Rajeev v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE SUNIL THOMAS TUESDAY, THE 2ND DAY OF FEBRUARY 2016/13TH MAGHA, 1937 CRL.A.No. 786 of 2014 () ------------------------- AGAINST THE ORDER/JUDGMENT IN SC 349/2013 of ADDL. D.C. & SESSIONS COURT - VII, ERNAKULAM DATED 30-07-2014 CRIME NO. 719/2013 OF ERNAKULAM CENTRAL POLICE STATION , ERNAKULAM APPELLANT(S)/IST ACCUSED: ------------------------- RAJEEV, AGED 28 YEARS, S/O.MANI, VELIYILPARAMBIL HOUSE, KAITHARAM PO, KOTTUVALLY VILLAGE, NORTH PARAVUR. BY ADV. SRI.P.T.JOSE RESPONDENT(S)/COMPLAINANT: -------------------------STATE OF KERALA REP. BY C.I.OF POLICE, CENTRAL POLICE STATION, ERNAKULAM REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA R BY PUBLIC PROSECUTOR M.G.LISHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-112015, ALONG WITH CRA. 613/2015, THE COURT ON 2/2/2016 DELIVERED THE FOLLOWING: ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **Crl.A. Nos.786 of 2014 & 613 of 2015** - - - - - - - - - - - - - - - - - - Dated this the 2[nd] day of February, 2016 ## **JUDGMENT** These appeals are preferred by the first and second accused respectively challenging the conviction and sentence in SC No.349/2013 by the Additional Sessions Judge IV, Ernakulam for offences punishable under Section 22C read with Section 8C of the NDPS Act. 2. The allegation of the prosecution is that on 3-42013, the accused were found in possession of 306 ampules of buprenorphine LP Lupigesic and 57 ampoules of Diazepam injection for the purpose of sale and were seized by the SI of police Central Police station. They were found on a main road in front of the School of Marine Science, Ernakulam. After completion of initial formalities, they were arrested, investigation was completed and final report was laid. Both accused pleaded not guilty and faced trial. 3. Prosecution examined PWs 1 to 13 and marked Crl.A.786/14 & 613/15 2 Exts.P1 to P29. MOs1 to 13 were identified. The learned Session Judge, placing reliance on the above materials, essentially the oral testimony of PWs 3, 4 & 5 and also the contemporaneous documents, found both accused guilty, convicted and sentenced them to undergo RI for ten years and to pay a fine of Rs.One Lakh each, in default, to undergo RI for two years each. Set off, as permissible under Law, was granted. This conviction and sentence is assailed in these appeals. 4. Heard both the counsel for the appellants and the learned Public Prosecutor. Examined the records. 5. The prosecution heavily relied on the oral testimony of PW3 to PW5. PW4 was the Sub Inspector of the Central Police station, who was the detecting officer. He deposed that he got a secret information on 3-4-2013 at about 11.15 that two persons, whose descriptions were provided, were conducting sale of drugs in front of the School of Marine Science. It was entered in the GD and informed to the CI of Police. The party proceeded to the scene of occurrence. First accused was found sitting on a motor cycle and the second accused was sitting on the road side. They Crl.A.786/14 & 613/15 3 were intercepted and on questioning, they were found perplexed . Thereafter, the intention of the detecting officer to have a body search was conveyed to them, whereupon the first accused expressed his desire to have the presence of a gazetted officer. PW3, the Circle Inspector of Excise, was intimated, who came to the scene and supervised the detection. It is stated that in the presence of PW5, an independent witness and yet another independent witness, search was conducted. From the pocket of the first accused, Rs.370 and a mobile phone were recovered. From the handle of the motor cycle on which he was allegedly sitting a packet was seized which contained 57 ampoules of diazepam and 76 ampoules of promathezine and 29 ampoules without any labels were recovered, wrapped in three separate packets. Body search of the second accused disclosed Rs.200/-, a sony ericsson mobile and from the kit carried by him, 277 ampoules of buprenorphine were recovered. 6. This version of PW4 was sought to be corroborated by PW3 and PW5. PW7 was the CPO attached to the Central Police Station, who claimed to have taken photographs of the Crl.A.786/14 & 613/15 4 interception. PW10 was the CPO attached to the same police station, who claimed to have recorded proceedings on video. Ext.P21 was the CD in relation to that. Since photographs and CD does not appear to have been properly and reliably proved, it is not safe to rely on the testimony of both witnesses and the photographs and the video recorded by them. 7. Contemporaneous documents, that were pressed into service were Ext.P2 intimation given by PW4 to PW3, Ext.P3 seizure mahazar, Exts.P5 & P6 series the arrest and inspection memos respectively. Exts.P7 to P15 labels kept on the contraband items and the samples and Ext.P16 paper slip bearing the specimen signature of the accused, officers and the witnesses. Ext.P3 contains meticulous details of the search, seizure, separation of samples and labeling. Paper slip Exts.P7 to P16 contain the signature of the accused, witnesses and the detecting officer. Exts.P5 & P6 prove the arrest of the accused at the spot. 8. By Ext.P19 forwarding note, the samples were forwarded for chemical analysis. Report was received which was Crl.A.786/14 & 613/15 5 marked as Ext.P21. It shows that in all the five samples, diasepam was detected. In S1(a) to S1(e) content was 4.63 mg per 1 ml. Buprenorphine was detected in all the ten samples. The material on record indicates that Ext.P17 FIR and Ext.P3 mahazar along with Ext.P18 and 18A reached the court on 4/4/2013. There is an endorsement on the document that they were received without any interpolation. Even the accused has no case that there was any delay in the receipt of the documents and the contraband by the court. These convincingly show that the samples which were produced in the court were forwarded without much delay and tampering and reached the chemical analysis lab without any interpolation. 