Muhammed Jabir v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 16TH DAY OF JUNE 2020 / 26TH JYAISHTA, 1942** ## **CRL.A.No.1531 OF 2019** **SC 556/2019 OF THE ADDITIONAL SESSIONS JUDGE - IV, THIRUVANANTHAPURAM DATED 13/12/2019** **APPELLANT/ACCUSED:** **MUHAMMED JABIR, AGED 26 YEARS S/O SALARPASHA NAGANA HALLI DESOM AND VILLAGE BELOOR TALUK, HASSAN DISTRICT, KARNATAKA STATE.** **BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR** **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031.** **SRI.SANTHOSH PETER SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09.06.2020, THE COURT ON 16.06.2020 DELIVERED THE FOLLOWING:** Crl.A.No.1531/2019 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.A.No.1531 of 2019 ------------------------------------------Dated this the 16[th] day of June, 2020 ## **J U D G M E N T** The appellant is a person hailing from Hassan District in Karnataka. He was accused of possessing 250 grams of Methylenedioxy-Methamphetamine(MDMA), intended for sale. He was tried for committing an offence punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') and convicted and sentenced thereunder. 2. The prosecution case, in brief, is as follows: On 05.10.2018, at 08.10 hours, T.K.Midhun (PW4), the Sub Inspector of Vanchiyoor police station, got reliable information that a person was standing near Pettah Railway Hospital with a plastic cover containing narcotic drug. PW4 informed the matter Crl.A.No.1531/2019 3 to the Inspector of Police and entered the information received by him in the general diary and proceeded to the spot with police party. When he reached the spot at 08.30 hours, he saw the appellant standing at the side of the road with a plastic cover in his hand. On seeing the police party, the appellant started to leave the place but PW4 obstructed him. PW4 told the appellant that his body had to be searched and he had the right to demand the presence of a gazetted officer or a Magistrate for that purpose. The appellant demanded the presence of a gazetted officer. PW4 obtained the presence of the Excise Circle Inspector (PW8) and conducted search of the body of the appellant. No contraband article was found on conducting search of the body of the appellant but a mobile phone, some money and documents were found. Thereafter, PW4 inspected the plastic cover which was held by the appellant. There was a polythene cover inside the plastic cover and it contained a white coloured substance. At the request of PW4, an Assistant Sub Inspector from the Police Control Room reached the spot with a narcotic drugs detection kit. He examined the substance and opined that it was MDMA. Crl.A.No.1531/2019 4 PW4 arrested the appellant at 09.35 hours. After ascertaining the weight of the contraband substance as 250 grams, PW4 packed and sealed it and seized it as per Ext.P7 mahazar. 3. On returning to the police station with the appellant and the material objects, PW4 registered Ext.P15 first information report in the matter. The initial investigation of the case was conducted by PW15 Inspector of Police and further investigation was conducted by PW17 Assistant Commissioner of Police. After completing the investigation, PW19 Assistant Commissioner of Police filed final report against the appellant/accused for the offences punishable under Sections 22(c) and 29 of the Act. The appellant figured as the first accused and another person figured as the second accused in the final report in which it was alleged that the second accused was the person who entrusted the psychotropic substance with the appellant for sale. 4. Only the appellant, who is the first accused, faced trial in the case. He pleaded not guilty to the charge framed against him by the trial court under Sections 22(c) and 29 of the Act. Crl.A.No.1531/2019 5 5. During the trial of the case, the prosecution examined PW1 to PW20 and marked Exts.P1 to P35 documents and MO1 to MO13 material objects. On the side of the appellant, DW1 to DW3 were examined and Exts.D1 and D2 series documents were marked. Ext.X1 series documents were also marked in the case. 6. The trial court found the appellant guilty of only the offence punishable under Section 22(c) of the Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of one year. Conviction and sentence recorded against him by the trial court are challenged in this appeal by the first accused. 7. Heard the learned counsel for the appellant and also the learned Public Prosecutor. Perused the records. 8. The prosecution case against the appellant mainly hinges on the testimony of PW4 Sub Inspector, the detecting officer. The trial court has narrated the testimony of PW4 in detail in paragraph 10 of its judgment. It is, therefore, unnecessary to Crl.A.No.1531/2019 6 repeat the same here. Suffice it to state that PW4 has sworn to the entire incident in detail, narrating each and every step taken by him from the time of getting information regarding the offence till the production of the material objects in the court. 