Paul KuriaKose v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 20TH DAY OF SEPTEMBER 2016/29TH BHADRA, 1938** **CRL.A.No. 190 of 2015 () ------------------------SC 633/2013 of HON'BLE V ADDL.SESSIONS COURT, ERNAKULAM -----------** **APPELLANT(S)/ACCUSED: --------------------** **PAUL KURIAKOSE, AGED 41 YEARS, S/O.KURIAKOSE, PALLATH HOUSE, NEAR ST.MARY'S CHURCH VATHUKUDY VILLAGE, IDUKKI DISTRICT.** **BY ADV. SRI.MATHAI VARKEY MUTHIRENTHY** **RESPONDENT(S)/COMPLAINANT:** **--------------------------** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.PUSHPALATHA M.K.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-8-2016, THE COURT ON 20-09-2016 DELIVERED THE FOLLOWING:** **bp** ## **RAJA VIJAYARAGHAVAN, V., J.** ------------------------------------------ ## **Crl.A. No.190 of 2015** -----------------------------------------Dated this the 20[th] day of September, 2016 ## **J U D G M E N T** ## **~~~~~~~~~~~** - 1.The present appeal is directed against the judgment dated - 23/01/2015 in S.C.No.633/2013 on the file of the Additional Sessions Judge-V, Ernakulam. By the above judgment, the appellant herein has been found guilty under 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and he has been sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 1,00,000/- and in default to undergo simple imprisonment for 2 years. - 2.Facts in brief is that on 18/04/2013, PW5, the S.I. of Police, Ernakulam South Police Station received reliable information that one person was standing by the side of the toddy shop near to the Atlantis Railway Gate and that Crl.A. No. 190 of 2015 **-2-** he was dealing with ganja. The fact was recorded in the general diary and a copy was sent to the Circle Inspector of Police, Town South police station, his official superior. Thereafter, he rushed to the spot along with CW2 to CW4, his subordinate officers. At about 3:10 p.m, the police party reached near the toddy shop and they found the accused standing outside the toddy shop carrying a blue and red coloured bag. On seeing the police officials, the accused made an attempt to flee. He was intercepted and after introducing himself, informed the accused that reliable information has been received that he was possessing Ganja for the purpose of sale and that the police officers proposed to conduct a search. He was informed of his right and he was asked whether he required the presence of a Magistrate on a Gazetted officer. When the accused insisted for the presence of the gazetted officer, Exhibit P6 request was prepared and the Crl.A. No. 190 of 2015 **-3-** same was transmitted to PW6, the Excise Circle Inspector. At about 4:30 p.m., PW6 arrived at the spot and in his presence, PW5 conducted search on the body of the accused. On inspection of the bag possessed by accused it was found to contain one plastic sack bundle, tied using a jute twine. On opening the said sack, it was found to contain dry ganja. The accused was arrested and Ext.P2 arrest memo was prepared. The contraband was found to weigh 6.650 kg. A sample of 50 gms was collected after complying with the procedure and in the presence of the witnesses. The contraband and sample were separately labeled and sealed in the presence of independent witnesses and the signature of the detecting officer, gazetted officer and independent witnesses were also affixed. Thereafter, Ext.P1 seizure mahazar was prepared in which the details were mentioned and the specimen impression of the seal was affixed. Crl.A. No. 190 of 2015 **-4-** 3.Exhibit P5 report was sent to PW7, the C.I. of Police, Town South Police Station, Ernakulam, the superior officer of PW5. PW7, then took over investigation. He questioned the witnesses and forwarded the sample of contraband to the chemical lab and obtained Ext. P11 chemical analysis report. The said report revealed that the contraband seized was ganja. The Village Officer was directed to prepare the site plan and after completing the investigation laid the final report before the Principal Sessions Court, Ernakulam. - 4.The accused appeared on summons and after hearing the prosecution and the accused, a charge under Section 20 (b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 was framed against him. When the charge was read over, he pleaded not guilty and claimed that he be tried. Crl.A. No. 190 of 2015 **-5-** 5.In the trial which followed as many as 7 witnesses were examined by the prosecution as PWs 1 to 7 and through them Exts.P1 to P11 were marked. MOs 1 to 3 were produced and identified. 