Rajesh s/o SASI v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 16[TH] DAY OF AUGUST 2022 / 25TH SRAVANA, 1944 CRL.A NO. 2525 OF 2007 ``` ``` AGAINST THE JUDGMENT IN SC 29/2005 OF IV ADDITIONAL DISTRICT COURT, ERNAKULAM ``` ## **`APPELLANT/ACCUSED:`** ``` RAJESH S/O.SASI, THOMMANCHERY HOUSE, N.R.CITY BHAGOM, RAJAKKADU VILLAGE, PUNNACITY KARA, IDUKKI DISTRICT. BY ADVS. SRI.P.VIJAYA BHANU SRI.M.REVIKRISHNAN ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV.SRI DENNY DEVASSY, PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 16.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 2525 OF 2007 ``` ``` 2 ``` ## **“C.R.”** ## **JUDGMENT** The sole accused in S.C.No.29/2005 on the file of the IV Additional Sessions Judge, Ernakulam, who is aggrieved by conviction and sentence imposed against him in the above case, as per judgment dated 12.12.2007, has preferred this appeal under Section 374(2) of Cr.P.C. The offence alleged is one punishable under Section 20(b)(ii)B of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act'). 2. The appellant herein is the accused before the trial court and the respondent herein is the State of Kerala represented by the learned Public Prosecutor. 3. Heard the learned counsel for the appellant as well as the learned Public Prosecutor. ``` CRL.A NO. 2525 OF 2007 ``` ``` 3 ``` ## 4. Shorn off unnecessary details, the prosecution case is as follows: It is alleged by the prosecution that the accused was found in possession of 5kg of Ganja wrapped up and concealed in a big shopper held by him, without any authorisation, against the sanctions in the NDPS Act. On search, the said contraband was recovered; he was arrested and crime was registered alleging commission of offence under Section 20(b)(ii)B of the NDPS Act. 5. The learned Additional Sessions Judge tried the matter, after complying pre-trial formalities and during trial, PWs 1 to 6 were examined and Exts.P1 to P11 were marked. Thereafter, the accused was questioned under Section 313(1)(b) of Cr.P.C. and his explanations to the incriminating circumstances found in evidence got recorded. Ext.D1, index in crime No.984/2004 prepared by JFCM-II, Ernakulam was marked, availing the opportunity given by the trial court to adduce defence evidence. ``` CRL.A NO. 2525 OF 2007 ``` ``` 4 ``` 6. The trial court, on appreciation of evidence, convicted the appellant under Section 20(b)(ii)B of the NDPS Act and sentenced to undergo rigorous imprisonment for a period of three years and also to pay fine of Rs.50,000/-. In default of payment of fine, rigorous imprisonment for a period of one year also was imposed. Set off also was allowed. 7. While assailing the judgment of the Additional Sessions Court, the learned counsel for the appellant given much emphasis to Ext.P4(a), the original letter given by the Detecting Officer, addressing the Tahsildar to secure his presence. Ext.P4 is the copy of the same. According to the learned counsel for the appellant, since Exts.P4 and P4(a) were not produced along with the final report and the same got marked during examination of PW6, forming part of the case diary, there is non-compliance of Section 207 of Cr.P.C. She ``` CRL.A NO. 2525 OF 2007 ``` ``` 5 ``` also submitted that thereby mandatory compliance of Section 50 of the NDPS Act is vitiated and accordingly, the appellant is entitled to get acquittal. She also argued that the independent witnesses, who signed Ext.P1 seizure mahazar, also deposed during crossexamination that he did not see the vehicle of Tahsildar at the place of occurrence and therefore, the presence of Tahsildar at the place of occurrence is not established fully, and the same also creates doubt in the prosecution case in the matter of compliance of the mandate of Section 50 of the NDPS Act. Apart from that nothing argued to find lacuna in the prosecution case and to substantiate acquittal. 8. However, the learned Public Prosecutor vehemently supported the conviction and sentence, highlighting the evidence of PWs.1 to PW6 and Exts.P1 to P11. ``` CRL.A NO. 2525 OF 2007 ``` ``` 6 ``` 9. In order to address non-compliance of Section 50 of the NDPS Act for want of production of Exts.P4 and P4(a) before the committal court along with the final report, it is necessary to venture as to whether in which cases compliance of Section 50 of the NDPS Act is mandatory. In this regard, I am inclined to extract Section 50 of the NDPS Act and the same is as under: **“50. Conditions under which search of persons shall be conducted.-** When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the Person until he can bring him before the Gazetted Officer or the Magistrate referred to in subsection (1). ``` CRL.A NO. 2525 OF 2007 ``` ``` 7 ``` (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorized under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973. (6) After a search is conducted under subsection (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior”. ``` CRL.A NO. 2525 OF 2007 ``` ``` 8 ``` 10. Going by the statutory wordings, no particular format is provided in the Statute regarding the way in which information has to be given to the Gazetted Officer or the Magistrate while searching a person. Most importantly, it has been provided under Section 50 of the NDPS Act that compliance of Section 50 is mandatory only in cases, where search of a person is involved. In the decision reported in **State of Punjab v. Baldev Singh [(1999) 6 SCC, 172],** the constitutional Bench of the Apex court considered the impact of Section 50 with reference to its mandatory or directory nature. It has been held that on its plain reading, Section 50 would come into play only in the case of a search as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest ``` CRL.A NO. 2525 OF 2007 ``` ``` 9 ``` of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirement of Section 50 of the Act are not attracted. It has been held in the decision further that the question whether the provisions of Section 50 are mandatory or directory and, if mandatory, to what extent and the consequence of non-compliance with it does not strictly speaking arise in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched. Therefore, without expressing any opinion as to whether the provisions of Section 50 are mandatory or not, but bearing in mind the purpose for which the safeguard has been