OCHAR v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **MONDAY, THE 25TH DAY OF SEPTEMBER 2017/3RD ASWINA, 1939** **CRL.A.No. 447 of 2016 () -------------------------** **AGAINST THE ORDER/JUDGMENT IN SC 49/2015 of SPL. COURT (NDPS ACT CASES), VADAKARA CRIME NO. 124/2015 OF PERINTHALMANNA POLICE STATION , MALAPPURAM** **APPELLANT(S)/ACCUSED: --------------------** **OCHAR, AGED 40 YEARS, S/O.MAYANDI THEVAR, WARD NO.2, D.NO.103, ULAGA THEVAR STREET, KAMBAM, THENI STREET, TAMILNADU.** **BY ADVS.SRI. M.RAMU SRI.M.RAMU SRI.N.A.MANIMARAN** **RESPONDENT(S)/COMPLAINANT: --------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **R BY PUBLIC PROSECUTOR E.C.BINESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-092017, THE COURT ON 25/9/2017 DELIVERED THE FOLLOWING:** ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - **Crl.Appeal.No.447 of 2016** - - - - - - - - - - - - - - - - - - Dated this the 25[th] day of September, 2017 ## **JUDGMENT** The sole accused, who stands convicted in SC No.49/2015 of the Court of Special Judge(NDPS Act Cases)Vatakara,for offences punishable under section 20(b)(ii)(C) of NDPS Act is the appellant herein. 2. The prosecution case was that, on 19/1/2015 at about 5.40 p.m., the Inspector of Police of Perinthalmanna police station got a secret information that, a 50 year old person with a dark complexion was standing near Angadipuram police station carrying 4 bags containing ganja. Immediately report under section 42 of the NDPS Act was prepared and forwarded to the superior officer. Thereafter, he along with police party proceeded to the spot in a jeep. The accused who was found in the location with four bags was intercepted. Thereafter, the intention of the inspector to conduct a search was disclosed and offer under section 50 of the NDPS Act was made. The accused demanded the presence of the Tahsildar and, accordingly the Tahsildar was brought to the spot. In his presence, search was conducted. 22 packets of ganja were recovered from four bags. 8 samples with two samples each from each bag were separated. The total quantity of ganja recovered Crl.A.No.447/2016 2 from the accused was found to be 45.200 Kgs. Samples and remaining contraband were packed, label affixed and sealed. After completion of the formalities, the accused was taken to the police station. Crime No.124/2015 was registered and investigation was conducted by PW7, the Inspector of Police, who after completion of the investigation, laid the final report for offence punishable under Section 20(b)(ii)(C) of NDPS Act. The accused denied the allegation and faced the trial before the Sessions Judge. 3. On the side of the prosecution, PWs 1 to 7 were examined and Exts.P1 to P14 were marked. MOs 1 to 14 were identified. After completion of the prosecution evidence, the accused was examined under section 313 of Cr.P.C.. Thereafter, the accused was called upon to enter on his defence. DW1 was examined on the side of the accused and Exts.D1, D1(a) and D2 were marked. On the basis of the available materials, the Sessions Judge found the accused guilty of offence punishable under section 20(b)(ii)(C) of NDPS Act, convicted and sentenced him to undergo RI for 15 years and to pay a fine of Rs.1,00,000/-. In default, he was to undergo RI for one year more. Set off under section 428 of Cr.P.C.was also allowed. Aggrieved by the above conviction and sentence, the accused has preferred this appeal. 4. The learned counsel for the appellant requested for an early hearing and submitted that he was ready for hearing. The Crl.A.No.447/2016 3 learned Public Prosecutor was also ready for hearing. Hence, both sides were heard. Examined the records. 5. The prosecution relied essentially on the oral testimony of PW1, the inspector of Police of the Perinthalmanna police station to establish the guilt of accused. He had deposed in accordance with the prosecution allegation. He deposed that, he got secret information on 19/1/2015 at 5.45 p.m. regarding the accused, possessing the huge quantity of ganja. Ext.P1 report of the Dy.S.P. was forwarded, which was received by the superior officer on the same day itself. Thereafter, he proceeded to the spot. After identifying the accused, the intention to conduct search was conveyed and offered him the presence of the authorities contemplated under section 50 of the NDPS Act. Ext.P2 notice was given to the accused and he demanded the presence of the gazetted officer. Accordingly, PW5, the Tahsildar, was brought to the spot. After search, the contraband articles which were recovered were weighed, samples separated and 8 samples drawn. It was stated that, samples and contraband were packed, tied, labels affixed and properly sealed. The accused was arrested and produced before the investigating officer. According to PW1, he was satisfied with the complicity of the accused. 6 To substantiate the prosecution allegation, it essentially Crl.A.No.447/2016 4 relied on the oral testimony of three other witness viz.PW2, PW3 and PW5. 