9. Evidence set up by the accused, as revealed from the reply given in answer to Section 313 Cr.P.C. questioning is that the first accused was arrested from his house on 28/3/2013 at 9.30 p.m. According to him, 2[nd] accused was not known to him. The second accused took up a contention that he belongs to Sulthanbathery and had come to Kodungalur in search of job. He was arrested from there and was not involved in transaction of Crl.A.786/14 & 613/15 6 drugs. According to him, he saw the first accused for the first time in police station. Evidently, there is no evidence to prove the above defence. Hence, the available materials will have to be searched to find out whether prosecution has succeeded in proving the prosecution case. Evidently, prior information was received. Even the available materials indicate that meticulous details of persons allegedly involved in the transaction were disclosed to the detecting officer. 10. PW4 in his evidence had deposed that he got secret information over the telephone. This was immediately entered in a general diary and intimation was sent to Circle Inspector. It was marked as Ext.P4. It shows that it was received by the Circle Inspector at 1.40 p.m. on the same day. PW6, in his evidence had deposed that he had received it and acknowledged it. Ext.P3 is a report sent by PW4 in compliance with Section 42(2) of the NDPS Act. The above evidence clearly shows that there was due compliance of Section 42 of the NDPS Act. 11. It was contended by the learned counsel for the appellants, relying on the authorities that there was no Crl.A.786/14 & 613/15 7 compliance under Section 50 of the NDPS Act. Relying on the decisions reported in **Karnail Singh v. State of Haryana [(2009) 8 SCC 539], Gurjant Singh v. State of Punjab [2013 (4) KLT SN 108(C.No.110) SC]** and **Kishan Chand v. State of Haryana [2013 (1) KLT 634 (SC)]** , it was contended that there was no compliance of Section 50 of the Act. Relying on the decision reported in **State of Rajasthan v. Parmanand** **[ 2014 (1) KLT 1030 (SC)]** , it was contended that both the accused were not separately informed about their right under Section 50 of the NDPS Act. On this premise, both the accused contended that they are entitled for acquittal. 12. PW4 in his evidence had deposed that after the accused were intercepted, he had informed them about their right. First accused wanted the presence of a gazetted officer. It was admitted by him that there was no written intimation. He further deposed that he had intimated PW3 regarding his requirement. Ext.P2 is the letter issued by PW4 to PW3 requesting his presence at the spot. It was sent through a police constable. PW3 in his evidence disclosed that on getting the Crl.A.786/14 & 613/15 8 reply, he acknowledged it on the same letter and was returned to the constable who brought it. Thereafter, he proceeded to the spot in the same police jeep. Ext.P2 was identified by PW3 and PW4. PW4 in his evidence disclosed that he had given intimation regarding the body search. This is seen recorded in seizure mahazar in detail also. It is admitted that no separate notice was issued to both the accused. It is true that in Paramanand's case, the Hon'ble Supreme Court had held that each of the accused should be specifically informed about his right under Section 50 of the NDPS Act. In this case, it appears that the option under Section 50 was put to both accused of which first accused availed opportunity, but the second accused did not. In Paramanand's case, in fact, option was only put to one of the accused and he refused to accept the option on behalf of the other accused. It was in this context, that the Hon'ble Supreme Court held that there should be an individual intimiation to each of the accused. Evidence of PW3, PW4 and the mahazar indicate that it was duly complied with. Hence, I am inclined to hold that there was strict compliance of Section 50 of the NDPS Act. Crl.A.786/14 & 613/15 9 13. PW4 had stated that after the interception, search and completion of formalities, Ext.P20 report along with copy of the FIR was forwarded to the superior officer. Ext.P20 is signed by the superior officer. PW6 in his evidence had deposed that he had received it on the same day at 5' o clock. Hence, it is only to be held that there was due compliance of Section 57 of the NDPS Act. 14. Prosecution relied on the oral testimony of the crucial witnesses to contend that the accused were in conscious possession of the entire contraband items. According to the learned counsel for the accused, as far as the first accused is concerned, recovery was effected from a bag hung from a bike and not from his body. On the other hand, as far as the second accused is concerned, it was recovered from the carry bag held by him. Relying on this, it was contended that there was no material to suggest that there was any connection between the first accused and the bag. However, evidence by PW3 and also independent witness indicate that the first accused was found standing touching the motor cycle. They were found at the Crl.A.786/14 & 613/15 10 scene of occurrence itself. 