P. Sakkariya S/O Muhammed v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR TUESDAY, THE 28[TH] DAY OF JUNE 2022 / 7TH ASHADHA, 1944 CRL.A NO. 163 OF 2008** **AGAINST THE JUDGMENT DATED 21.01.2008 IN SC 12/2007 OF SPECIAL COURT (NDPS ACT CASES), VADAKARA APPELLANT/ACCUSED:** **P.SAKKARIYA S/O MUHAMMED, POTTY (H), PUZHATHI AMSOM, KUNHIPPALLI.** **BY ADV SRI.T.G.RAJENDRAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SMT.MAYA M.N., PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 16.06.2022, THE COURT ON 28.06.2022 DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.163 of 2008 ## **JUDGMENT** The appellant was the accused in S.C.No.12 of 2007 on the file of the Special Court (NDPS Act Cases), Vadakara. He was convicted and sentenced for an offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “NDPS Act”). He was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.5,000/-, failing which to undergo rigorous imprisonment for a further period of three months. The legality and propriety of the said judgment are under challenge in this appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973. 2. The appellant stood trial on a charge that at about 11.15 a.m. on 28.07.2006, he was found transporting 1.1 kgs. of Ganja in a bag carrying in a scooter bearing Reg.No.KL-13-D-4468, which he was riding from Kannur Government Hospital to Thayyil. 3. The Special Court recorded evidence of PWs.1 to 7 and marked Exts.P1 to P11. MOs.1 to 8 were the objects 3 Crl.Appeal No.163 of 2008 identified. During the examination of the appellant under Section 313(1)(b) of Cr.P.C., apart from denying all the incriminating circumstances that appeared in evidence against him, he set up a defence that he was a pedestrian having no connection with the scooter or the contraband seized by PW3 and that he was falsely implicated in the case. The Special Judge did not accept the case of the defence, but held that the prosecution proved beyond doubt the guilt of the accused. 4. As per the order dated 24.01.2008, the sentence imposed on the appellant was suspended and he was granted bail. The appeal was admitted to file on the same day. 5. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor. 6. The learned counsel appearing for the appellant would contend that this is a case where not only evidence is lacking to prove complicity of the appellant with the alleged crime, but also there is a slew of procedural infirmities in the case of the prosecution. PWs.3 and 4 are the witnesses, who spoke about the seizure of the contraband and the arrest of 4 Crl.Appeal No.163 of 2008 the accused. Although PWs.1 and 2 were examined to prove the incident, they did not support the case of the prosecution by deposing that they did not see the arrest of the accused or seizure of anything from his possession. They only had stated before the court that while riding on a motorcycle they were asked by the police to stop at the place of occurrence and as required by the police personnel, they had signed Ext.P1 mahazar. Thus, the independent witnesses cited by the prosecution took a stand that they did not witness the appellant riding the motorcycle carrying the contraband or the seizure. The appellant would contend that the evidence of PWs.3 and 4 is insufficient, in the absence of any independent evidence, to establish the complicity of the appellant, especially, in the light of the procedural lapses. 7. The procedural lapses pointed out are that,- - (i) Ext.P4 arrest memo does not contain signature of any witness, and the process of arrest thereby violated the provisions of Section 41-B of the Code; - (ii) the contraband was weighed using a balance taken from a nearby shop, which is not a duly certified one; 5 Crl.Appeal No.163 of 2008 - (iii) no sample from the Ganja allegedly found in the pocket of the pant worn by the appellant was taken; - (iv) the scooter was not produced in court; - (v) Ext.P2 report sent under Section 42(2) of the NDPS Act does not satisfy the statutory requirement inasmuch as it does not contain reasons supporting the satisfaction of PW3, requiring him to have a search; and - (vi) provisions of Section 50 of the NDPS Act are not complied with. 8. PW3 deposed in detail regarding the circumstances under which he happened to search the person of the appellant and also the scooter driven by him. He got reliable information regarding transportation of Ganja and it was on the basis of that information, he went to the place of occurrence. He deposed that he had entered the information in the General Diary and sent a report as required in Section 42(2) of the NDPS Act to his superior officer. While he along with his subordinates was waiting at Arathakkappalli road junction in Kannur City, the accused came from the hospital side in a scooter. He was stopped and after passing to him necessary information, conducted the search. His body as well 6 Crl.Appeal No.163 of 2008 as the scooter were searched. PW3 deposed that in the polythene bag hung on the handle of the scooter, it was Ganja. His body was also searched. PW3 deposed before the court that he was informed of his right to have his person searched in the presence of a Gazetted Officer or a Magistrate. Since he waived that right and put it in writing in Ext.P3, PW3 had searched his body. Apart from other articles, two paper packets of Ganja were found in the pocket of his pants. Ganja thus found weighed 1.1 kilograms. After preparing two samples of 10 grams each, the articles were seized under Ext.P1 mahazar. PW4, a police constable who accompanied PW3, also deposed regarding the said process. 