made, it is held that the provisions of Section 50 of the Act implicitly make it **imperative** and **obligatory** and cast a duty on the ``` CRL.A NO. 2525 OF 2007 ``` ``` 10 ``` investigating officer (empowered officer) to ensure that the search of the person (suspect) concerned is conducted in the manner prescribed by Section 50, by intimating the person concerned about the existence of his right. It has been held further that the omission may not vitiate the trial as such, but omission to be informed of the existence of his right, it would render his conviction as sentence unsustainable. Subsequently, the Apex Court in **State of Haryana vs. Ranbir alias Rana [AIR 2006 SC 1796],** also held as under: “S.50 would be applicable only in a case of personal search of the accused and not when it is made in respect of some baggage like a bag, article, vehicle or container, etc., which the accused at the relevant time was carrying” 11. Thus the law is emphatically clear that Section 50 would come into play only in case of ``` CRL.A NO. 2525 OF 2007 ``` ``` 11 ``` personal search of the accused and the same has no application in respect of some baggage like a bag, article, vehicle or container. 12. To be on facts of this particular case, the allegation of the prosecution case is that the accused was possessing the contraband wrapped up and concealed in a big shopper held by him. However, as an abundant caution, the Detecting Officer secured the presence of the Tahsildar/a Gazetted Officer during search and PW5, the Tahsildar categorically given evidence that he was present at the time of recovery and he strongly supported the evidence of PWs. 1 and 2 in the matter of search and recovery as poised by the prosecution. Here, the evidence of PW1 would go to show that when the accused was searched, 5kg of Ganja was seized from a big shopper possessed by him, which shows that there was no body search or ``` CRL.A NO. 2525 OF 2007 ``` ``` 12 ``` search of a person, was in fact, carried out by the prosecution, so as to make compliance of Section 50 of the NDPS Act mandatory. 13. In this matter, the trial court evaluated the evidence of PW1, who had tendered evidence in support of the prosecution case led to search, recovery as per Ext.P1 mahazar, registration of Ext.P2 FIR and recovery of the contraband marked as MOs.1 to 3. Unlike in other cases, PW2, an independent witness, also supported the recovery though he had given evidence to the effect that he did not see the vehicle of Tahsildar at the place of occurrence. Apart from that, PW3, the Police Constable, who accompanied PW1 in the search, also corroborated the evidence of PWs.1 and 2. It is relevant to note that, as I have already observed, that PW5, the local Tahsildar, also given evidence in support of the recovery and receipt of ``` CRL.A NO. 2525 OF 2007 ``` ``` 13 ``` Exts.P4 and P4(a) letter. Nothing extracted during crossexamination of PW5 to disbelieve his presence at the time of recovery. Ext.P10 is the scene plan prepared by PW4, the Village Officer of Ernakulam. 14. It is true that Section 207 Cr.P.C. mandates that in any case, where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of five items of documents dealt under the Section. That does not mean that the prosecution is estoped from producing additional documents with permission of the court after serving copy to the other side and on hearing both sides. Eventhough Exts.P4 and P4(a) were not produced along with final report, the evidence of PW5 in categorical terms is to the effect that he was present at the time of recovery, would go to show that he was informed by the Detecting Officer before ``` CRL.A NO. 2525 OF 2007 ``` ``` 14 ``` search, and accordingly he was present at the place of search. As I have already pointed out, in this case search of the person not involved and for the reasons discussed herein above, the challenge at the instance of the learned counsel for the accused against conviction and sentence doubting the prosecution case cannot be sustained. 15. On re-appreciation of the evidence, it has to be held that the prosecution succeeded in proving that the accused herein possessed 5kg of Ganja categorised as ‘intermediate quantity’ as provided under Section 20(b)(ii)B of the NDPS Act and therefore, the conviction imposed against the appellant under the said Section requires no interference at all. 16. The learned counsel for the appellant pressed for reducing the sentence. According to the learned ``` CRL.A NO. 2525 OF 2007 ``` ``` 15 ``` counsel for the appellant, the appellant is the sole bread winner of the family and therefore, the sentence requires modification. 17. Dispelling this argument, it is submitted by the learned Public Prosecutor that question of leniency in sentence cannot be considered in this case, where the trial court imposed only three years of imprisonment though the offence is one punishable upto ten years. He also submitted that Rs.1,00,000/- is the maximum fine and the trial court imposed only 50%. 18. It appears that no criminal antecedents were reported in so far as the accused is concerned and therefore, I am inclined to modify the sentence within the statutory limit in consideration of the prayer at the instance of the learned counsel for the accused. ``` CRL.A NO. 2525 OF 2007 ``` ``` 16 ``` In the result, this appeal stands allowed in part. The conviction imposed against the accused under Section 20(b)(ii)B of the NDPS Act stands confirmed. The sentence stands modified and accordingly, it is ordered that the the accused/appellant shall undergo rigorous imprisonment for a period of two years and to pay fine of Rs.30,000/- (Rupees thirty thousand only). In default of payment of fine, he shall undergo rigorous imprisonment for a period of six months. Default imprisonment shall run separately. The order suspending sentence of the accused stands cancelled and his bail bond also stands cancelled. The accused/appellant is directed to surrender before the trial court within fourteen days from today to undergo the modified sentence. On failure to do so, the learned Sessions Judge is directed to execute the sentence without fail. ``` 17 ``` ## **`CRL.A NO. 2525 OF 2007`** Registry is directed to forward a copy of this judgment within 14 days to the trial court for information and compliance. **Sd/-** **A. BADHARUDEEN JUDGE** nkr