, which was seized as per Ext.P9 seizure mahazar. According to PW1, MOs.1 to 3 are the material objects in this case. Ext.P7 is the slip which contains his signature as well as the signatures of the accused and the independent witnesses. Ext.P8 is the label that had been fixed on the sample packet. Ext.P9 seizure mahazar contains the sample seal also. Ext.P10 is the FIR prepared by him. MOs.1 to 3 were produced before the court as per Ext.P11 property list. Ext.P12 is the copy of the forwarding note submitted to the court requesting forwarding of the sample for chemical examination. PW1 further deposed that Ext.P13 is the report sent by him 6 ## **Crl.Appeal No.2126 of 2007** under Section 57 of the Act to PW8. 9.1. PW7, a Police Constable of the Adimali Police Station who is alleged to have accompanied PW1, more or less supports the prosecution story. PWs.2, 3 and 4 are the independent witnesses. PW2 though admits that he is an attestor to Ext.P9 seizure mahazar, denied having seen the incident or having given any statement to the Police to that effect. PW3 also admits his signature in Exts.P7 and P8. He also denied having seen the incident or having stated to the Police that he had seen the incident. PW4 another independent witness also turned hostile and denied having seen the incident. 9.2. PW5 is the then Secretary, Adimali Grama Panchayat, who deposed that on the request of the Investigating Officer in this case, he had issued Ext.P17 certificate certifying the fact that the accused and family are residing in building bearing number X/109(05) situated in Lakshamveedu colony, Adimali. PW6, the then Village Officer, Mannaamkandam, deposed that on the request of the Investigating Officer he had prepared Ext.P18 rough sketch and he had also issued Ext.P19 certifying the fact that the accused is residing in building bearing number X/109(5) situated in Lakshamveedu colony, Mannaamkandam Village. 9.3. Finally, PW8 the then Circle Inspector, Adimali Police Station, 7 ## **Crl.Appeal No.2126 of 2007** deposed that on 10/04/2006 he had taken over the investigation in this case, questioned the witnesses, recorded their statements and had obtained Exts.P17 to P19 certificates from the Officers concerned. Ext.P20 is the chemical analysis report of the contraband in this case. 10. To prove possession, the prosecution relies on the testimony of PWs.5 and 6 and Exts.P17 and P19. The court below also accepted the same. In the impugned judgment, it is stated that the testimony of PWs.5 and 6 coupled with Exts.P17 and P19 certificates and Ext.P18 sketch establish the fact that the toilet from where the contraband was seized, forms part and parcel of the house of the accused and that the house to which the toilet is attached, is in the possession of the accused. This finding of the court below is incorrect because Exts.P17 and P19 certificates are inadmissible in evidence. They are obviously and apparently statements given by the witnesses in writing to PW8, the Investigating Officer, during the course of investigation and hence the bar under the proviso to Section 162 Cr.P.C. comes into play. PW5 and PW6 admit that these certificates were given on the request of the Investigating Officer. Exts.P17 and P19 are not extracts of the registers from which the information contained therein has been taken. The prosecution has not produced the register(s) from which the information contained in Exts.P17 and P19 has been taken. Hence, Exts.P17 and P19 8 ## **Crl.Appeal No.2126 of 2007** are inadmissible in evidence. (See **Sasi vs. State of Kerala, 2019 KHC 465** ). Therefore, possession cannot be established on the basis of the aforesaid inadmissible evidence. 11. However, this is not a case where the seizure of the contraband article is alleged to have been made from a vacant building or plot. According to PWs.1 and 7, the accused was very much present at the house from where the contraband article had been seized. As per the final report, the contraband was seized from the toilet attached to the residential building bearing number X/109(5) situated in Lakshamveedu colony, Adimali. To prove that the accused had been arrested from the spot, the prosecution relies on Ext.P4 arrest memo. Ext.P4 arrest memo, stated to have been prepared immediately on the arrest of the accused on 09/04/2006, contains the crime number. As pointed out by the learned counsel for the accused, Ext.P4 is alleged to have been prepared by PW1 immediately after the contraband had been seized. The version of PW1 is that on search he had found the contraband article ; he then arrested the accused ; prepared Ext.P4 arrest memo, Ext.P5 inspection memo ; gave Ext.P6 arrest intimation to the wife of the accused ; effected the seizure ; completed the sampling ; seized the article as per Ext.P9 seizure mahazar ; proceeded to the Police Station along with the accused, the contraband articles and connected articles and then 9 ## **Crl.Appeal No.2126 of 2007** registered Ext.P10 FIR on reaching the Police Station. PW1 has no case that he had entered the crime number, ie., 129/2006, in Ext.P4 memo after he had reached the Police Station and registered Ext.P10 FIR. No explanation is given by PW1 as to how the crime number finds a place in Ext.P4 arrest memo, alleged to have been prepared at the scene of occurrence. As PW1 is the police officer who had arrested the accused, registered the crime and prepared Ext.P10 FIR, he is supposed to explain the presence of the crime number in Ext.P4 arrest memo. No explanation is offered by the prosecution with regard to the presence of the crime number of the case in Ext.P4 arrest memo. This creates doubt about the manner in which the seizure and arrest were effected. As held by a learned single Judge of this Court in **Rafeeque v. Sub Inspector of Police, Kunnamkulam Police Station, 2020(3) KHC 715** the presence of the crime number of a case in the arrest memo prepared at the scene of occurrence, in the absence of any explanation offered by the prosecution, gives rise to either of the two inferences, namely, that the FIR was recorded prior to the alleged recovery of the contraband or that the number in the FIR was inserted in the arrest memo after its registration. Both the situations would seriously affect the veracity of the prosecution version of the incident and would create a great deal of doubt about the recovery of the contraband in the manner alleged by the prosecution. (See also **Zofar vs.