9. As pointed out above, PWs.1 and 2, who are independent witnesses, deposed in court that they signed Ext.P1 mahazar. They, however, denied having seen the arrest of the accused or seizure of anything from his possession. In the cross-examination by the Public Prosecutor with the permission of the court, nothing more could be brought out from them. Thus their evidence is not helpful to prove the 7 Crl.Appeal No.163 of 2008 arrest of the appellant or seizure of the contraband from his possession. Their evidence would support the oral testimony of PWs.3 and 4 to the extent that they prepared Ext.P1 at the place of occurrence at the time and date as stated by them. ## 10. The Apex Court in **Karamjit Singh v. State (Delhi Administration) [ AIR 2003 SC 1311]** held that,- “The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down.” 11. On going through the entire testimonies of PWs.3 and 4, nothing to discredit their veracity can be seen. The appellant has no case that the said witnesses have any previous acquaintance with him or that there has been a reason to foist a case against him. When their evidence withstood the searching cross-examination, there is no reason to disbelieve them. 8 Crl.Appeal No.163 of 2008 12. It is the requirement of Section 41-B of the Code that whenever a person is arrested, the arresting officer to prepare a memorandum of arrest, which shall be attested by at least one witness and countersigned by the arrestee. Ext.P4 is the arrest memo. It does not contain signature of any witness. In this regard, PW3 had an explanation that PWs.1 and 2 reached only subsequent to the arrest, but in their presence only, the seizure was effected. The said version is very much probable. It is a definite version of both PWs.3 and 4 that they reached the place of occurrence at 11.30 a.m. and were waiting there, the accused came riding his scooter. PWs.1 and 2 almost in similar terms deposed that at or about 12.30 they reached the place in their motorcycle. So there was no possibility for them to see the arrest. In those circumstances, failure of PWs.1 and 2 to sign Ext.P4 cannot be a reason to hold that the arrest is illegal or incorrect. 13. In **Rafeeque v. Sub Inspector of Police [2020 (4) KLT 188]** , this Court considered the effect of nonattestation by any witness in the arrest memo. In that case, 9 Crl.Appeal No.163 of 2008 the arrest memo did not contain signature of any witness and that reason was held to be a factor affecting credibility of the case of the prosecution. It may be noted that in that case, the arrest memo was signed by only one among the two accused. Further, there are other circumstances compelling the court not to believe the seizure of the contraband from the possession of the accused. Taking all such aspects into consideration only, this Court held that absence of attestation in the arrest memo by a witness created doubt in the search and seizure. The facts of this case are totally different and the said principle can have no application in this case. Here, the evidence of PWs.3 and 4 is cogent and convincing. The version of PWs.1 and 2 also support their version insofar that they reached the place of occurrence after the arrest only. In the said circumstances, absence of attestation by a witness in Ext.P4 does not affect the case of the prosecution. 14. PW3 deposed that the contraband seized from the possession of the appellant was weighed using a balance obtained from a nearby shop. PW7, the investigating officer, 10 Crl.Appeal No.163 of 2008 did not check whether the said balance was one duly maintained. Pointing out that aspect, it is contended that the weight shown in Ext.P1 mahazar of the Ganja cannot be said to be accurate. Incidentally one more aspect was pointed out that the Ganja taken from the pants pocket of the appellant was not weighed separately. 15. A weighing balance is expected to be certified by the Legal Metrology Department periodically. It is not known whether the balance used by PW3 was one of such a kind. But it can be seen from Ext.P8 property list that the material objects were received in court after verification and the certification thereof shows that MO5, the Ganja, remained after preparation of two samples of 10 grams each, was 1.08 kilograms. From that, it can well ensure that the weighing of the contraband done by PW3 was correct. 16. It is seen that PW3 mixed up the Ganja allegedly found in the polythene bag and in the pants pocket of the appellant. Samples were prepared from that mixture. The learned counsel appearing for the appellant contended that 11 Crl.Appeal No.163 of 2008 separate samples should have been prepared and the lapse thereof tells upon the credibility of the prosecution case. PW3 is a Sub Inspector having sufficient experience. He after confirming that the articles found in the polythene bag as well as paper packets were of the same kind and the quantity found in the pants pocket of the appellant was negligible, no samples therefrom was separately drawn. Compared to the weight of the contraband in the polythene bag, the weight of the Ganja in the paper packets was very less. Both were confirmed by PW3 to be of same origin. In such circumstances, failure to draw a separate sample from the contraband found in the pants pocket of the appellant has no consequence. 17. The scooter in which the appellant is said to have carried the contraband were not produced in court. Its description is very much there in Ext.P1 seizure mahazar. Purpose of production of an object in court is to prove its identify, which is relevant under Section 9 of the Evidence Act, 1872. In a prosecution of this nature, identify of the vehicle 12 Crl.Appeal No.163 of 2008 has no importance, unless the same is raised and it has become a fact in issue. Here, the case of the appellant is one of the total denial identity of the scooter is not raised as an issue. His ownership is totally irrelevant; the question is only whether or not the appellant rode the scooter as alleged. Riding of the scooter by the appellant is sufficiently proved by the prosecution. Hence, non-production of the scooter in court does not affect the case of prosecution in any manner. 