9. PW8 is the Excise Circle Inspector who had reached the scene of the incident at the request of PW4. PW11 is the Senior Civil Police Officer who was a member of the police party led by PW4. They have also given evidence regarding the recovery of the contraband substance from the possession of the appellant. 10. The plea of the appellant in the statement filed by him under Section 313(5) Cr.P.C is as follows: He is a real estate agent. On 03.10.2018, at 14.00 hours, he went to Room No.301 of the Everest Comfort Hotel in Bangalore to meet a client. There were police officers in the room. They apprehended him stating that he is the aide of the person who was staying in that room and who was conducting drug business. They took him to Thiruvananthapuram in a van. On the way, they compelled him to withdraw money from the bank using ATM cards. The prosecution case is not true and he is totally innocent. Crl.A.No.1531/2019 7 11. Sri.Sasthamangalam S. Ajithkumar, learned counsel for the appellant has raised several contentions to challenge the conviction entered against the appellant by the trial court. Most of these contentions relate to the procedural formalities under the Act to be complied with in conducting search and seizure. However, learned counsel has also raised a very pertinent contention that Ext.P23 chemical examination report would not show that the substance allegedly seized from the possession of the appellant is a psychotropic substance mentioned in the Schedule of the Act. Since a finding on the merits of this contention would be of decisive relevance in sustaining or overturning the conviction recorded against the appellant by the trial court, I intend to examine it at the outset. 12. The properties seized, including the alleged contraband substance, were produced by PW4 Sub Inspector before the Magistrate concerned as per Ext.P16 property list. Ext.P16 bears the initials of the learned Magistrate with the date 05.10.2018 and the time 06.50 p.m. It means that the properties were produced before the Magistrate on the date of occurrence itself, Crl.A.No.1531/2019 8 that is, 05.10.2018. 13. Ext.X1 file relates to the preparation of inventory and taking of samples by the learned Magistrate. Of course, in the report of the learned Magistrate in Ext.X1 file, he has stated that the properties were produced before the court on 22.10.2018, along with the F.I.R and the accused. Ex.P18 application for remanding the accused was submitted before the court on 05.10.2018. As rightly observed by the trial court, the date shown as 22.10.2018 in the report in Ext.X1 file is a typographical error. At any rate, in view of the endorsement of the learned Magistrate on Ext.P16 property list, there can be no doubt with regard to the fact that the properties were produced before him on the date of the occurrence itself. 14. Of course, Ext.P16 bears another endorsement dated 25.10.2018 that “Verify and receive”. This endorsement is presumably made by the learned Sessions Judge at the time of production of the properties before the Sessions Court. 15. The prosecution examined the property clerk of the Magistrate's Court as PW18. She deposed that she had verified Crl.A.No.1531/2019 9 and received the properties in the case as per the order dated 05.10.2018 of the learned Magistrate. She also deposed that the seal and the labels on the properties were intact at that time. She further deposed that samples were taken by the Magistrate on 08.10.2018 and the properties were forwarded to the Sessions Court. PW18 has also stated that, from the date 05.10.2018 till the date they were sent to the Sessions Court, they were in her custody. 16. PW18 has stated on cross-examination that, when the properties, which have to be sent to the Sessions Court, are received in the Magistrate's Court, the receipt of the properties would not be recorded there. Learned counsel for the appellant would rely upon this statement made by PW18 to contend that the properties were not produced before the Magistrate's Court. This contention overlooks the endorsement made by the learned Magistrate on Ext.P16 property list regarding production of the properties on 05.10.2018 before him. Even assuming that no record was made in the Magistrate's Court regarding the receipt of the properties, the endorsement made by the learned Crl.A.No.1531/2019 10 Magistrate on Ext.P16 property list proves the production of the properties before him at 06.50 p.m on 05.10.2018. 17. Section 52A of the Act provides for drawing samples of the narcotic drug or psychotropic substance in the presence of the Magistrate. It also provides that any list of samples so drawn and certified by the Magistrate shall be treated as primary evidence in respect of the offence. The process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct (See **Union of India v. Mohanlal : (2016) 3 SCC 379)** . 18. In the instant case, the evidence of PW13 Magistrate and Ext.X1 file would show that the samples were drawn in the presence of the Magistrate and the inventory of the articles seized was certified by the Magistrate under Section 52A of the Act before sending the properties to the Sessions Court. 