Muhammaed Shafi v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **TUESDAY, THE 20TH DAY OF FEBRUARY 2018 / 1ST PHALGUNA, 1939** **AGAINST THE ORDER/JUDGMENT IN SC 83/2016 of SPECIAL COURT (NDPS ACT CASES), VATAKARA DATED 15-02-2017** **CRIME NO. 383/2016 OF PONNANI POLICE STATION , MALAPPURAM** **APPELLANT(S)** **MUHAMMAED SHAFI, S/O BAVA, C.NO.148/17, CENTRAL PRISON, KANNUR** **BY ADV.SRI.P.P.PADMALAYAN (STATE BRIEF)** **RESPONDENT(S):** **STATE OF KERALA** **BY PUBLIC PROSECUTOR SMT. K.K. SHEEBA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SHG/** ## **K.P. JYOTHINDRANATH, J.** **- - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.717 of 2017** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of February, 2018** ## **J U D G M E N T** This jail appeal is filed by the accused in SC 83/2016 on the files of the of Special Court (NDPS Act Cases), Vatakara. 2. When this appeal came up for hearing, Advocate Sri. P.P. Padmalayan appearing for the appellant as State Brief posed a pertinent question before this court that in compliance of Section 50 of the NDPS Act, when the presence of a gazetted officer was demanded and on the same a gazetted officer was brought in and a personal search was conducted, whether non-examination of the said gazetted officer will be fatal to the prosecution. 3. The facts shorn of unnecessary details are as follows: On 28.4.2016 at about 16.45 hours, the Sub Inspector of Police, Ponnani Police Station received a credible information that a person wearing blue jeans and black 2 Crl.A.No.717 of 2017 and red coloured check shirt, brought ganja for sale in a white plastic cover on a motor bike. He recorded the said information in the G.D., prepared a report in compliance of Section 42 of the NDPS Act and forwarded the same to his superior officer, Circle Inspector, Ponnani. He proceeded to the place of occurrence in his department jeep and found the appellant herein sitting on a motor bike bearing registration KL 54/4621 carrying a white plastic cover. PW1 informed the appellant herein that he was going to conduct his body search and informed his right to get the presence of a magistrate or a gazetted officer. When PW1 expressed his willingness to be searched his body in the presence of a gazetted officer, Tahsildar, Ponnani was requested to be present therein. He reached at the spot at 4.45 pm and thereafter body search of the appellant was conducted in the presence of two witnesses viz., Shafeeq and Shakkeer. Thereon, 1.100 kg ganja was seen in the plastic bag carried by him, it was seized, sampling was 3 Crl.A.No.717 of 2017 done and crime was registered. Prosecution altogether examined 5 witnesses and Exts.P1 to P14 were marked. MOs1 to 4 were also identified. After appreciating the evidence, the court below convicted the accused and sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.20,000/- with default rigorous imprisonment for one month under Section 20(b)(ii)(B) of NDPS Act. The said conviction and sentence is under challenge. 4. As already stated the main point to be considered in this case is whether the non examination of the gazetted officer in whose presence the search was conducted is fatal to the prosecution case. There is no case for the prosecution that the said gazetted officer was not available for examination for specific reasons. 5. In this case, surely, the case of the prosecution is that the seizure was from a bag in the hands of the appellant. Thus, there can be an argument to the effect Crl.A.No.717 of 2017 4 that it is not a seizure on a body search. Surely, the stand of the learned Public Prosecutor is that when the seizure was from a bag that also from the hands of the appellant even though there was a body search even noncompliance of Section 50 of NDPS Act will not affect the seizure. There may be the presence of a gazetted officer. But if only the seizure is from the body of the appellant then only the non-examination of the gazetted officer will effect the conviction. I think this argument will not be an effective one in the light of the decision of the Hon'ble Apex Court in **State of Rajasthan v. Parmanand and Anr. [2014 KHC 4138]** . As per the said decision in paragraph 12 it was held that "thus if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, respondent No.1 5 Crl.A.No.717 of 2017 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No.2 Surajmal was also conducted. Therefore, in light of the judgments of this court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application”. 6. As pointed out in the above referred paragraph itself, while rendering this decision the Apex Court considered an earlier decision of that court in Union of India v. Shah Alam [2009 (16) SCC 644]. Thus what comes out is that even though in this case the case of the prosecution is that the ganja was seen in the bag it can be only considered as recovered/seized on a search of the body coupled with the bag wherein Section 50 of the NDPS Act is mandatory. When the requirement under Section 50 of the Act is mandatory the next point to be considered is that whether it was complied with. Admittedly, as per the prosecution case, the search was conducted in the Crl.A.No.717 of 2017 6 presence of a Tahsildar. I very carefully examined the final report filed by the police in this case. The said Tahsildar was not even seen cited as a charge witness. 7. I also perused Ext.P5, seizure mahazar. Therein no said gazetted officer is not a signatory. Surely it is stated therein that seizure was conducted in the presence of the Tahsildar. Independent witness will not be a substitute for the examination of gazetted officer in whose presence the seizure was allegedly done. Even though PW3, independent witness supported the prosecution, during cross examination he stated that police caught hold of the accused and plastic cover in his hand was opened. PW5, the investigating officer deposed that he recorded the statement of the Tahsildar. But he was not cited as a witness. 8. Thus, as per the discussions above, it can be seen that here is a case where the body search was conducted allegedly by complying the requirements under Crl.A.No.717 of 2017 7 Section 50 of the NDPS Act. The case of the prosecution is that, the body search was conducted in the presence of a Tahsildar. There was a demand from the appellant that the body search has to be conducted in the presence of a gazetted officer and the said requirements were claimed as complied with. 9. It is the bounden duty of the prosecution to examine the the said gazetted officer, as a prosecution witness to show that there was compliance of the requirement under Section 50 of NDPS Act. When the said gazetted officer was not examined before the court and not even cited as a charge witness, no purpose will be even served by a remand. It is also submitted by the learned Counsel appearing as State brief that the appellant had almost undergone his substantive sentence, only few months alone remaining. 10. Thus, it is made clear that in a case where there was a specific demand from the accused that the body 8 Crl.A.No.717 of 2017 search has to be conducted in the presence of a gazetted officer and when the prosecution case is that the body search was conducted in the presence of such a gazetted officer, the non-examination of the such witness/gazetted officer will be fatal to the prosecution. Thus in this case, as the said witness is not examined, it can be only hold that the appellant is entitled for acquittal on the ground that proof regarding compliance of Section 50 of the NDPS Act is lacking. Hence, appeal allowed, conviction and sentence set aside. The appellant shall be forthwith released from the jail. Sd/- ## **K.P.JYOTHINDRANATH, JUDGE** Shg/rk