15. Evidence was tendered by the prosecution through the oral testimony of PW8, PW9, PW11,PW12 & PW13, to prove that bike bearing number KL 37 A 1525 was in the actual physical possession of the first accused. PW8 is the RC owner who deposed that he had sold the vehicle by Ext.P25 document to PW9, one Moideen of Easy Deal at Palarivattom. PW9 the owner of the Easy Deal deposed in accordance with the above version that it was purchased by him from PW8 by Ext.P25 document. Thereafter, the first accused purchased it by Ext.P26 document. Ext.P27 is the certificate issued by PW9 to the investigating officer stating that the above vehicle was sold by him. PW11 was the joint RTO who produced the RC particulars with respect to the above vehicle, which was marked as Ext.P28. Exts.P12 and P13 are persons who are associated with the firm Easy Deal. They also gave evidence stating that the vehicle was sold to the first accused. Hence, available material on record clearly shows that though the RC ownership was not changed, the vehicle stood in the name of the first accused and he was in actual physical Crl.A.786/14 & 613/15 11 possession of the vehicle as on that date. Hence, it cannot be said that the recovery was not from the conscious possession of the first accused. 16. It was contended by the learned counsel for the accused that the source of the huge contraband items were not found out. It is true that the investigating agency did not succeed in proving the source of the contraband articles. That by itself will not make the entire prosecution case doubtful. 17. It was contended by the learned counsel for the accused that there were several contradictions in the version of the various witnesses. It was contended that PW3 in his evidence had stated that the bike was put on the side stand and both the accused were standing near it. He asserted that nobody was sitting on the bike. PW5 in his evidence had deposed that when he reached the spot, first accused was leaning against the bike and second accused touching the back side grip of the vehicle. He deposed that the Excise Circle Inspector came after some time. On the other hand, version of PW4 was that the first accused was sitting on the bike and the second accused was Crl.A.786/14 & 613/15 12 found sitting on the footpath. According to him, first accused sat on the bike till PW3 reached the spot. The version of PW3 that even after interception first accused continued to sit on the bike till PW3 reached the spot appears to be slightly embellished version which is not supported by the version of any other witnesses. 18. Another contradiction pointed out was that PW3 in his evidence stated that before search, PW4 himself had searched his own body. Thereafter, he searched the body of the first accused. On the other hand, PW4 stated that only himself and PW3 searched their own body before the body of the accused were searched. Another contradiction was that according to PW3, the Sub Inspector opened the kit, whereas according to PW5, PW3 opened the kit with the help of the police. These contradictions do not appear to be so material as to doubt the prosecution case in the light of the strong evidence marshaled by the prosecution. 19. It was contended by the learned counsel for the accused that even assuming that contraband articles were recovered from Crl.A.786/14 & 613/15 13 the possession of the accused, there was absolutely nothing to show that they were in joint possession of the entire contraband. It is true that prosecution is not seeking aid of Section 29 of the NDPS Act. However, the stand of the prosecution seems to be that both accused were in joint possession of contraband items. PW3 admitted that he did not see the accused selling the contraband or that anybody was in the process of purchasing the sample. However, his version indicates that the secret information received by him was to the effect that two persons were engaged in the process of selling drugs. Meticulous details of the dress worn by each of the person were conveyed. When PW4 reached the spot, both were found together. It is on record that both got perplexed. Both had some contraband items from respective possession. First accused is person from Paravoor and the second accused from Wayanad. They could not give a reasonable explanation as to why these two persons from distant places were present at the place of the incident. These lead to a clear conclusion that both were in joint possession of the contraband items. Crl.A.786/14 & 613/15 14 20. An evaluation of the entire materials show that prosecution had succeeded in proving the conscious possession of the contraband items recovered from them. Chemical analysis report also shows that samples were drugs which were prohibited under the NDPS Act. Sufficient evidence is there to show that they were in conscious possession of huge quantity of drugs. The sentence imposed is commensurate with the guilt proved. Having regard to these facts and also the fact that quantity recovered from them is very huge, I do not find any reason to interfere with both the conviction and sentence. Both appeals fail and are dismissed. **Sd/SUNIL THOMAS Judge** dpk /true copy/ PS to Judge.