19. Ext.P28, the copy of the forwarding note for sending sample for chemical examination, would show that the sample drawn in the presence of the Magistrate was at first forwarded to Crl.A.No.1531/2019 11 the Forensic Science Laboratory, Thiruvananthapuram for analysis. However, Ext.P25 letter addressed to the Sessions Judge by the Director of the Forensic Science Laboratory, Thiruvananthapuram shows that, the sample was returned without conducting analysis. The reason for returning the sample is stated in Ext.P25 letter as follows: _“On verification it is seen that the nature of examination requested is whether the sample is MDMA or not. The MO suspected to be MDMA requires sophisticated instruments like GC-MS, FFIR, UV – visible spectro photometer, etc. But examination in FFIR and UV – visible spectro photometer can be conducted only with reference sample. At present reference sample and GC MS are not available in the concerned division of our laboratory”._ 20. Ext. P30 forwarding note would show that the sample was then sent to the Regional Forensic Science Laboratory, Kannur for analysis. 21. Ext.P23 is the certificate issued by PW9 Scientific Officer (Chemistry), who was attached to the Regional Forensic Science Laboratory, Kannur after examination of the sample sent from Crl.A.No.1531/2019 12 the court. The result of examination is stated in Ext.P23 certificate as follows: ''The Material Object is MDMA (Methylenedioxymethamfetamine)”. 22. The appellant is alleged to have committed an offence punishable under Section 22(c) of the Act. Section 8(c) of the Act provides that, no person shall produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import interstate, export inter-state, import into India, export from India or transship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of the Act or the rules or orders made thereunder. Section 22 of the Act provides the punishment for contravention in relation to psychotropic substances. Section 2(xxiii) of the Act states that 'psychotropic substance' means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule. Therefore, in order to convict a person for an offence under Section 22(c) of the Act, the prosecution has to prove that he Crl.A.No.1531/2019 13 had dealt with any of the psychotropic substances mentioned in the Schedule of the Act. 23. In the Schedule of the Act, which mentions the list of psychotropic substances, MDMA is shown as item No.80. But, its chemical name is shown as “(±)-N, alpha-dimethyl-3, 4- (methylene-dioxy) phenethylamine”. 24. The Central Government has issued a notification as S.O.1055 (E), dated 19.10.2001 and published in the Gazette of India dated 19.10.2001 fixing the small quantity and commercial quantity of narcotic drugs and psychotropic substances. MDMA figures as item No.134 in this notification and its chemical name is given therein as “(+)-N, alpha-dimethyl-3, 4-(methylenedioxy) phenethylamine“. 25. As noticed earlier, it is stated in Ext.P23 chemical examination certificate that the sample sent from the court was “MDMA (Methylenedioxymethamfetamine)”. No such chemical name is seen mentioned in the Schedule of the Act or the notification dated 19.10.2001. After hearing the appeal, this Court had reserved judgment in the appeal but the appeal was Crl.A.No.1531/2019 14 re-heard by this Court for a clarification on this point. But, the learned Public Prosecutor could not point out that “Methylenedioxymethamfetamine” mentioned in Ext.P23 certificate is a psychotropic substance mentioned in the Schedule of the Act. 26. The evidence of PW9, who conducted the tests and issued Ext.P23 certificate, does not throw light on the question whether “(methylenedioxy) phenethylamine”, which is the chemical name given in the Schedule of the Act for MDMA and “(Methylenedioxymethamfetamine)” mentioned in Ext.P23 certificate are one and the same substance. 27. At this juncture, the difference in the spelling of the names “Methylenedioxymethamfetamine” (Ext.P23) and “Methylenedioxymethamphetamine” is to be noted. The evidence of PW9 does not throw light on this aspect also. 28. PW9 has stated on cross examination that the carbon bonding/chemical struture of the substance was revealed in the tests conducted. However, Ext.P23 certificate does not show those details. If the work sheet prepared by PW9 is available, it Crl.A.No.1531/2019 15 may contain those details. 29. The defence had raised a specific contention before the trial court that Ext.P23 chemical analysis report will not show that the substance/sample tested was a psychotropic substance as mentioned in the Act. The trial court has dealt with this contention in the following manner: _“Finally the learned defence counsel contended that MDMA, i.e., Methylene Dioxy Methamphetamine stated in Ext.P23 is entirely different from the (+)-N, alpha-dimethyl-3, 4-(methylene-dioxy) phenethylamine stated under Sl.No.134 in the table annexed to NDPS Act. The learned counsel submitted that both are structurally different as well as the composition is different. When Carbon bonding changes the characteristics also changes. I am of the opinion that the contention of the learned counsel is not sustainable. Going by the table, non proprietary name of the article in question is MDMA Ecstacy and its chemical name is (+)-N, alpha-dimethyl-3, 4-(methylene-dioxy) phenethylamine. The second name is approved by the International Union of Pure and Applied Chemistry (IUPAC). Going by the evidence of PW9, the entire sample is MDMA. So_ Crl.A.No.1531/2019 16 _there is no need for reference sample. Reference sample is required for quantification only. Each drug has their unique spectrum. Since, here, the entire sample is MDMA, it can be identified without reference sample. Standard data for the drugs are available. Hence no question of changing carbon bond arises. The evidence tendered by PW9 and Ext.P23 would show that PW9 has conducted three colour test and two instrumental method test. Thus he has followed analytical protocol. Thus the aforesaid tests are sufficient to confirm the presence of MDMA, a Psychotropic substance included in the table annexed to NDPS Act.”_ The discussion as above by the trial court does not specifically meet the contention of the defence that the chemical name of the substance mentioned in Ext.P23 certificate does not tally with the chemical name of MDMA stated in the Schedule of the Act and that Ext.P23 certificate does not reveal the chemical structure of the substance. It is to be noted that the evidence of PW9 is that the carbon bonding/chemical structure of the substance was revealed in the tests conducted. 30. In the aforesaid circumstances, I am of the view that clarification of the entire aspects mentioned above is required Crl.A.No.1531/2019 17 and for that purpose, it is necessary to recall and re-examine PW9 who has issued Ext.P23 chemical examination certificate. If the prosecution or the trial court feels that the work sheet prepared by PW9 has to summoned and admitted in evidence for clarity in the matter, it shall also be done. 31. The punishment for the offence alleged against the accused is stringent and severe. The prosecution under the Act also carries a reverse burden of proof with a culpable mental state of the accused. He is presumed to be guilty consequent to recovery of contraband from him, and it is for him to establish his innocence unlike the normal rule of criminal jurisprudence that an accused is presumed to be innocent unless proved guilty. But that does not absolve the prosecution from establishing a prima facie case, only thereafter the burden shifts to the accused. As there is a reverse burden of proof, the prosecution shall be put to a stricter test and if at any stage, the accused is able to create a reasonable doubt, as a part of his defence, to rebut the presumption of his guilt, the benefit will naturally go to him. But, before giving such benefit to the accused, it is only fair and Crl.A.No.1531/2019 18 proper to give full opportunity to the prosecution to make clarification on any doubtful aspect in the evidence already adduced by it. 32. In the result, the appeal is allowed. The order of conviction and sentence passed against the appellant/accused by the trial court is set aside and the case S.C.No.556/2019 is remanded to the trial court. The trial court shall recall and reexamine the witness PW9 who has issued Ext.P23 chemical examination certificate to get clarification on the points earlier mentioned in this judgment. If the prosecution or the trial court feels that it is necessary to summon the work sheet prepared by PW9 while conducting the tests mentioned in Ext.P23 certificate, it shall be summoned before recalling and re-examining the witness. After such re-examination of the witness, if it becomes necessary to further examine the appellant/accused under Section 313 Cr.P.C, such examination shall be conducted by the trial court. Thereafter, if the appellant/accused wants any further evidence to be adduced on his side, opportunity shall be granted to him for that purpose and the trial court shall dispose of the Crl.A.No.1531/2019 19 case afresh in accordance with law. All contentions by the defence are left open to be decided afresh by the trial court. 33. The appellant/accused is under detention. Therefore, normally, this Court would have fixed a time frame for disposal of the case by the trial court. But, the court has to take judicial notice of the fact that public health emergency due to Covid-19 still exists in the State and that the trial courts are facing many hurdles in the speedy disposal of cases. Therefore, I do not think it proper to fix a time frame for disposal of the case afresh by the trial court. At the same time, I hope and I am confident that the trial court shall take all earnest efforts for the disposal of the case as early as possible. The Registry shall send back the lower court records forthwith without any delay. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** **jsr** **True Copy** **PS to Judge**