** 10 **Crl.Appeal No.2126 of 2007** **State, 2000 KHC 2209** ; **Kailash @ Kuddu vs. State of Delhi, 2000 KHC 2334** ; and **Karunakar Bindhani v. State of Kerala, 2016 KHC 758)** . That being the position, the case of arrest at the place of occurrence is doubtful as the accused has taken up a case that he was not present at the place from where the seizure is alleged to have been made and that he had been arrested from his tea shop. 12. The attention of this Court was also drawn to Ext.P12, the copy of the forwarding note submitted by PW1. It was submitted that the forwarding note does not contain the details of the Police Constable who is alleged to have taken it from the court and produced it before the chemical lab for examination. Therefore, relying on the decisions in **Kumaran P. v. State of Kerala** , **2016(5) KHC 632 ; Jayakumar v. State of Kerala, 2018 KHC 3165 ;** and **Thomas @ Joy v. State of Kerala, 2021(5) KHC 410** , it is submitted that the prosecution has failed to prove tamper proof despatch of the sample from the court to the laboratory and hence the same enures to the benefit of the accused and that he is entitled to the benefit of doubt. The argument that the name of the official who is stated to have taken possession of the sample packets from the court and handed over the same to the lab is absent, is apparently incorrect. Ext.P12 forwarding note includes the covering letter of the learned trial Judge to the Joint Chemical Examiner. In 11 ## **Crl.Appeal No.2126 of 2007** the letter it is clearly stated that the sample packet in Crime No.129/2006 of Adimali Police Station, has been handed over to Sri.Philippose, P.C.No1214, the Police Constable attached to the Adimali Police Station. Ext.P12 also contains a receipt signed by the Assistant Examiner to Government of Kerala, which says that the Assistant Chemical Examiner has received from P.C.No.1214, a sealed packet which is the material object in Crime No.129/2006 of Adimali Police Station, which has been forwarded by the Special Judge, NDPS cases, Thodupuzha. In the chemical report marked as Ext.P20 also, the Assistant Chemical Examiner has certified that the sample packet had been received from P.C.No.1214. That being the position, the aforesaid decisions cited are not applicable to the facts of the present case. 13. The arrest and seizure, according to the prosecution is alleged to have taken place on 09/04/2006 at 6.15 a.m. The material objects along with Ext.P11 property list are seen produced before the court on 10/04/2006. Therefore relying on the decision in **Chandran v. State of Kerala, ILR 2022(2) Kerala 807** , it was submitted on behalf of the accused that the delay of one day has not been explained ; that there is also no evidence to show as to how and in what condition the contraband article had been kept and as the prosecution has not been able to explain the delay and prove that the contraband and the sample had been kept in a tamper proof condition, the 12 **Crl.Appeal No.2126 of 2007** accused is entitled to get the benefit of doubt. As stated earlier, the arrest and seizure is alleged to have taken place on 09/04/2006 at 6.15 a.m. The material objects along with Ext.P11 property list is seen produced before the court on 10/04/2006. Apparently, there is one day delay in producing the articles before the court. It is true that mere delay even if long, cannot in all circumstances, lead to the rejection of the prosecution story. The question to be considered is, has the prosecution explained the delay, however short or long ? In the case on hand, no explanation has been furnished by the prosecution for the delay of one day. PW8 the Investigating Officer says that he had not checked the material objects as the same were in the possession and custody of PW1. PW1 in the cross examination deposed that the sample and the contraband were in his safe custody. However, he has not elaborated as to how the same had been kept, in whose custody it was from the time of seizure till it was produced before the court. PW1 also does not explain as to why the same had not been produced before the court concerned on the same day itself. In such circumstances it cannot be concluded that the articles had been in safe custody and had reached the lab tamper proof. The Act provides for stiff sentences. Stiffer the sentence, stiffer is the proof required. This test has not been satisfied in this case by the prosecution and hence for the reasons above discussed, I find that the appellant/accused is 13 ## **Crl.Appeal No.2126 of 2007** entitled to the benefit of doubt as the prosecution has failed to prove the case alleged against the accused beyond reasonable doubt. In the result, the appeal is allowed. The conviction and sentence of the accused for the offence punishable under Section 20(b)(ii)(B) of the Act by the impugned judgment is set aside and the appellant/accused is acquitted under Section 235(1) Cr.PC. His bail bond shall stand cancelled and he shall be set at liberty forthwith. **==> picture [318 x 66] intentionally omitted <==** Sd/- **C.S.SUDHA JUDGE** ami/