Navas v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 6[TH] DAY OF AUGUST 2024 / 15TH SRAVANA, 1946** **CRL.A NO. 2276 OF 2006** **AGAINST THE JUDGMENT DATED 27.03.2006 IN SC NO.810 OF 2004 OF THE II ADDITIONAL SESSIONS JUDGE, THIRUVANANTHAPURAM.** ## **APPELLANT/1ST ACCUSED:** **NAVAS, AGED 30 YEARS, S/O ABDUL KASIM, RESIDING AT T.C. 35/14010, NEAR N.S.DEPOT, VALLAKADAVU WARD, MUTTATHARA VILLAGE.** **BY ADV SRI.K.SATHEESH KUMAR** ## **RESPONDENT/COMPLAINANT:** **THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV SRI.SANAL P.RAJ, PUBLIC PROSECUTOR** ## **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON** **02.08.2024, THE COURT ON 06.08.2024 DELIVERED THE FOLLOWING:** 2 ## **Crl.Appeal No. 2276 of 2006** ## **C.S.SUDHA, J.** **------------------------------------------------------Criminal Appeal No. 2276 of 2006 -----------------------------------------------------Dated this the 6th day of August 2024** ## **J U D G M E N T** In this appeal filed under Section 374(2) Cr.P.C., the appellant who is the first accused in S.C.No.810/2004 on the file of the Court of Session, Thiruvananthapuram challenges the conviction entered and sentence passed against him for the offence punishable under Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act). 2. The prosecution case is that on 01/12/2003 at 15:30 hours, accused nos.1 to 3 were found in possession of 21.840 gms of brown sugar for the purpose of sale at the junction near the mini bypass road situated near the Fathima hospital, Ambalathara, Thiruvananthapuram. The accused had come to the spot in a 3 ## **Crl.Appeal No. 2276 of 2006** maruti car bearing registration no.KL 01 H 2311. Hence, the accused are alleged to have committed the offence punishable under the above mentioned section. 3. On appearance of the accused persons before the trial court, copies of all the relevant prosecution records were furnished to them. On 24/06/2005 a charge under Section 21(b) of the Act read with Section 34 IPC was framed, read over and explained to the accused persons to which they pleaded not guilty. 4. PWs.1 to 7 were examined, Exts.P1 to P6(a) and M.O.1 series to M.O.3 series were got marked on the side of the prosecution. After the close of the prosecution evidence, the accused were questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence of the prosecution. The accused denied all those circumstances and maintained their innocence. 5. As the trial court did not find it a fit case to acquit the 4 ## **Crl.Appeal No. 2276 of 2006** accused under Section 232 Cr.P.C, the accused were asked to enter on their defence and adduce evidence in support thereof. No oral or documentary evidence was adduced by the accused persons. 6. On an appreciation of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment acquitted the second and the third accused under Section 255(1) Cr.P.C.; found the first accused guilty of the offence under Section 21(b) of the Act and hence sentenced him to rigorous imprisonment for two years and to a fine of ₹4,000/and in default of payment of fine to simple imprisonment for four months. Aggrieved, the first accused has come up in appeal . 7. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the accused by the trial court are sustainable or not. 8. When the matter was taken up for hearing, the 5 ## **Crl.Appeal No. 2276 of 2006** accused/appellant never turned up. This Court as per order dated 25/08/2021, directed the SHO concerned to trace out the whereabouts of the accused, pursuant to which notice was issued to him. As per report dated 02/12/2023 filed by the SHO, Poonthura police station, Thiruvananthapuram city, notice is seen served on the accused. However, he never turned up. Hence, relying on the dictum of Apex Court in **Bani Singh v. State of U.P., AIR 1996 SC 2439** this Court is proceeding to consider the appeal on merits after going through the records of the case. 9. Heard advocate Sanal P.Raj, the learned public prosecutor . 