Nishan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 5[TH] DAY OF JANUARY 2024 / 15TH POUSHA, 1945** **CRL.A NO. 1429 OF 2019** **AGAINST THE JUDGMENT IN SC.682/2016 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT-VI, KOLLAM** ## **APPELLANT/ACCUSED:** **NISHAN, AGED 26 YEARS S/O.FIROZ KHAN, ARAFA MANZIL, PUNUKKANNOOR MURI, ELAMPALLOOR VILLAGE, KOLLAM.** **BY ADVS. MATHEW kURIAKOSE J.KRISHNAKUMAR (ADOOR)(K/731/2011) PRATHEESH MOHAN(K/585/2013) MONI GEORGE(K/1593/2019)** ## **RESPONDENT/COMPLAINANT:** - **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM -682 031.** - **2 THE INSPECTOR OF EXCISE, EXCISE RANGE OFFICE, KOLLAM - 689 696.** **BY SRI.N.R. SANGEETH RAJ, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A. No.1429/2019 : 2 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` Criminal Appeal No.1429 of 2019 ````````````````````````````````````````````````````````````` _Dated this the 5[th] day of January, 2024_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The accused in Sessions Case No.682/2016 on the files of the Court of the Additional District and Sessions Judge-VI, Kollam, who is prosecuted for offence punishable under Section 20(b)(ii)(C) of the NDPS Act and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of ₹1,00,000/-, is in appeal invoking Section 374(2) of the Code of Criminal Procedure, 1973. 2. The prosecution alleged that on 05.07.2011 at about 9 pm, PW1 Excise Circle Inspector of Kollam Excise Range received telephonic information that the appellant was possessing Ganja in an airbag and suitcase and is standing in front of the Kurishadi, opposite to the KSRTC bus stand at Crl.A. No.1429/2019 : 3 : Kollam. PW1 recorded the information, informed his superior officer and proceeded to the said place. The appellant was found possessing an airbag in his hand and a suitcase which was kept nearby him. On interception and interrogation, the appellant became perplexed and disclosed that the airbag and suitcase contained Ganja. 3. PW1 procured the presence of PW8 Assistant Excise Commissioner, Kollam and after informing the appellant about his right to be searched under Section 50 of the NDPS Act, conducted body search of the appellant. Currency notes worth ₹40/- and two train tickets and a bus ticket and luggage ticket were recovered from the shirt pocket of the appellant. On inspection of the suitcase and airbag, it was found that both contained a total of 31.250 Kg. of Ganja. PW1 took samples of Ganja, packed and sealed the samples as per law and arrested the appellant from the scene of occurrence. Contraband and samples were produced in the court along with requisition to send the samples for forensic examination. PW10 conducted a part of Crl.A. No.1429/2019 : 4 : the investigation and PW7 completed the investigation and filed Final Report against the appellant. 4. The prosecution examined PWs 1 to 10 and marked Exts.P1 to P19. When questioned under Section 313 Cr.P.C., the appellant denied all the incriminating circumstances against him and urged that he was innocent. The appellant stated that the excise officials forcefully took him into custody and directed him to hold a bag. Some days prior to the incident, he had resisted the excise officials from taking a case against his relative residing near his house and it is due to that entity he was implicated in this fabricated case. 5. The Additional District and Sessions Judge, after appreciating the evidence, came to a conclusion that the appellant was found in possession of 31.250 Kg. of Ganja in an airbag and suitcase and was standing in front of the Kurishadi opposite to the KSRTC bus stand at Kollam. The appellant has thereby committed offence punishable under Section 20(b)(ii)(C) of the NDPS Act. Consequently, the Crl.A. No.1429/2019 : 5 : appellant was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of ₹1 lakh, and in default of payment of fine, the appellant was directed to undergo rigorous imprisonment for six more months. The period of detention underwent by the appellant from 06.07.2011 to 12.12.2011 was set off from the substantive sentence of imprisonment under Section 428 Cr.P.C. 6. The learned counsel for the appellant argued that the court below did not appreciate the defence case that he was forcefully planted in this case as a measure of vengeance against the appellant. The court ought to have found that the secret information reduced in writing was prepared on a subsequent time and the report has no time mentioned. On the content of the secret information, the court below ought to have found that the prosecution case that the accused had transported and possessed cannabis is totally uncertain and against rational sense. The Section 161 statement of PW1 had irregularities. The date of occurrence is mentioned as 05.11.2011. Crl.A. No.1429/2019 : 6 : 7. The learned counsel for the appellant further stated that no information was sent to the immediate superior officer as per Section 42 of the NDPS Act and PW1 has neither stated in his 161 statement, nor in the Mahazar that the copy of information was sent to his immediate superior officer. The depositions of PW1 and PW8 are totally contrary and silent as to the compliance of Section 42(2) of the NDPS Act. 8. On behalf of the appellant, it was further argued that the secret information was not recorded in an assigned register and no such statement has come up from the part of the prosecution. The information is stated to have been reduced on a piece of paper and it creates a reasonable doubt, as regards the case of the prosecution, the prosecution miserably failed to prove the case beyond doubt. 9. The court below ought to have found that Section 50(1) of the NDPS Act was not complied with. No endeavour was made by the prosecuting agency to produce the appellant before the nearest Magistrate soon after the Crl.A. No.1429/2019 : 7 : search. The property recovered by the prosecution is vague in its description and the prosecution had not mentioned the colour of the airbag or its size or its branding. The signature in the label pertaining to CW6 was not found marked. There was an inordinate delay of 18 hours in registering the crime. 10. The court below has ignored various proved facts which militate against the veracity of the prosecution case. The court below overlooked several material circumstances which are consistent with the innocence of the appellant. The order of conviction and sentence is therefore liable to be set aside, it is urged on behalf of the appellant. 11. The Public Prosecutor resisted the appeal. PW1 Detecting Officer has stated that on receipt of information on 05.07.2007, he went to Kurishadi near Kollam KSRTC Bus Stand and found the appellant possessing an airbag and a suitcase containing Ganja. The appellant was searched in presence of PW8. MO1 and MO2 were produced and marked. The seizure of the contraband is thus clearly proved. Crl.A. No.1429/2019 : 8 : 12. PW8 Assistant Excise Commissioner has specified that he received Ext.P2 information dispatched by PW1. PW3 Autorickshaw Driver has admitted his signature in Exts.P6 and P7. He deposed that when the excise party apprehended the appellant, he was possessing two bags. PW3 also deposed and confirmed the presence of the appellant at the scene of occurrence. 13. The appellant was caught red handed while he was possessing a large quantity of Ganja. The Detectiing Officer, who received prior information, has recorded the same and forwarded report under Section 42 of the NDPS Act. The appellant was searched in presence of PW8, who is a Gazetted Officer. All the mandatory functions were followed and the guilt of the appellant stands proved beyond reasonable doubt. The appeal preferred by the appellant is therefore only to be rejected, contended the Public Prosecutor. 14. I have heard the learned counsel for the appellant and the learned Public Prosecutor representing the State. Crl.A. No.1429/2019 : 9 : 15. The allegation against the appellant is that he was found possessing 31.250 Kg. of Ganja in an airbag and a suitcase. On 05.07.2011 at about 9 pm, PW1 Excise Inspector received reliable information over telephone that the appellant was possessing Ganja in an airbag and suitcase and is standing in front of Kurishadi opposite to the KSRTC bus stand. PW1 Excise Inspector has recorded the information and informed his official superior. Ext.P2 is the report under Section 42(2). Ext.P2 is proved by PW1. 16. PW1 took samples of Ganja, packed and sealed the samples and the bulk quantity of Ganja and arrested the appellant from the scene of occurrence. The appellant was searched in the presence of PW8. ₹40/- in cash, train tickets, bus tickets and luggage tickets were recovered from the body of the appellant. These documents are marked as Ext.P4 series. 17. The Ganja contained in plastic covers has been sealed and labelled after fixing personal seals in all the samples. Ext.P6 is the seizure mahazar. Ext.P8 is the Crl.A. No.1429/2019 : 10 : seizure report. The bag containing Ganja was produced as MO1 and the suitcase is marked as MO2. The samples taken are MO3 series. 