Pramod v. State of Kerala

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 6[TH] DAY OF JUNE 2023 / 16TH JYAISHTA, 1945 ``` ``` CRL.A NO. 941 OF 2019 ``` ``` AGAINST THE JUDGMENT DATED 14.02.2018 IN SC NO.1129/2014 OF II ``` ``` ADDITIONAL SESSIONS COURT, KOLLAM ``` ## `APPELLANT/3RD ACCUSED:` ``` PRAMOD, AGED 43 YEARS, S/O CHELLAPPAN, VADAKKEKKARA PUTHEN VEEDU, EZHUKONE VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT - 691506. ``` ``` BY ADVS.SRI.N.SUNIL JOSEPH SRI.B.BIPIN ``` ## `RESPONDENTS/COMPLAINANT & STATE:` ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM - 31. 2EXCISE INSPECTOR, KARUNAGAPPALLY EXCISE RANGE, KOLLAM DISTRICT - 690 518. ``` ``` BY PUBLIC PROSECUTOR SMT. NIMA JACOB ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.A. No.941 of 2019 -:2:- ## **`JUDGMENT`** ## **`Dated this the 6[th] day of June, 2023`** This appeal is directed against a judgment passed by II Additional Court of Sessions, Kollam (for short ‘the court below’) on 14.02.2018 in SC No.1129/2014. The appellant is the 3[rd] accused in the above case **`.`** Crime No.08/2009 was registered by Karunagappally Excise Range alleging commission of offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’). 2. The allegation in the case was that on 29.09.2009 at about 6 p.m. 1[st] and 2[nd] accused in the case were found in possession of and engaged in the transit of 6.060 kgms of ganja in an autorickshaw. The ganja was entrusted to them by the 3[rd] accused and thereby they committed the offence as stated above. The case was investigated by the Excise Inspector, Karunagappally and on conclusion of the same a complaint was lodged alleging commission of the offence. The same was taken cognizance of by the court. Production warrant was issued to Crl.A. No.941 of 2019 -:3:- accused No.1 who was in judicial custody. Accused No.3 was also in judicial custody in connection with some other case and therefore by production warrant his presence was also procured before the court. Free legal aid was provided to both accused. Later on accused No.2 also appeared before the court on receipt of summons issued therefrom and he was represented by a lawyer. Copies of prosecution records were furnished to each of the accused. After perusal of the relevant records furnished by the prosecution and upon hearing the learned Public Prosecutor and the defence counsel charge was framed under Section 20(b) (ii)(B) of NDPS Act. It was read over and explained to each of the accused. They pleaded not guilty. Thereupon trial was scheduled and held. 3. On the side of the prosecution, PWs 1 to 10 were examined and Exts.P1 to P23 and MO1 to MO3 were marked. On closure of the prosecution evidence each of the accused were questioned under Section 313 (1) (b) of the Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C.’) with reference to the incriminating circumstances brought against them in evidence. ## Crl.A. No.941 of 2019 -:4:- They denied all the incriminating circumstances put to them and claimed to be innocent. Thereafter both the learned Public Prosecutor and the defence counsel were heard under Section 232 Cr.P.C. Grounds having not been found to record an order of acquittal, the accused were asked to enter upon their defence. None of the accused adduced any evidence. The trial court framed the following points for consideration. - “1.Whether A1 and A2 were arrested while possessing and engaged in transport of 6.060kgms of ganja as alleged? 2. If so whether the ganja recovered from A1 and A2 was entrusted with them by 3[rd] accused? 3. What, if any, is the offence proved against the accused? 4. Sentence and punishment?” 4. The court below considered points 1 to 3 together and arrived at a finding that accused numbers 1 to 3 were guilty for the offence punishable under Sections 20(b)(ii)(B) NDPS Act and convicted and sentenced them. Each of the accused were sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.1,00,000/- under Section 20(b)(ii) (B) Crl.A. No.941 of 2019 -:5:- NDPS Act. In default of payment of fine each of the accused were also directed to undergo rigorous imprisonment for six months more. Set off was also allowed for the period already undergone by the accused in custody during trial. Aggrieved by the finding of guilt, order of conviction and sentence imposed, the 3[rd] accused has approached this Court in the appeal on hand. 5. Sri. B.Bipin, the learned counsel representing the appellant contended that he was implicated in the crime in question solely based on the confession statement recorded from the 