10. The prosecution relies on the testimony of PW1, PW4 and PW5 to prove the occurrence. PW5, the then Sub Inspector of police, Poonthura police station, the detecting officer deposed that on 01/12/2003 at about 05:00 p.m., he received reliable information that at Pallithura mini bypass road, three persons were dealing in the sale of narcotic drugs from a maruti van. He 6 ## **Crl.Appeal No. 2276 of 2006** entered the information received in the general diary and also sent a letter to his superior officer regarding the information received. Thereafter, he along with his team proceeded in a police jeep to the place of occurrence, where they found three of the accused persons standing on the road by the side of a maruti car bearing registration no.KL 01 H 2311. When the police team steped out of the jeep, the accused persons tried to run away. However, the police team was able to restrain one of the accused persons, that is, the first accused. The second and the third accused took to their heels and they could not be apprehended then by the police. He then informed the first accused his right of being examined by a gazetted officer or a Magistrate for body search. The first accused never responded and therefore he requested presence of PW6 at the spot for conducting the search. Pursuant to the same, PW6 came to the place of occurrence in whose presence a body search of the first accused was conducted and 21.840 gms of brown sugar was seized from him. The contraband article was 7 ## **Crl.Appeal No. 2276 of 2006** seized, packed, labelled and sealed as per law and he along with the contraband articles and the accused proceeded to the police station and registered crime no.200/2003. Ext.P4 is the FIR. The first accused along with the contraband articles were produced before the court as per Ext.P5 property list. Ext.P6 is the copy of the forwarding note on the basis of which the sample was sent for chemical examination and Ext.P2 is the chemical examination report. Thereafter, he had arrested the second and the third accused also. Ext.P3 is the mahazar relating to the seizure of the car of the accused persons. 11. PW1 is stated to be a police constable who was present in the team along with PW5 during the time of the search and seizure. PW1 as well as PW6 who is stated to have come to the scene at the request of PW5, also support the prosecution case. PW7 the then Circle Inspector, Poonthura stated that he had verified the investigation conducted in this case and submitted the charge sheet before the court. 8 **Crl.Appeal No. 2276 of 2006** 12. It has come out in evidence that there has been non compliance of Section 42(2) of the Act. This has been noticed by the trial court also. However, the trial court held thus: - _“..........even though it is not proved that a report under Section 42(2) of the NDPS Act was sent in this case, and even though Section 161 statement of the Circle Inspector who is the gazetted officer is not seen taken, the detecting officer himself conducting investigation, there is nothing to disbelieve the evidence now tendered before the court. Appreciating all these aspects, it can be seen that prosecution succeeded in proving the possession of the contraband by the accused No.1 and the amount recovered can be persons_ [ _Sic_ ] _to be sale proceeds. ….....”_ 13. Here I refer to the dictum in **Karnail Singh v. State of Haryana, (2009) 8 SCC 539** . In this decision the Apex Court has held that the officer on receiving information of the nature referred to in Sub-section (1) of Section 42 from any person has to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to 9 ## **Crl.Appeal No. 2276 of 2006** take action in terms of clauses (a) to (d) of Section 42(1). The compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and - - expediency. While total non compliance of requirements of Sub sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of S ection 42. For example, if any delay results in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, will not be treated 10 ## **Crl.Appeal No. 2276 of 2006** as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to his superior, then it would be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it would be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. 14. In the present case PW5 has not given any explanation as to why Sub-section (2) of Section 42 of the Act had not been complied with. When it has been found by the trial court there has been non compliance of the said Sub-section for which no reasons are furnished, it can only be held that the same is a suspicious circumstance being a clear violation of Section 42 of 11 ## **Crl.Appeal No. 2276 of 2006** the Act. The Act provides for stiff/severe sentences. Stiffer the sentence, stiffer is the proof required. In these circumstances, it can only be held that the accused is entitled to the benefit of doubt. In the result, the appeal is allowed. The conviction and sentence passed in the impugned judgment is set aside. The accused is acquitted under 235(1) Cr.P.C. His bail bond shall stand cancelled. Interlocutory applications, if any pending, shall stand closed. Sd/- **C.S.SUDHA** **JUDGE** ak