7. PW2 is an independent witness, who deposed in accordance with the prosecution case. He admitted about his presence at the time of search and witnessing the seizure of the contraband articles from the accused. He admitted his signature in Ext.P4 seizure mahazar. He also deposed that, he had seen the recovery of ganja and compliance of all other formalities valid for search and seizure. 8. PW3 is another witness to the seizure. He was a member of the police party. He also deposed in tune with the version spoken by PW1. He was a member of the police party. He gave meticulous details of search and seizure. 9. PW5 is the Tahsildar, who was brought to the spot. PW5, on material points touching upon the search, gave evidence in tandem with oral testimony of PW1. He admitted his signature in Ext.P4. 10. Ext.P4 is the seizure mahazar, which gives meticulous details of the entire process commencing from the inspection. A perusal of Ext.P4 shows that, it is detailed and even minutest aspects regarding the processes, that followed interception, are meticulously disclosed. Versions of PWs1, 2, 3 & 5 are in tune with the entries in Ext.P4 seizure mahazar. Crl.A.No.447/2016 5 14. PW4 was the village officer who prepared the site plan, Ext.P9. Ext.P10 is the scene mahazar. PW6 proved Ext.P10 scene mahazar, being a witness. PW7 was the investigating officer who gave evidence in accordance with the prosecution case, touching upon the investigation part of the case. 12. Contemporaneous documents are Exts.P2, P3, P4 and P7. It appears from the record that, the accused was produced before the Magistrate on 20/1/2015 at 5.p.m.. Exts.P2, P3, P4 and contraband articles were produced before the Magistrate along with the accused. Thereafter, as endorsed by the learned Magistrate, Exts.P3 and P4 were produced before the Magistrate along with contraband on 20/1/2015. Hence, it appears that, the contraband produced along with Ext.P8 property list were produced before the Magistrate on 20/1/2015. PW7 in his version, has spoken about the receipt of the contraband articles by him along with the accused. 13. It appears that, the crucial documents reached the court along with the accused on the next day itself. The contraband articles were also produced before the court without much delay. Contraband articles were in sealed condition. 14. The learned counsel for the appellant vehemently attacked the prosecution allegation on various grounds. It was contended by the learned counsel that, there was serious Crl.A.No.447/2016 6 infraction of statutory provisions under sections 42 and 50 of the NDPS Act. It was contended that, there were several materials to doubt the prosecution allegation and the factual aspects. It was further contended by the learned counsel that, though the statute provides that, the accused shall be produced before the gazetted officer or the nearest Magistrate, in fact, PW5, the Tahsildar, was brought to the location and the accused was not taken to him. It was also contended that, PW5 was brought to the spot in the police jeep, which affected the independence of the authority. 15. I am not impressed by the above contentions of the learned counsel for the appellant for more reasons than one. Since the accused was intercepted at the spot with huge quantity of ganja, the possibility of accused being taken to the place of PW5 appears to be too cumbersome. It is also pertinent to note that merely for the reason that PW5 was brought to the spot in the jeep of the investigating agency itself is not a sufficient ground to doubt the credibility of the witness. 16. It was contended by the learned counsel for the appellant that, in Ext.P3 arrest memo, the specific offence relating to commercial quantity was referred to. It was pointed out that, the arrest was prior to the weighing. In the above circumstances, whether the offence related to inter-mediatory quantity or commercial quantity would not have been known to PW1. Crl.A.No.447/2016 7 Consequently, the incorporation of section 20(b)(ii)(C) of NDPS Act in Ext.P3 showed that, Ext.P3 was prepared subsequently after weighing and not in accordance with the version of PW1, it was contended. 17. I am not impressed by the above argument of the learned counsel. The above question was put to PW1 and explained by him satisfactorily. He explained that even at the time of interception, he was satisfied that, the quantity was so huge that it fell within the commercial quantity. This reply has not been demolished in cross examination. Evidently, the contraband seized was much more than the minimum commercial quantity fixed by statute. 18. It was contended by the learned counsel for the appellant,relying on the versions of PWs1 and 3, that the contraband items were weighed with its plastic covers. Hence the total weight of ganja which was claimed to be 45.200 kg included the weight of the plastic covers also. Hence,learned counsel contended that, the contention of the prosecution, that the contraband articles were of commercial quantity, was not supported by reliable evidence and consequently,the conviction under section 20(b)(ii)(C) of NDPS Act was not sustainable. 