18. Ext.P3 is the statement acknowledged by the appellant waiving his right provided under Section 50 of the NDPS Act. The appellant did not insist on to do the search in the presence of a Gazetted Officer or a Magistrate, and therefore, the search conducted by PW3 himself cannot be said to be faulty. That apart, almost the whole portion of Ganja was found in the polythene bag hanging on the handle of the scooter. ## 19. In **State of H.P. v. Pawan Kumar [(2005) 4 SCC 350]** , the Apex Court held as under: "11. A bag, briefcase or any such article or container, 13 Crl.Appeal No.163 of 2008 etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in S.50 of the Act." 20. In **Dilip and another v. State of Madhya Pradesh [(2007) 1 SCC 450]** on the basis of the information, a search of the person of the accused was conducted. Nothing was found on their person. But on the search of the scooter they were riding, Opium contained in a plastic bag was recovered. The Apex Court held that provisions of Section 50 of the NDPS Act might not have been 14 Crl.Appeal No.163 of 2008 required to be complied with so far as the search of the scooter is concerned, but keeping in view the fact that the person of the accused was also searched, it was obligatory on the part of the officers to comply with the said provisions, which was not done. 21. In this case, therefore, the bag carried on the handle of the scooter ridden by the appellant, cannot be said to be part of his body. As such, there was no requirement of complying with the provisions of Section 50 of the NDPS Act for the search of the said bag. For his body search Section 50 of the NDPS Act should have been complied with. The appellant as per Ext.P3 waived the right under Section 50 and hence there is no infirmity in the process of search in this case. 22. Ext.P2 was forwarded to the Circle Inspector of Police by PW3 before proceeding with the search. The vice pointed out to Ext.P2 is that the reasons for PW3 arriving at a conclusion that search was required was not stated in it. The subsequent events undoubtedly justified the search conducted 15 Crl.Appeal No.163 of 2008 by PW3. Section 42(2) of the NDPS Act envisages only that the searching officer is satisfied that there was a need for a search. Ext.P3 certainly contains reasons for PW3 believing that a search was required. In the circumstances, there is no reason to hold that there was procedural infraction in the matter of conducting the search. 23. In **Makhan Singh v. State of Haryana [(2015) 12 SCC 247]** , the Apex Court held that it is a well settled principle of criminal jurisprudence that the more stringent the punishment, the more heavy is the burden upon the prosecution to prove the offence. Therefore, there is a heavy burden on the prosecution in this case to adduce sufficient evidence in order to prove the guilt of the accused. 24. The defects in the prosecution case pointed out by the appellant are not of such a nature sufficient to disbelieve its case brought out through the oral testimony of PWs.3 and 4 and Exts.P1 to P5. After the seizure, PW3 sent a report on 28.07.2006 as contemplated in Section 57 of the NDPS Act to the Circle Inspector. The evidence on record shows that all 16 Crl.Appeal No.163 of 2008 procedural requirements were complied with during the arrest, search, seizure, and submission of the report and the articles before the court. 25. Ext.P11 is the forwarding note. On the basis of it the samples were sent for chemical examination, pursuant to which Ext.P10 report was obtained. The report would show that the sample was Ganja (cannabis sativa). Pointing out the weight of one of the samples was 9.22 grams instead of 10 grams as stated in the mahazar, it was contended that there arose a doubt regarding the genuineness of the sample tested. The samples were analyzed a few months after the seizure. There is every possibility for drying up and for a reduction in its weight. A trivial variation in the weight of the sample therefore cannot have any impact on the reliability of Ext.P10 report or the case of the prosecution. 26. Taking all such matters into account, I am of the view that the evidence let in by the prosecution proved beyond doubt that the appellant possessed 1.1 kilograms of Ganja as alleged in the charge. The findings of the Special 17 Crl.Appeal No.163 of 2008 Court that the appellant was guilty for the charge and the resultant conviction are therefore not liable to be interfered with. 27. Coming to the sentence, the appellant was imposed with rigorous imprisonment of three years and to pay a fine of Rs.5,000/-. The weight of the Ganja seized from the possession of the appellant was 1.1 kilograms. 1 kilogram is the small quantity of Ganja. Commercial quantity is 10 kilograms. Considering the fact that the contraband possessed by the appellant was little above the small quantity, a lenient view in the matter of sentencing is liable to be taken. Hence, the sentence is reduced to one year rigorous imprisonment and a fine of Rs.5,000/- with a default sentence of three months for the offence the appellant has committed, which is punishable under Section 20(b)(ii)(B) of the NDPS Act. The appeal is allowed in part by only modifying the sentence as above. **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr