Nizar and Mohammed Saheer v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **TUESDAY, THE 7[TH] DAY OF FEBRUARY 2023 / 18TH MAGHA, 1944** ## **CRL.A NO. 409 OF 2007** **AGAINST THE JUDGMENT IN SC 1/2006 OF SPECIAL COURT (NDPS ACT** ## **CASES), VADAKARA** ## **APPELLANTS/ACCUSED 1 AND 2:** - **1 NIZAR, S/O.UMMER, KALATHIL HOUSE, KOTTAKKAL AMSOM, DESOM, TIRUR.** - **2 MOHAMMED SAHEER @ SAHEER S/O. HAMSA KAKKIDI HOUSE, KOTTAKKAL AMSOM DESOM, TIRUR.** **BY ADV SRI.T.G.RAJENDRAN** ## **RESPONDENTS/COMPLAINANT & STATE:** - **1 THE SUB INSPECTOR OF POLICE, TIRUR 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **SMT.S.REKHA SR.P.P** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 07.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A NO. 409 OF 2007** 2 ## **J U D G M E N T** This appeal has been filed by the accused, 2 in numbers, in S.C.No.1 of 2006 on the files of the Special Judge (NDPS Act Cases) Vadakara (for short 'the court below') challenging the judgment dated 28.02.2007 convicting and sentencing them under Section 21 (b) of the NDPS Act. 2. The prosecution case in short is that on 30.08.2004 at 11.30 a.m., at the side of the compound wall of the Ambalakulangara Durga Bhagavathi temple on the side of the public road at Tirur, the accused were found in possession of 100 grams each of brown sugar meant for sale and thereby committed the offence. 3. The appellants faced trial for the offence punishable under Section 21 (b) of the NDPS Act. 4. On the side of the prosecution, PWs 1 to 6 were examined and Exts.P1 to P17 were marked. MOs 1 to 8 were identified. After trial, the court below found both the accused guilty for the offences punishable under Section 21 (b) of the NDPS Act and they were convicted for the said offence. They were sentenced to undergo rigorous imprisonment for 6 years and to pay a fine of Rs.25,000/- each, in **CRL.A NO. 409 OF 2007** 3 default to suffer rigorous imprisonment for 1 year for the offence punishable under Section 21 (b) of the NDPS Act. The said conviction and sentence are under challenge in this appeal. 5. I have heard Sri.T.G.Rajendran, the learned counsel for the appellants and Smt.Rekha S., the learned Senior Public Prosecutor. 6. The learned counsel appearing for the appellants submitted that the search and seizure is illegal and is in violation of the mandatory provisions of the NDPS Act. The counsel further submitted that there is non compliance of Sections 42, 50 and 57 of the NDPS Act. The counsel also submitted that the investigating officer, who conducted the investigation and submitted the final report, has no authority to conduct the investigation. At any rate, the sentence imposed is excessive and exorbitant, submitted the counsel. The learned Senior Public Prosecutor, on the other hand, submitted that the prosecution has succeeded in proving the case beyond reasonable doubt that the accused have committed the offence punishable under Section 21 (b) of the NDPS Act. The learned Senior Public Prosecutor further submitted that there is total compliance of all the mandatory provisions of the NDPS Act. **CRL.A NO. 409 OF 2007** 4 7. PW3, the Circle Inspector of Police, is the detecting officer. PW1 is the Probation Circle Inspector who accompanied PW3 at the time of detection. PW4 is the eyewitness who witnessed the arrest and seizure and also the witness to Ext.P3 seizure mahazar. The evidence of these 3 witnesses was highly relied on by the prosecution to prove the detection, seizure of the contraband and arrest of the accused. PW3 deposed that at about 11.00 a.m., on 30.08.2004, he got secret reliable information that two persons had come infront of the Anugraha Theatre at Tirur for the sale of brown sugar. Immediately, he recorded the information in the general diary and proceeded to the spot along with PW1. When they reached the place, the accused tried to escape. But they caught them. He further deposed that thereafter he told both the accused that he wanted to search their body and also told them about their right to be searched in the presence of any gazetted officer or Magistrate. But both the accused waived their right and gave consent for search by him in writing. Exts.P1 and P2 are the consent letters given by the accused Nos.1 and 2 respectively. He further deposed that thereafter he got his own body searched by a witness and after that he searched the body of the two accused. On body search of the accused **CRL.A NO. 409 OF 2007** 5 No.1, he got a small paper packet from the pocket of his trousers and on body search of the accused No.2 also, he got a similar packet concealed under the underwear worn by him. His evidence would further show that when he opened both the packets, he could find brown sugar in a plastic cover inside the packets. He then got it weighed by a goldsmith who was brought there. He was examined as PW5. The total quantity of brown sugar in each packet was found to be 100 grams. His evidence would further show that thereafter he arrested both the accused on the spot and seized the brown sugar as per Ext.P3 mahazar. He further deposed that thereafter he took 3 samples of 10 grams each from the brown sugar seized from the possession of the accused and sample packets were properly sealed and labelled. MO4 series are the sample packets and MOs 1 and 2 are the sealed packets of the residue brown sugar seized from the possession of the accused. PW1 gave evidence in tune with the evidence tendered by PW3. PWs 1 and 3 identified the accused as well as MOs. 1, 2 and 4 series. PW4 independent witness also supported the seizure and the arrest effected by PW3. Eventhough PW1, 3 and 4 were cross examined at length, nothing tangible could be extracted from their testimony to create any shadow of doubt that they **CRL.A NO. 409 OF 2007** 6 are not truthful witnesses. Evidence on record would further show that the sample packets were sent for chemical analysis and Ext.P15 report was obtained. Ext.P15 would show that the seals of the material object forwarded to the FSL were intact and the packets containing the MOs were sealed with the impression of the seal corresponding with the seal impression given in the forwarding note. In Ext.15 it is stated that the material object is brown sugar and therefore it is a narcotic drug as defined under the NDPS Act. The search and seizure of the contraband and arrest of the accused are amply proved by the testimonies of PWs 1, 3 and 4. The defence has not been able to cause any dent to their evidence who credibly deposed in support of the prosecution case. 8. The learned counsel for the appellants vehemently argued that there is non-compliance of Sections 42, 47 and 50 of NDPS Act. Section 42(1) of the NDPS Act provides for entry, search, seizure and arrest without warrant or authorisation. According to this provision, where an empowered officer who has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug or psychotropic substance in respect of which an offence punishable under the NDPS Act has been committed **CRL.A NO. 409 OF 2007** 7 or any document or other article which may furnish evidence of the commission of such offence kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset enter into and search any such building, conveyance or enclosed place. Section 42(2) provides that where an officer takes down any information in writing under Sub Section (1) or records grounds for his belief under the proviso thereto, he has to forthwith send a copy thereof to his immediate official superior. A joint reading of Section 42 (1) and 42 (2) of the NDPS Act therefore makes it clear that the requirement in Section 42 (2) will be attracted only to a case where the information relates to the availability of narcotic drug or psychotropic substance in a building, conveyance or enclosed place as distinct from their availability in a "public place" which is covered by the separate Section viz. Section 43. In Section 43 of the Act there is no provision similar to that in Section 42 (2) which makes it obligatory for the officer who receives the information to record the information and to send it to the official superior. Here, admittedly the seizure was in a public place. Therefore, Section 42(2) of the NDPS Act would not apply. However, the learned counsel for the appellants submitted that since the prosecution has **CRL.A NO. 409 OF 2007** 8 adduced evidence that PW3 had taken down information in writing and sent a copy thereof to his immediate official superior, the said document could have been produced by the prosecution to prove the seizure. It is true that the report sent to the superior official has not been produced. As I have already stated, the compliance of Section 42 (2) is not mandatory. However, Ext.P16 and P17, extract of tapal distribution register and despatch register maintained in the office of PW3, would show that it contains entry showing that report under Sections 42 and 57 of the NDPS Act had been promptly sent from the office of PW3 without any delay. Thus this piece of evidence would prove the substantial compliance of Sections 42 and 57 of the NDPS Act. So far as Section 57 of the NDPS Act is concerned, it is settled that it is not mandatory but only directory. (see **Sajan Abraham v. State of Kerala** [2001 (3) KLT 146= 2001 (6) SC 692]). Even assuming that there has been no strict compliance with the requirement under Section 57, that is not a ground for acquittal, the reason being that Section 57 is only directory. (see **Palayan v. State of Kerala** [2002 (1) KLT 874]) 9. The learned counsel next argued that there is total noncompliance of Section 50 of NDPS Act. He placed reliance on the **CRL.A NO. 409 OF 2007** 9 decision of the Supreme Court in A **rif Khan alias Agha Khan v. State of Uttarakhand** (AIR 2018 SC 2123) and the decision of a Single Bench of this Court in **Shameer v. State of Kerala** [2019 (3) KLT 586]. In **Arif Khan** (supra), relying