19. This point was marshaled before the court below and considered by the court below in detail at paragraph 25 of the judgment. It is clear that, the total weight of ganja was 45.200 Crl.A.No.447/2016 8 kgs. They were weighed in polythene covers. Evidently, commercial quantity involves more than 20 kgs. By no stretch of imagination, it can be held that plastic covers had such weight, so as to substantially displace the total weight of the contraband articles to bring it lower than 20kgs. Definitely, the weight of the plastic covers can only be much less and is not sufficient to bring the total weight of 45.200 kgs to a lesser weight, to make it less than the commercial quantity. This contention would have been attractive, if the total weight was marginally higher than 20 kgs. The contention of the appellant, in the above facts and circumstances of the case, does not stand to reason. 20. Learned counsel for the appellant contended that, in the light of the above unreliable nature of evidence regarding the actual weight of contraband articles, conviction can at the most be for intermediary quantity. To substantiate it, learned counsel relied on the Division Bench decision of the Madras High Court in **M.Veludurain v. The State (2012-1-L.W.(Crl.) 70)** . In that Division Bench decision, the Madurai Bench of the Madras High Court was called upon to decide the question whether in a seizure of mixture or preparation, with or without a neutral material of any of the drugs, in the absence of the estimation of the exact quantity of drug, whether the accused can be convicted for a higher offence. The decision related to a mixture or preparation of drugs or Crl.A.No.447/2016 9 narcotic substances. It was held that, in the absence of estimation of exact quantity of Narcotic Drug/Psychotropic Substance contained in the said mixture or preparation, it shall be concluded that the quantity of Narcotic Drug/Psychotropic Substance is only a small quantity. 21. The above decision has no application to the present case. The contraband seized was neither a mixture nor a preparation, but pure ganja. The Division Bench itself had held that, if the contraband seized was neither a mixture nor a preparation with or without a neutral material and if it is found to be a Narcotic Drug/Psychotropic Substance simplicitor, there was no need to hold any other test like, purity test and it would suffice if the prosecution has proved that the contraband is a Narcotic Drug/Psychotropic substance . 22. Learned counsel for the appellant relied on the decision reported in **Union of India v .Mohanlal and Another (2016)1 SCC(Cri)864)** to contend that the prosecution did not comply with the directions contained in the above decision. In that decision, the Supreme Court, while dealing with sections 52-A and 55 of the Act, held that, the scheme of the Act in general and section 52A in particular, the process of drawing the 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. It was Crl.A.No.447/2016 10 contended that, this was not complied in the present case. Evidently, this contention appears to be based on a thorough misreading of the statutory provision and the above decision. 23. The above decision referred to the procedure contemplated under section 52A of the NDPS Act, which related to the handling and disposal of the seized narcotic drugs and psychotropic substances. Evidently, the provision considered by the Supreme Court was regarding the items which were seized and produced, and were to be disposed of due to lack of space to store the contraband articles, pending the trial. This has no relevance in the case of sampling done at the time of search and seizure at the spot of interception, which is done essentially to ensure the credibility of the search and seizure and also to prove that the sample which was collected at the spot and sent for chemical examination in sealed condition was narcotic drug. Section 52A does not refer to the separation of samples at the spot. 24. It was contended by the learned counsel for the appellant that, PW1 had deposed that 8 samples weighing 100 grms each were separated and packed at the spot. However, PW7 admitted that, weight of the samples which reached FSL, as evident from Ext.P13 chemical analysis report showed that each sample exceeded 100 grms. Hence, it was contended that, version of the prosecution regarding process of sampling was doubtful. The court Crl.A.No.447/2016 11 below has dealt with this contention and rejected it relying on the decision in **Dehal Singh and Another v. State of Himachal Pradesh (2010 KHC 4631)** , wherein the court had observed that weighing of articles with common weighing scale may not be with great accuracy, whereas in the laboratory, the weight is recorded with precision scale. Hence, it was held that small difference in weight loses its significance when one finds no infirmity in other part of the prosecution theory. I feel that, the court below has correctly analyzed this factual aspect. 25. It was contended by the learned counsel that the accused belonged to Tamil Nadu and he did not know Malayalam. It was contended that, the search and the entire process of examination of the witnesses and recording of section 313Cr.P.C statement in a language unknown to the accused had caused substantial prejudice, which vitiated the process of trial. PW1 in his evidence stated that, he could speak Tamil. According to him, the accused also knew Malayalam and spoke in Tamil mixed with Malayalam. PW3 also stated that, the accused was speaking Tamil mixed with Malayalam. There are materials to show that each and every process of interception was explained to the accused and his signature obtained on the documents. The accused did not have a case at the time of framing of the court charge, the trial, or at the stage of questioning under section 313 Cr.P.C. that he did not know Crl.A.No.447/2016 12 Malayalam. Evidently, the court seems to have taken care of it and there is absolutely no material to show that any prejudice was caused to the accused. 26. It was contended by the learned counsel for the appellant, that the accused was arrested in Tirupur in Tamil Nadu along with two other persons and it was reported in Tamil Newspaper. To substantiate it, learned counsel relied on the oral testimony of DW1 , Ext.D1 newspaper and Ext.D1(a) news item published in Ext.D1. Ext.D2 is the English translation of Ext.D1(a). Learned counsel contended that, it referred to arrest of three persons including appellant, his wife and son. It was further stated that, arrest was based on police information. A perusal of evidence of DW1 along with Ext.D2 only shows that, the accused and his family members were intercepted from Tirupur. News item itself refers that from the wife and son lesser quantity of ganja were recovered. It also refers that, the accused herein was arrested by the Kerala Police and 40 kgs of ganja were seized from him. The above news item do not show that, the accused was arrested at Tirupur. On the other hand, the arrest of the accused by the Kerala Police with 40 kg of ganja is, infact, reported by the Tamil News paper. 27. It was contended by the learned counsel for the appellant that, the source of ganja was not proved and the prosecution did not explain how the accused reached the spot with 45.200 kgs of Crl.A.No.447/2016 13 ganja. PW7 in his evidence has stated that, the investigation revealed that, it was brought from Andhra Pradesh. It was reported to be delivered to one Babu. However, that person could not be identified. Merely because the source of ganja and the manner of its transportation is not proved by cogent evidence, by itself is not sufficient to doubt the prosecution case, if the conscious possession is proved by other evidence. 28. An evaluation of the entire materials on record, indicates that there are sufficient materials to prove that contraband was seized from the accused. Samples were drawn at the spot. The seizure is proved by Ext.P4 corroborated by the consistent testimony of PWs 1, 2, 3 & 5 along with contemporaneous documents of Exts.P2, P3, P4 and P7. The samples so drawn were forwarded to the court along with Ext.P8 property list. It reached the court in sealed condition without any delay. The above samples were forwarded to the forensic Laboratory and Ext.P13 clearly shows that samples reached the FSL without any interpolation . The samples were found to contain ganja. Hence, the prosecution succeeded in proving that 45.200 kgs of ganja was recovered from the possession of the accused. In the above circumstances, the findings of the court below and the conviction arrived thereon is liable to be confirmed. 29. Having considered the above, the next question that Crl.A.No.447/2016 14 arises is regarding the sentence to be imposed. Court below on an evaluation of the available materials imposed a substantive sentence of RI for 15 years and to pay a fine of Rs.1,00,000/- with a default sentence. The quantity involved is very huge. It is also pertinent to note that the Court has taken note of the fact that in such cases, law has to be strict and misplaced sense of sympathy is likely to cause more damage to the society. However, petitioner is not seen involved in any other earlier crime. There is no record to substantiate it also. Having considered this, I feel that a substantive sentence of 13 years with a fine of Rs.1,00,000/- and in default to undergo RI for one more year will serve the interest of justice. In the result, appeal is allowed in part. While confirming the conviction, the sentence imposed by the court below is modified to RI for 13 years and a fine of Rs.1,00,000/- in default of which, he shall undergo RI for one year. Set off is allowed. ## **Sd/-** ## **SUNIL THOMAS Judge** dpk /true copy/ PS to Judge **.**