Premchand @ Chippu Prem Nivas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY, THE 25TH DAY OF JUNE 2019 / 4TH ASHADHA, 1941** **CRL.A.No.243 of 2007** **AGAINST THE ORDER/JUDGMENT DATED 17.01.2007 IN SC 369/2005 of I ADDITIONAL DISTRICT COURT & ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM** ## **APPELLANT/1ST ACCUSED:** **PREMCHAND @ CHIPPU PREM NIVAS, T.C.NO.29/352, NEAR IRON BRIDGE, PALKULANGARA WARD, VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM DISTRICT.** **BY ADVS. SRI.C.R.SIVAKUMAR SMT.G.VIDYA SRI.SANTHOSH PETER (MAMALAYIL) SMT.C.B.BAGYALAKSHMI** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, CHATHANNOOR, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **SRI.B.JAYASURYA, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.06.2019, THE COURT ON 25.06.2019 PASSED THE FOLLOWING:** _Crl.Appeal No. 243 of 2007_ 2 ## **JUDGMENT** The 1[st] accused in S.C.No.369/2005 on the file of the 1[st] Additional Sessions Court, Kollam, is the appellant challenging his conviction and sentence by the Court under Sections 8(c) and 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act” for short). 2. The prosecution case in brief is thus: The appellant was found in possession of 400 ampules of narcotic substance known as _Tidigesic_ in 60 plastic covers containing 25 ampules each of 2 ml. capacity, while standing beside the National Highway at Aadichanelloor Village on 22.11.2003 at about 14.15 hours, by PW5, the S.I. of Police, Kottiyam and PW4, the Police Constable, who was accompanying him. The contraband was intended to be supplied to the 2[nd] accused and hence both of them were implicated. 3. The prosecution case rests on the oral testimony of PW1 to PW7, Exts.P1 to P10, and MO1 to MO18. On the basis which, while the 2[nd] accused was _Crl.Appeal No. 243 of 2007_ 3 acquitted, the appellant, after being examined under Section 313, Cr.P.C., convicted and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs.10,000/-, in default, to undergo simple imprisonment for one month more. PW2 and PW3, the independent witnesses, turned hostile. PW4 and PW5 testified regarding the seizure. PW5 proceeded on the reliable information over the phone, found the appellant standing beside the road under suspicious circumstances. He had recorded the information and intimated his immediate superior, the C.I. of Police, Chathannoor prior to proceeding to the scene of occurrence. The accused was restrained, and found carrying a plastic cover. The ingredients of which he pretended to be ignorant. On suspicion that he was in possession of psychotropic substance, PW2, informed him about his intention to subject him to search and also about his right to be so searched in the presence of a Magistrate or a Gazetted Officer. The accused insisted on presence of a Gazetted Officer for the search, and hence, requisition was sent vide Ext. P4 letter to the _Crl.Appeal No. 243 of 2007_ 4 Superintendent of the nearby hospital at Mayyanad, to spare the services of a Medical Officer, and thus PW1, the Medical Officer reached in time for the search. PW2 and PW3, the independent witnesses, called upon to witness the seizure, turned hostile. The prosecution, therefore relies on the testimonies of PW1, PW4 and PW5 to prove the seizure. The learned Additional Sessions Judge found the evidence sufficient to convict the appellant, who is aggrieved, and hence in appeal. 4. Heard the learned Counsel for the appellant Smt.C.B.Baghyalakshmi and the learned Public Prosecutor. 5. There are two grounds raised by the learned Counsel for the appellant to challenge the impugned judgment. The first ground is that the prosecution has not proved the compliance of Section 57 of the NDPS Act, which according to the learned Counsel, is mandatory. Section 57 reads thus: _“57._ **Report of arrest and seizure** _.- Whenever any person makes any arrest or seizure, under this 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.”_ _Crl.Appeal No. 243 of 2007_ 5 6. The second limb of argument advanced by the learned Counsel is that the specimen seal on the sample collected by the detecting officer has not been forwarded to the Court, and therefore, Ext.P10 FSL report, which confirms the ingredients of the sample contraband to be psychotropic substance, is not proved to be the one seized from the accused. 7. Regarding non-compliance of Section 57, the learned Counsel relies on a recent decision of this Court in _**Sidhik v. State of Kerala, 2018 KHC 756**_ , wherein it is held that non-compliance of the mandatory provision of Section 57 of the NDPS Act is fatal to the prosecution. In that particular case, the report submitted under Section 57 of the NDPS Act was not sent by the detecting officer to his immediate superior, instead, it was the investigating officer, who on taking over the investigation, sent a report to his superior, the Assistant Excise Commissioner, which according to the learned Single Judge, was not sufficient compliance of Section 57. _Crl.Appeal No. 243 of 2007_ 6 8. The learned Public Prosecutor would argue that Ext.P5, which is sent by the detecting officer to his immediate superior is sufficient compliance of Section 57, and therefore, the argument of the learned Counsel for the appellant is not sustainable. On perusal of Ext.P5, it is seen that the report was sent by PW5 prior to the seizure and soon after getting the intimation over phone regarding the accused being found under suspicious circumstances. This according to the learned Counsel for the appellant is in compliance with Section 42(2), which stipulates that on taking down an information regarding any narcotic drug or psychotropic substance, the officer, who based on the information, record grounds for his belief under sub-section (1) of Section 42 and shall within 72 hours send a copy thereof to his immediate official superior. But Section 57 contemplates a report to be prepared after the seizure and arrest of the accused. 