1[st] and the 2[nd] accused. According to him, apart from the confession statement other evidence is not forthcoming before the court below to base the finding entered by it that the 3[rd] accused is guilty of the offence under Section 20(b)(ii)(B) NDPS Act. According to him, the court below is highly unjustified in arriving at a finding of guilt as against the 3[rd] accused and convicting and sentencing him. 6. The learned counsel has also relied on **Murukadas** @ **Murukan v. State of Kerala [2020 (2) KHC 451]** and **Tofan Singh v. State of Tamil Nadu [2020 (6) KHC 111]** . It is Crl.A. No.941 of 2019 -:6:- contended by the learned counsel that the question considered in **Murukadas @ Murukan** supra was that whether confession of a co-accused is sufficient to frame a charge against the other accused. According to him confession made by a co-accused to the Investigating Officer, comes within the interdiction under Section 25 of the Evidence Act, 1872 and it is insufficient to frame a charge against another accused. The learned counsel has also contended on the basis of **Tofan Singh** supra that confession statement made to an excise official is also barred under Section 25 of the Evidence Act, the official being a police officer within the meaning of Section 53 NDPS Act and therefore it cannot be relied on to convict an accused for an offence under the NDPS Act. 7. As per the case of the prosecution, the recovery of the contraband was effected from the 1[st] and the 2[nd] accused. They were arrested and the crime alleging commission of offence under Section 20(b)(ii)(B) was registered against them. After the arrest they gave confession statement to the Exice Inspector, Karunagappally, who was investigating the case then that the Crl.A. No.941 of 2019 -:7:- contraband recovered from them was supplied to them by the 3[rd] accused. Based on the confession statement, investigation was conducted by the Investigating Officer and the name of the 3[rd] accused was also brought into the crime. On concluding the investigation, a final report was laid chargesheeting the 3[rd] accused also for commission of the above offence. It is found from the evidence on record that an Omni Van was recovered from the possession of the 3[rd] accused pursuant to recording of confession statement from the 1[st] and the 2[nd] accused. 8. The learned Public Prosecutor has submitted that nothing incriminating was recovered either from the 3[rd] accused or from the Omni Van seized in the case on hand. Therefore, apart from the confession statement, other evidence was not available to the court below to reach a finding that the 3[rd] accused was also guilty of commission of offence under Section 20(b)(ii) (B) NDPS Act. 9. It is pertinent to note that the confession statement of the co-accused were recorded by the Excise Inspector. The position of law is now settled that evenif a confession statement Crl.A. No.941 of 2019 -:8:- is recorded by an Excise Official, it would be at par with recording of statement by a police officer and therefore is interdicted under Section 25 of the Evidence Act. It has been held by the Apex Court in **Tofan Singh** supra that officers who are invested with powers under Section 53 NDPS Act are “Police Officers” within the meaning of Section 25 of the Evidence Act and as a result, any confession statement made to them would be barred under that provision and cannot be relied on for the purpose of finding an accused guilty for an offence under the NDPS Act and convicting and sentencing him. 10. In **Murukadas @ Murukan** supra a Single Bench of this Court has also held that a confession of the co-accused is insufficient to frame a charge against other accused, since the interdiction under Section 25 Evidence Act would very well be attracted. 11. In view of the above discussion, this Court has no hesitation to hold that the impugned judgment as against the 3[rd] accused/appellant will not sustain. Crl.A. No.941 of 2019 -:9:- In the result, Criminal Appeal is allowed. The finding of guilt, order of conviction and imposition of sentence as per judgment under challenge, as against the appellant, who is the 3[rd] accused in SC No.1129/2014 on the files of the court below are reversed. It is submitted that the appellant is undergoing the sentence imposed. He is ordered to be released forthwith from the jail. The authorities of jail shall be informed about the reversal of judgment as against the 3[rd] accused/appellant forthwith so as to enable them to release him therefrom. Sd/- **MARY JOSEPH, JUDGE.** MJL