18. The main defence of the appellant is that he was implicated in the crime as the excise officials had previous enmity towards him. Claim of the appellant that the appellant had resisted the excise officials from registering a case against his relative, is not supported by any credible material whatsoever. The appellant did not disclose the identity of his relative who was allegedly arrested or sought to be arrested. The appellant therefore failed to prove the said aspect. 19. The evidence adduced by PW1 and PW8 appears to be natural and convincing. The appellant could not discredit the oral evidence produced by PW1 and PW8. The time taken by the excise party to reach the scene of occurrence does not in any manner shake the prosecution version. It is true that in Ext.P2 report, the date is wrongly mentioned as 06.07.2009, which is obviously a clerical error. Crl.A. No.1429/2019 : 11 : 20. PW8 has stated that he has received Ext.P2 report. Ext.P2 report and other material documents were produced before the Magistrate on 06.07.2011 itself along with occurrence report and remand report. The search and recovery were from a public place. The testimonies of PW1 and PW8 are corroborated by PW3, an autorickshaw Driver, who is an independent witness. The presence of PW3 near the place of occurrence is natural. 21. Relying on the judgment of the Apex Court in _**Mohinder Singh v. State of Punjab** [AIR 2018 SC 3798],_ the counsel for the appellant argued that it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of the contraband goods were seized from the possession of the accused and the best evidence to prove this fact is to produce during the trial, the seized materials as material objects and that mere oral evidence that the materials were seized from the accused would not be sufficient to make out an offence under the NDPS Act. The counsel for the appellant also relied on the judgment of Crl.A. No.1429/2019 : 12 : this Court in _**Faijas v. State of Kerala** [2020 KHC 5259]_ and argued that unexplained delay in producing the seized substances before the Court and absence of evidence as to how and in what condition the seized substances were kept in the police station till the date of their production in the court would create doubt as to whether seizure of the substances was effected from the accused in the manner alleged by the prosecution. The counsel urged that unless and until the safety measures are not ensured, it cannot be said that the sample of the contraband subject to chemical examination by the Chemical Examiner is one collected from the possession of the accused. 22. In the present case, it is established that PW1 Excise Circle Inspector conducted the body search in presence of PW8. The airbag of the appellant contained plastic cover in which 14.005 Kg. Ganja was kept. The suitcase contained plastic cover containing 17.254 Kg. of Ganja. 25 grams each were taken as sample from the suitcase and airbag. Crl.A. No.1429/2019 : 13 : 23. The sample packets were sealed and labelled. PW1 affixed his personal seals in all the samples and bulk quantity of Ganja. Ext.P6 seizure mahazar and Ext.P8 seizure report were prepared. The airbag and suitcase containing Ganja were marked as MO1 and MO2. Reserve samples were marked as MO3. The seizure was on 05.07.2011. Seizure report was drawn on 05.07.2011 itself. Ext.P12 crime and occurrence report prepared on 05.07.2011 was proved by PW2. Ext.P13 property list was drawn on 06.07.2011 and Ext.P14 remand application was also made on 06.07.2011. Ext.P18 is the FSL report proved by PW7. The appellant has not advanced any convincing arguments to discredit or to caste any shadow on the seizure of Ganja, taking of samples or on the FSL report proved by PW7. The judgments relied on by the appellant are therefore of no help to the appellant. 24. The counsel for the appellant placed reliance on the judgment of the Hon'ble Madya Pradesh High Court in _**Union of India through Central Bureau of Narcotics,**_ Crl.A. No.1429/2019 : 14 : _**Neemuch v. Suchchasingh Bhagat Singh** [2022 KHC 5456]_ and argued that the inordinate delay in sending samples and difference in the weight of the seized article would vitiate the prosecution. In the case of the appellant, I do not find any substantial delay or difference in weight of the contraband material so as to vitiate the prosecution. 25. Wherever the evidence of the police officer, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form the basis of conviction. No infirmity touches to the testimony of police officers/excise officials. The case against the appellant is supported by independent evidence also. In the facts of the case, I do not find any reason to interfere with the order of the Additional District and Sessions Judge, convicting and sentencing the appellant. The Criminal Appeal is therefore dismissed. Sd/- **N. NAGARESH, JUDGE** aks/03.01.2024