Roshan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **FRIDAY, THE 21ST DAY OF JUNE 2019 / 31ST JYAISHTA, 1941** ## **Crl.MC.No.3823 of 2019** **IN CC 567/2018 of JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOLLAM** **CRIME NO.603/2012 OF Kollam East Police Station, Kollam** ## **PETITIONER/ACCUSED:** **ROSHAN AGED 38 YEARS S/O.RAJENDRAN,ROHINI HOUSE,PRIYADARSINI NAGAR,KANIMEL CHERRY,MANGATTU.P.O, KOLLAM-691004.** **BY ADVS. SRI.SHABU SREEDHARAN SHRI. ANOOP P.R. SRI.M.YOHANNAN SMT.RESHMA ABDUL RASHEED** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM-682031.** **PP C.K. PRASAD** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.3823/2019 2** ## **C.R.** ## **ORDER** In the petition on hand the chargesheet and all further proceedings initiated on the basis of C.C No.567/2018 registered and pending on the files of Judicial First Class Magistrate Court-II, Kollam is sought to be quashed. Petitioner is the sole accused in C.C No.567/2018. Copy of chargesheet is appended to the petition on hand as Annexure-2 and the offences alleged against the petitioner therein are those punishable under Section 20(b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act'). 2. The case of the prosecution was that, at 18.30 hrs on 4.4.2012 during the course of vehicle inspction at a road situated in front of Udaya Club, Asramcheri, Kollam East Village, 12.03 gms of dried Ganja was recovered from the pocket of the shirt worn by the accused who was driving an Innova Car bearing registration No.KL 37-1748, by the S.I of Police, Kollam East Police Station. The contraband was recovered after ascertaining from the person that he is not having any authority to possess the same. It is the case of the prosecution that prior to the conduct of the search, the accused has stated to the Police party that he doesn't require his body search **Crl.MC.No.3823/2019 3** to be held in the presence of a Gazetted Officer or Magistrate. After the seizure, the contraband alongwith the accused were taken to the Kollam East Police Station and Crime No.603/2012 was registered. The contraband as well as the accused were produced before the Judicial First Class Magistrate Court-II, Kollam. After holding the Investigation and on concluding the same Annexure-2 final report was laid chargesheeting the accused for the offence aforesaid. The final report was taken on file by the court aforesaid and C.C No.567/2018 was registered. 3. Sri.Shabu Sreedharan, the learned counsel for the petitioner has contended that Section 50 of NDPS Act was not complied with by the S.I of Police, Kollam, who has recovered the contraband, allegedly kept in the pocket of the shirt worn by the accused prior to holding the body search of the person. According to him, the seizure of contraband, cannot be taken as a legal one due to violation of a mandatory requirement contemplated by the NDPS Act and consequently, there is every likelihood for the trial proposed to be held against the petitioner to end in acquittal. 4. The learned counsel has also urged that the detection of the offence, seizure of contraband and the investigation in the case on hand were conducted by the S.I of Police, East Police Station and **Crl.MC.No.3823/2019 4** therefore, the investigation held cannot be treated as a fair one. Reliance is placed on _**Mohan Lal Vs. The State of Punjab [2018**_ _**(4) KHC 387 (SC)]'**_ in support of the argument advanced. The third argument advanced was that recovery of ganja was based on the revelation about possession of ganja by the petitioner himself, and therefore is hit by Article 20 of the Constitution of India. 5. The learned Public Prosecutor did not advance any argument. 6. In that context, this Court ventured to see the merits in the arguments advanced by the learned counsel for petitioner as aforestated. Sub Section (1) of Section 50 being relevant in the context is reproduced hereunder: _“When any officer duly authorized 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.”_ 7. Copies of relevant materials pertaining to the case, are made available to this Court by the petitioner himself. The first information statement, seizure mahazar and final report have been perused to see whether the argument that Section 50 of the NDPS Act was not complied with is a meritorious one. The Seizure Mahazar is a contemporaneous document to evidence the manner in **Crl.MC.No.3823/2019 5** ## which seizure was held. The relevant part is extracted hereunder: _“........._ ഞഞൻകകഞല **ല** ലഈസല‌പപഞലലസലപസഷൻഅഡഡഷണൽ സബലഇൻസല‌കപകർ _R._ രഞജലവലഎനയഞൾആകണനലനഡങളകട കകവശല കഞണകപട കഞഞവല പദഹപരഡപശഞധന നടതഡ കകണടപകണതഞയഡടകണനലആയതഡനഏകതങഡലലഗസറഡല ഉപദലയഞഗസകന സഞനഡധലയല ആവശലയല ഉപണഞകയനല അയഞപളഞടല പചഞദഡചതഡൽ മറഞകരയല ആവശലയമഡല **ല** ഞകയനല ഞഞൻതകനപരഡപശഞധനനടതനതഡൽവഡപരഞധമഡല **ല** ഞകയനല പറയകയഞൽ സലത കടഡയ കഞഴകഞപരഞടല മഹഞസറഡൽ പദഹപരഡപശഞധനയഡൽ സഞകഡകളഞയഡ ഉണഞയഡരഡകണകമനല പറഞഏർപഞടഞകഡയഡടളതലഎകനയലകകടഉണഞയഡരന പപഞലലസല ഉപദലയഞഗസരകടയല കകവശല മയകമരന ഇനതഡൽ കപട യഞകതഞനല ഇല **ല** ഞകയനല പലരതഡകയയല സഞകഡകകളയലസലവയലകഞണഡചപബഞധലയകപടതഡയപശഷല _19.00 hrs_ മതഡയഞയ കവളഡചതഡൽ ടഡയഞളകട കകവശല കഞണകപടകപഞതഡഉടപഡകനപപഞകറഡൽനഡനലടഡയഞകനകകഞണല എടപഡച തറന പനഞകഡയതഡൽ ഉണങഡയ കഞഞവല ഇരഡകനതഞയഡകഞണകപടഡടളതലപ **ല** ഞസഡകലപകഞടഡങലഉള ബലരരൺപപപറഡനലഉളഡലഞയഡഒരവലകഡലഡപപപറഡൽആണല കഞഞവല കപഞതഡഞ കവചഡരഡകനതല എനല _.......”