6.After the close of prosecution evidence the incriminating materials arising from the evidence was put to the accused under Section 313 (1) (b) of the Code of Criminal Procedure. The appellant denied the materials and according to him he was taken into custody on 15/04/2000 by two Civil Police Officers from the K.S.R.T.C. bus stand at Perumbavoor. He was brought to the City Police Commissioner's Office, Ernakulam and he was kept under illegal confinement for 2 days. On 17/04/2013 at about 9 p.m., he was brought to the Ernakulam South Police Station and on 18/04/2013, he was brought to the place of occurrence in a police Jeep Crl.A. No. 190 of 2015 **-6-** and the arrest was recorded. According to the appellant, no contraband article or narcotic substance was recovered from his possession and he was falsely implicated. No evidence either oral or documentary was adduced on his side. 7.The learned Additional Sessions Judge after evaluating the oral and documentary evidence and after hearing the rival submissions concluded that the oral evidence of PW 5 who detected the offence stands corroborated by the independent witnesses who were examined as PWs 1 and 2 . The evidence of PW6, according to the Court below, amply supported the other evidence. The infirmities pointed out by the defence were all considered in detail and it was finally concluded that the mandatory formalities were duly complied with. Holding so, the accused was found guilty and he was convicted accordingly. The above Crl.A. No. 190 of 2015 **-7-** findings are assailed in this appeal. - 8.I have heard the learned counsel appearing for the appellant and also the learned Public Prosecutor. 9.According to the learned counsel the mandatory formalities as regards search and seizure was violated by PW5, the detecting officer. It is vehemently urged that the conviction is vitiated for non-compliance of Section 42 of the NDPS Act, 1985. It is further urged that infraction of Sections 50 and 57 of the Act will render the conviction bad. According to the learned counsel, there is undue delay in the contraband articles being produced before the Sessions Court. The detection was on 18.4.2013 and though it was produced before the Court of the Additional Chief Judicial Magistrate on the next day, it was returned for production before the proper Court. It is then produced only on 18.6.2013, which aspect would strike a telling Crl.A. No. 190 of 2015 **-8-** blow on the prosecution case. It is further assiduously argued that though the evidence of independent witnesses appeared at first blush to corroborate the evidence of the investigating officer, a closer scrutiny would reveal that there were material inconsistencies between the evidence tendered by the witnesses. Summing up, it is contended that the quantity seized was intermediate in quantity and the sentence of 5 years imposed is highly excessive. - 10.The learned Public Prosecutor, on the other hand, would submit that the contention of the learned counsel that the mandatory provisions have been violated is misconceived . It is pointed out that the seizure was from a public place and there was no question of complying with Section 42 (1) and (2) of the Act. Though Section 43 of the Act is applicable , PW5 has reduced the information into writing and a report was duly submitted to his superior officer. Crl.A. No. 190 of 2015 **-9-** PW6 , the Circle Inspector of Excise, in his capacity as a gazetted officer, had witnessed the search and Ext.P1 mahazar would clearly show that all the mandatory formalities were complied with in letter and spirit. That being the case, there is no question of non-compliance of Section 50 of the Act. It is further contended that the contraband article was seized from the bag carried by the accused and Section 50 was therefore inapplicable. Insofar as the production of the contraband articles is concerned, it is the submission of the learned Public Prosecutor that on the next day of the seizure, the contraband articles were produced before the Chief Judicial Magistrate Court properly sealed and labelled along with the search list and other records. The arrest memo, inspection memo and Ext.P1 seizure mahazar reached the court on the next day itself. The promptness of the contraband articles reaching the court along with Crl.A. No. 190 of 2015 **-10-** the mahazar and other contemporaneous records would clearly rule out any foul play. According to the learned Public Prosecutor, there is absolutely no reason to disbelieve the official witnesses and the independent witnesses who all gave a convincing version as to the search and seizure. There is no reason warranting interference is the submission . - 11.I have considered the rival submissions and have gone through the materials on record. 12.PW1 and PW2 are the independent witnesses examined by the prosecution to prove the arrest and seizure. Their version with regard to the arrest and seizure is cogent and convincing and clearly corroborates the version of the detecting officer and the gazetted officer who was examined as PW6. They were present at the time of preparation of the arrest memo, custody memo and Crl.A. No. 190 of 2015 **-11-** inspection memo and PW1 has affixed his signature in Ext.P1 seizure mahazar as well. The signature of PW2 finds a place in Ext.P2 arrest memo. They have identified Exts.P1 to P3 and have deposed before Court that the accused was the person who was arrested with the contraband . 13.PW5 is the Sub Inspector of Police, Town South Police Station who detected the offence. He deposed that he had received credible information that a person was standing in front of the Toddy Shop near to the Atlantis Railway Gate wearing a white shirt and Dhoti and he was dealing with Ganja. The said information was duly recorded in the General Diary and his superior officer was intimated as per Ext.P5. PW5 along with CWs 2 to 4 rushed to the spot and on seeing the police party the appellant attempted to enter the toddy shop premises. He Crl.A. No. 190 of 2015 **-12-** was intercepted and after informing him of the identity of the officers, disclosed their intention to conduct a search. As per the mandate, the appellant was informed of his right to be searched in front of a gazetted officer and based on his request, PW6, the Circle inspector of Excise was requested to come to the spot. At 4:30 p.m., the Circle Inspector of Excise arrived at the spot and after conducting personal search, searched the bag which was found in the possession of the appellant. A plastic sack was found inside the bag and when the same was opened it was found to contain ganja. At 4:45 p.m., the accused was arrested and since the ganja could not be weighed using the weighing balance brought by the search party, an electronic weighing balance was brought from the nearby shop. The contraband articles were found to weigh 6.650kg. A sample of 50gm was taken for the purpose of analysis and it was covered, sealed and labeled in Crl.A. No. 190 of 2015 **-13-** accordance with law. The sample was marked as S1. The signature of the appellant, PW6, PW1 and PW2 were affixed in the label and the same was sealed. The rest of the contraband was separately sealed and labeled and the same was marked as Ext. P1. The sack and the jute twine were packed and labeled as Ext.P2 and the bag in which the sack containing ganja was kept was packed, sealed and labeled as Ext.P3. - 14.The procedures carried out by PW5 are mentioned in detail in Ext.P1 mahazar. The signature of the independent witnesses and the gazetted officer was obtained and the specimen seal used for sealing the sample and the thondy articles was affixed on Ext.P1. 15.Ext. P5 report was then sent to PW6, his superior officer. While he was examined , he identified MOs 1 to 3 and also proved Exts. P1, P2, P5 and P 7 series. He stated that the Crl.A. No. 190 of 2015 **-14-** accused was brought to the Police Station and thereafter Crime No.380/2013 was registered. Ext.P9 remand application was prepared and the accused was produced before Court. He also stated that he had submitted a report before PW7, his superior officer. 16.PW6 is the Circle Inspector of Excise, Ernakulam and he deposed before court that based on the requisition of PW5, he arrived at the spot and he had occasion to witness the search. Through him Ext.P6 requisition was proved. He narrated before Court that the accused was informed of his right by PW5 and after conducting personal search, had seized the bag from the possession of the accused. The cement sack containing Ganja was found inside the Bag. He deposed as regards the seizure, weighing, sampling, labeling of the contraband article and went on to state that he had affixed his signature in the Crl.A. No. 190 of 2015 **-15-** label affixed on MO1 to MO3 and also in Ext.P1. 17.PW7 is the Circle inspector of Police, Town South Police Station, Ernakulam, who took over investigation. He had questioned the witnesses and had recorded their statements. He forwarded Ext.P10 forwarding note and produced the contraband items before the Sessions Court Ernakulam. The sample which was seized by PW5 was forwarded to the Regional Chemical Lab, Kottayam. Ext.P11 is the chemical analysis report which revealed that the sample analyzed was ganja. It was at his instance the scene plan was prepared by the Village Officer. He deposed that he had completed the investigation and laid the final report. 