on the Constitutional Bench judgment of the Apex Court in **State of Punjab v. Baldev Singh** [(1999) 6 SCC 172] and **Vijaysinh Chandubha Jadeja v. State of Gujarat** (AIR 2011 SC 77), the Apex Court held that the requirement of Section 50 of NDPS Act is mandatory and therefore, the provision of Section 50 must be strictly complied with. It was held that it is imperative on the part of the police officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a gazetted officer or a Magistrate. It is further held that it is equally mandatory on the part of the authorized officer to make the suspect aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. The search was conducted by PW3. PW3 himself is a gazetted officer. The evidence of PW3 would show that he gave an option to both accused to get their body searched in the presence of a gazetted officer or a Magistrate. But both the accused answered that their body can be searched by PW3 **CRL.A NO. 409 OF 2007** 10 himself who is also a gazetted officer. They also gave in writing the same. It is marked as Exts.P1 and P2. Relying on the evidence of PW3, the learned counsel argued that his evidence would only show that he gave an option to the accused to get their body searched in the presence of a gazetted officer or a Magistrate, but he did not make the accused aware of their right to be searched before a gazetted officer or a Magistrate. I cannot subscribe to the said argument. In cross examination, to a specific question, PW3 answered that he made aware the accused their right to be searched in front of a gazetted officer or a Magistrate and they answered that they could be searched by PW3 himself. PW1 also deposed that PW3 has appraised the accused their right to be searched in the presence of a gazetted officer or a Magistrate. Thus, the evidence of PW1 and PW3 coupled with Exts.P1 and P2 would prove that there is compliance of Section 50 of the NDPS Act. In **Shameer** (supra), a Single Bench of this Court took the view that waiver made by the accused, if at all he had waived his right, cannot be said to be free because, the detecting officer had told the accused that he himself is a gazetted officer. That was a case where the waiver was not obtained in writing by the detecting officer. In that **CRL.A NO. 409 OF 2007** 11 circumstance, the court came to the conclusion that there is no evidence to show that the accused has infact waived the right. But here is a case where there is ample evidence to show from the oral testimony of PWs 1 and 3 as well as the documentary evidence i.e., Exts.P1 and P2, that the accused have waived their right. Therefore, the dictum laid down in **Shameer** (supra) will not apply in this case. 10. The learned counsel next submitted that PW6, the investigating officer, who is the Circle Inspector of Police at Tanur, has no territorial jurisdiction to conduct investigation in an offence that has taken place at Tirur. But no such challenge was made when PW6 was examined at the court below. No such contention was raised before the court below. No such ground has been taken in the appeal memorandum also. This is raised for the first time when the learned counsel argued the matter. There is nothing on record to show that PW6 did not have any territorial jurisdiction to conduct investigation in respect of an offence that took place within the jurisdiction of Tirur Police station. 11. Another argument has been raised by the learned counsel for the appellants that only copy of the forwarding note is produced. **CRL.A NO. 409 OF 2007** 12 But original has not been produced. Ext.P14 is the carbon copy of the forwarding note and when Ext.P14 was marked, no such objection was raised. That apart, the defence does not challenge the case of the prosecution that the contraband article seized was forwarded for chemical analysis. 12. For the reason stated above, I am of the view that the finding of the court below that the prosecution has succeeded in proving that the accused have committed the offence punishable under Section 21 (b) of the NDPS Act, does not warrant any interference. 13. The next question is regarding the sentence. The appellants were sentenced to undergo rigorous imprisonment for 6 years and to pay a fine of Rs.25,000/- each, in default to suffer rigorous imprisonment for 1 year. The learned counsel for the appellants submitted that the appellants are first time offenders and that the case has been pending for the last more than 15 years and that itself is a punishment. Considering all these facts and circumstances, I am of the view that substantive sentence can be reduced to three years. In the light of the above findings, the conviction and sentence passed by the Court below is confirmed. The substantive sentence is **CRL.A NO. 409 OF 2007** 13 reduced to three years of rigorous imprisonment with no change in the fine or default sentence. The appeal is allowed in part as above. Sd/- **DR.KAUSER EDAPPAGATH, JUDGE** AS