_ കഞണകപടഡടളതല 8. It is pertinent to note from the extract above that the petitioner was not made to convince about his right to be searched in the presence of a gazetted officer or a Magistrate and was not given an opportunity to exercise his option. The settled position of law emerged from juridical pronouncements was that prior to holding of body search of a person suspected to be possessed of a narcotic or psychotropic substance, he must be informed of his right to have his body search held in the presence of a Gazetted Officer or Magistrate and he must be granted with an opportunity to exercise the option. From the extract above, it is evidenced that the petitioner herein, the sole accused in the crime was not informed of **Crl.MC.No.3823/2019 6** his right as stated above. He was also not made to exercise his choice of his body being searched in the presence of a gazetted officer or Magistrate. Therefore, Section 50 has not been complied with. Compliance of Section 50 of the NDPS Act being a procedural requirement mandated to be complied with for making the search and recovery legal, non compliance, certainly will be a flaw to vitiate the trial proposed to be held, against the petitioner. 9. The Apex Court in **Monhan Lal** 's case _supra,_ held in paragraph 23 as follows: “ xx xx xx “In a case of this nature, when the complainants himself is a Police Official, the investigation should have been conducted by his top ranking officer and the final report also ought to have been filed by the higher official. A complainant being a police officer cannot be an Investigating Officer. For, in such case, the accused and the prosecution will be deprived of their valuable rights of contradicting and corroborating, the previous information recorded under S.154 or 155 Cr.PC and previous statement of the witness, being a police officer, complaint recorded, under S.161 Cr.PC enjoined in S.145 and 157 of the Indian Evidence Act and proviso of S.162 CrPC. In the instant case, before me, PW1 is an Assistant Sub Inspector of Police, and I understand from the Public Prosecutor as well as from the Counsel for the petitioner that the particular Police Station has got a Sub Inspector of Police. Therefore, in this case, thus an incurable infirmity and flaw have been committed by the prosecution, **Crl.MC.No.3823/2019 7** quite against the proposition of law. Therefore, on that score itself, the petitioner is entitled to get an order of acquittal. In view of my above conclusion on the footing of position of law, this is a fit case, which has to be allowed by acquitting the petitioner.” 10. In the case on hand the Sub Inspector of Police, Kollam East Police Station was the detector of the offence. He was the first informant and the investigation was also conducted by him. 11. The Apex Court made it clear in Mohan Lal's case (supra) that the concept of fair investigation has to be looked from the point of view of an accused as a guaranteed Constitutional right under Article 21 of the Constitution of India and in that context, it is necessary that the law in that regard be laid down with certainty irrespective of the nature of prosecution. 12. The court held: “ to leave the matter for being determined on the individual facts of a case, may not only lead to a possible abuse of powers, but more importantly will leave the Police, the accused, the lawyer and the Courts in a state of uncertainty and confusion, which has to be avoided.” Accordingly, the Court has overruled the view of the Kerala High Court in Kader v. State of Kerala [2001(2) KLT 407] which has already overruled Noushad v. State of Kerala [2000 (1) KLT 785]. Therefore, the position **Crl.MC.No.3823/2019 8** maintained is the one taken in Mohanlal's case supra. 13. In the circumstances above, evenif the accused is send to face trial, the prosecution is only liable to fail in view of that lapse. For the foregoing reasons, Crl.M.C stands allowed. Annexure-2 and C.C No.567/2018 on the files of Judicial First Class Magistrate Court-II, Kollam and all further proceedings initiated pursuant thereto stand quashed forthwith. **Sd/-** **MARY JOSEPH** **JUDGE** JJ **Crl.MC.No.3823/2019 9** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE 1 THE CERTIFIED COPY OF THE FIR WITH THE CONNECTED RECORDS DATED 4.4.2012 IN CRIME NO.603/2012 OF KOLLAM EAST POLICE STATION. ANNEXURE 2 THE CERTIFIED COPY OF THE CHARGE SHEET WITH THE CONNECTED RECORDS DATED 29.4.2012.** ## **RESPONDENT'S/S EXHIBITS:NIL** //TRUE COPY//