18.The first contention raised by the learned counsel appearing for the appellant is regards the non-compliance with Section 42 of the NDPS Act. The learned counsel Crl.A. No. 190 of 2015 **-16-** would refer to the judgment of the Apex court in **State of West Bengal and others V Babu Chakraborty** [2004 (12) SCC 201], **State of Punjab V Balbir Singh** [1994 (3) SCC 219], **Sukhdev Singh V State of Haryana** [AIR 2013 SC 953], and **Rajender Singh V State of Haryana** [2011 (8) SCC 130] to bring home the point that the prosecution is liable to fail as the mandatory provision contained in Section 42(1) and (2) of the NDPS Act has been violated in its entirety. According to the learned counsel, when mandatory provisions are not complied with and in a case where the evidence does not inspire confidence of the court, the accused would be entitled to be acquitted. 19.I am of the view that the said contention of the appellant is without any merit. Section 43 of the NDPS Act contemplates seizure made in the public place. There is a Crl.A. No. 190 of 2015 **-17-** distinction between Section 42 and Section 43 of the NDPS Act. If a search is made in a public place, the officer conducting the search is not required to comply with sub Sections (1) and (2) of Section 42 of the NDPS Act. As has been stated earlier, the seizure has taken place near the Atlantis Railway Gate and while the appellant was standing in front of a toddy shop . As the place is a public place and Section 43 comes into play, the question of non-compliance of Section 42(2) does not arise. The aforesaid view gets support from the decisions in **Directorate of Revenue and Another. v. Mohammed Nisar Holia** [2008 (2) SCC 370] and **State, NCT of Delhi v. Malvinder Singh** [2007 (11) SCC 314]. - 20.There is no merit in the submission of the learned Counsel that Section 50 of the NDPS Act has been violated. In the instant case, seizure was from a bag Crl.A. No. 190 of 2015 **-18-** which was found in the possession of the accused. Inspite of the above, PW6, the Gazetted officer was requisitioned by Extt.P6 requisition to witness the seizure. The evidence tendered by PW6 will go a long way in corroborating the version of PW5. 21.It is also borne out from the evidence of the PW5 that immediately on receipt of information, PW5 had recorded the same in the general diary and a report was sent to his official superior, who is examined by the prosecution as PW7. As per Section 57 of the Act , whenever any person makes any arrest or seizure under the Act, he shall, within forty eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior. A three - Judge Bench of the Apex Court in **Sajan Abraham V State of Kerala** [2001 (6) SCC 692] after placing reliance on State of Crl.A. No. 190 of 2015 **-19-** **Punjab v. Balbir Singh** [1994 (3) SCC 299] has held that Section 57 is not mandatory in nature and when substantial compliance is made, it would not vitiate the prosecution case. On going through the prosecution materials, it appears that there has been substantial compliance with Section 57 of the NDPS Act as well . 22.The next contention raised by the learned counsel is with regard to the alleged delay in dispatching the sample to the Court of the Additional Sessions Judge. In order to prove the sending of the sampling to the court, the prosecution has examined PW3 the thondy clerk attached to the Sessions Court, Ernakulam. Ext.P3 list would reveal that the contraband article was initially produced before the Additional Chief judicial Magistrate Court Ernakulam, on 19.4.2013.The endorsement in Exhibit P3 of the Chief Judicial Magistrate would reveal that the said articles were Crl.A. No. 190 of 2015 **-20-** ordered to be produced before the proper court. PW3 would state in his evidence that it was on 15/06/2013 that item number 1 to 4 were produced before the Sessions Court. He would further state that the items were found sealed and labeled and it was found intact. The seals tallied with the sample seal provided and therefore the contents were not verified. He also deposed that item number 2 to 4 in Ext.P3 were forwarded to AR Camp Kottayam and item No.1 was despatched to the Regional Chemical Lab, Kottayam for analysis. Ext.P11 is the report of chemical analysis in which it is reported that the material contained in the sample packet was Ganja. Ext.P11 further reveals that the seal on the packet were found intact and tallied with the sample seal provided. 