9. I am in agreement with the learned Counsel for the appellant regarding the fact that Ext.P5 is not a report as contemplated under Section 57. In the decision _Crl.Appeal No. 243 of 2007_ 7 of this Court relied upon by the learned Counsel, there was non-compliance of Section 42, as also Section 50, and therefore, the learned Single Judge was justified in acquitting the accused on all those grounds put together. But in the instant case, there is compliance of Sections 42 and 50, and only non-compliance of Section 57. 10. The Honourable Supreme Court has in _**Dilbaugh Singh v. State of Punjab, 2017 (11) SCC 290**_ referring to two earlier decisions of the Supreme Court held as thus: _“14. .... in State of Punjab v. Balbir Singh - 1994 (3) SCC 299 the provisions of S.52 and S.57 of the Act had been held to be mandatory in character, it is pertinent to note that this Court in Sajan Abraham v. State of Kerala - 2001 (6) SCC 692 had exposited that S.57 was not mandatory in nature so much so that if a substantial compliance thereof is made, it would not vitiate the case of the prosecution. Incidentally the decision rendered in Balbir Singh (supra) was rendered by a Coram of two Hon'ble Judges whereas the one in Sajan Abraham (supra) was by a three Judge Bench._ _15. In Balbir Singh (supra), a Bench of two Hon'ble Judges of this Court had enunciated, adverting to S.52 and S.57 of the Act that these provisions contain certain procedural instructions for strict compliance by the officers, but clarified that if there was none, such omission by itself would not render the acts done by them null and void and at the most, it may affect the probative value of the evidence regarding arrest or search and in some cases, it may invalidate such arrest or search. That the non-compliance had caused prejudice to the accused persons and had resulted in failure of justice was necessary to be demonstrated, was emphasised. It was ruled that these provisions, which deal with the steps to be taken by the officers after making arrest or seizure under S.41 and S.44 are by themselves not mandatory and if there was non - compliance or any delay was involved with regard thereto, then it has to be examined, to ascertain as to whether any prejudice had been caused to the accused and further whether, such failure would have a bearing on the appreciation of evidence regarding arrest or seizure as well as on the merits of the case.”_ _Crl.Appeal No. 243 of 2007_ 8 ## In _**Sajan Abraham**_ (supra) relied upon by the Apex Court in _**Dilbaugh Singh**_ it was held thus; _“12. The last submission for the appellant is, there is non compliance of S.57 of the Act. He submits under it, an obligation is cast on the prosecution while making an arrest or seizure, the officer should make full report of all particulars of such arrest or seizure and send it to his immediate superior officer within 48 hours of such arrest or seizure. The submission is, this has not been done. Hence the entire case vitiate. It is true that the communication to the immediate superior has not been made in the form of a report, but we find, which is also recorded by the High Court that PW5 has sent copies of FIR and other documents to his superior officer which is not in dispute. Ext. P9 shows that the copies of the F.I.R. along with other records regarding the arrest of appellant and seizure of the contraband articles were sent by PW5 to his superior officer immediately after registering the said case. So, all the necessary information to be submitted in a report was sent. This constitutes substantial compliance and mere absence of any such report cannot be said it has prejudiced the accused. This Section is not mandatory in nature. When substantial compliance has been made, as in the present case it would not vitiate the prosecution case. In the present case, we find PW. 5 has sent all the relevant material to his superior officer immediately. Thus we do not find any violation of S.57 of the Act.”_ 11. In view of the above-cited decisions, it will have to be concluded that non-compliance of Section 57 by itself, is not fatal to the prosecution and also that the provision being directory, the defence will have to prove that the non-compliance of Section 57 has resulted in prejudice to the appellant. In the instant case, there is total non-compliance of Section 57. Ext.P5 is the pre-search information sent by the detecting officer to his immediate superior. Section 57 _Crl.Appeal No. 243 of 2007_ 9 contemplates a post-search and post-arrest report. There is no evidence of such compliance. Substantial compliance would have been sufficient. As seen in the above-cited decisions, the prosecution could have proved that the documents pertaining to the arrest and seizure were submitted to the superior officer by the detecting officer. In view of total non-compliance, the benefit has to go to the accused. 12. Regarding the second point raised by the learned Counsel for the appellant that there is no specimen of the seal collected by the detecting officer and forwarded to the Court for verification. To ensure that the material object, which was produced before the Court is the one which was seized from his possession and sent to the FSL for examination. None of the documents produced indicates the collection of specimen impression of the seal that was affixed on the sample and the contraband. The seizure mahazer prepared as per Ext.P1 does not show the impression of the seal. There is no forwarding note with the impression of the specimen seal sent along with the contraband and the _Crl.Appeal No. 243 of 2007_ 10 samples to the Court. The officer of the Court has not been examined to prove that the sample and contraband, which were received by the Court, were affixed with the specimen seal and compared. 13. Under the circumstances, I find that the prosecution has not proved beyond reasonable doubt that the samples collected and contraband seized from the accused were produced before the Court and sent for examination by the FSL. The conviction therefore cannot be sustained and the impugned judgment is set aside and the accused is acquitted. In the result, the appeal is allowed and the conviction and sentence of the appellant are set aside and he is set at liberty in case he is not required in connection with any other case. The bail bonds, if any, executed by him shall stand cancelled. ## **Sd/-** ## **ASHOK MENON** _dkr_ **JUDGE**