23.It is borne out from the records that the seizure was effected by PW 5 on 18/04/2013. I have already held that Crl.A. No. 190 of 2015 **-21-** all the mandatory formalities with regard to search and seizure has been complied with. The evidence of PW1 and 2 independent witnesses also inspires confidence. PWs 5, 6 and 7 are the detecting officer, the Gazetted officer and the Investigating officer and they have all deposed in tune with the prosecution case . Their evidence was found to be cogent and convincing by the court below. After re-appraisal of the evidence let in, I find no reason to take a different view. The delay in producing the contraband article before the Court of Session has been properly explained by PW7 and in the light of the overwhelming evidence let in by the prosecution, I find no reason to doubt the same. 24.Another contention raised by the learned counsel appearing for the appellant is that Ext.P5 report and Ext.P6 requisitioning letter were brought into existence at Crl.A. No. 190 of 2015 **-22-** the time of submitting the final report. However, after going through the evidence of PWs 6 and 7 and that of the detecting officer, I am of the view that the same is meritless. 25.On an appreciation of the entire evidence, it leaves no doubt in my mind that the trial court has considered all the relevant aspects and have rightly concluded that the prosecution case against the appellant stands proved. I find no reason to take a different view in the facts and circumstances. I also do not find any merit in the contention raised by the appellant that that there has been infarction of the provisions of the NDPS Act. - 26.The learned counsel appearing for the appellant would contend that the sentence imposed on the appellant by the court below is excessive. It is pointed out that the quantity seized from the possession of the appellant was Crl.A. No. 190 of 2015 **-23-** 6.650 kg and he is a first-time offender. According to the learned counsel the sentence imposed has no rational nexus with the quantity seized, which was intermediate. According to the learned counsel, when the maximum sentence provided for the offence is 10 years for possessing 20 kgs of Ganja, the court below ought to have imposed a sentence which was proportionate with the quantum of contraband . 27.The learned Public Prosecutor would oppose the submission and submitted that no leniency is warranted in offences involving Narcotic Drugs. The hugely debilitating and deleterious effects that the drugs have over the general public was highlighted and it is submitted that no interference is warranted. When questioned as regards the sentence, the appellant had merely stated that he had nothing to say. Crl.A. No. 190 of 2015 **-24-** 28.The Court below, after having found that the appellant was found in possession of 6.650 kg of ganja, has imposed a sentence of rigorous imprisonment for Five years and to pay a fine of Rs. 1 lakh. A casual glance at the provisions of the NDPS Act will show that the punishment has been carefully graded corresponding with the quantity of the contraband. If the contravention involves small quantity, the accused is liable to be convicted with imprisonment for a term which may extend to one year or with fine which may extend to Rs. 10,000. Correspondingly for contraband involving quantity less than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to 10 years and with fine which may extend to Rs. 1 lakh. In respect of quantity involving commercial quantity the punishment is even more stringent. Thus it can be seen that there is considerable room to manoeuvre because the Crl.A. No. 190 of 2015 **-25-** choice of punishment is left to the discretion of the Judge with only the outer limits stated. In **State of Haryana v. Asha Devi and another** 2015 (8) SCC 39 , the Apex Court in a case involving possession of 11 kg of ganja, taking note of the fact that the commercial quantity is 20 kg or more convicted the accused and sentenced them to imprisonment for 5 years. In the case on hand ,it is not reported that the appellant is involved in crimes of identical nature. Having regard to the above facts , since the contraband seized is less than half of the upper limit of 20 kgs , I am of the view that rigorous imprisonment for 4 years with a fine of Rs. 50,000 with a default clause of imprisonment for 3 months in the event of nonpayment would serve the interests of Justice. - 29.In the result the appeal is allowed in part. While confirming the conviction, sentence imposed by the court Crl.A. No. 190 of 2015 **-26-** below is modified to rigorous imprisonment for 4 years and to pay a fine of Rs. 50,000 (Rupees Fifty Thousand Only) failing which the appellant shall undergo simple imprisonment for 3 more months. Set off as per law is allowed. **Sd/-** **RAJA VIJAYARAGHAVAN, V. JUDGE** Ps/17/9/16