Saji T.P. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 25TH DAY OF FEBRUARY 2020 / 6TH PHALGUNA, 1941** ## **Crl.MC.No.1014 OF 2019(F)** **SC 143/2016 OF SPECIAL COURT (NDPS ACT CASES), VATAKARA** ## **PETITIONER/ACCUSED:** **SAJI T.P., AGED 48 YEARS S/O. PAULOUS, THACHAMPURATH (H), YAVANARKULAM, KATTIMOOLA, THAVINJAL, WAYANAD DISTRICT.** **BY ADV. SMT.P.SHEEBA** **RESPONDENT/STATE:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.** ## **SRIC K PRASAD-PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11.02.2020, THE COURT ON 25.02.2020 PASSED THE FOLLOWING:** Crl.M.C.No.1014/2019 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.1014 of 2019 --------------------------------------------Dated this the 25[th] day of February, 2020 ## **O R D E R** The petitioner is the second accused in the case S.C.No.143/2016 on the file of the Special Court (NDPS Act Cases), Vatakara. 2. On 15.10.2016, at about 13.30 hours, the Sub Inspector of Nallalam police station found the first accused Shahir at the place Kaimbalam in Kozhikode District, having in his possession 88 grams of ganja. The Sub Inspector arrested him and seized the ganja and registered a case as Crime No.958/2016 of Nallalam police station under Section 20(b)(ii)A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act'). 3. On the basis of the information obtained from the first accused with regard to the source of ganja, on 17.10.2016, at Crl.M.C.No.1014/2019 3 about 17.30 hours, the Sub Inspector reached the place Poroor in Wayanad District and found the petitioner having in his possession 4.100 kilograms of ganja and arrested him and seized the ganja. 4. The petitioner was then arraigned as the second accused in the case. After completing the investigation, the Inspector of Police, Cheruvannur filed chargesheet against both the accused before the Special Court alleging commission of the offence punishable under Section 20(b)(ii)A of the Act against the first accused and under Section 20(b)(ii)B against the petitioner, the second accused. 5. The Special Court took cognizance of the offences against the petitioners and numbered the case as S.C.No.143/2016. 6. This petition is filed under Section 482 Cr.P.C by the second accused in the case for quashing Annexure-C chargesheet filed by the police and Annexure-D charge framed by the court against him. 7. Heard learned counsel for the petitioner and also the Crl.M.C.No.1014/2019 4 learned Public Prosecutor. 8. Learned counsel for the petitioner contended that, as per the allegations in the chargesheet filed by the police, two separate and distinct offences are committed by the two accused and therefore, they cannot be charged together and tried jointly. Learned counsel would point out that the seizure of the contraband was allegedly made from the two accused at two different places on two different dates as per separate mahazars by the detecting officer. Learned counsel further contended that conducting trial of the case against the petitioner along with the first accused would cause serious prejudice to the petitioner. 9. _Per contra_ , learned Public Prosecutor has contended that, it was on the basis of the information obtained from the first accused that the ganja was seized from the second accused and that the offences were committed by the two accused in the course of the same transaction and therefore, common charge filed against them is sustainable in law. 10. Section 218(1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') states that, for every Crl.M.C.No.1014/2019 5 distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately. Sub-section (2) of Section 218 states that, nothing in sub-section (1) shall affect the operation of the provisions of Sections 219,220,221 and 223 of the Code. 11. Section 218 of the Code embodies the general rule as to the trial of accused persons. It provides for separate trial of each accused person for every distinct offence. It is based on the fundamental principle of criminal law that the accused person must have notice of the charge which he has to meet. 12. Two offences would be distinct if they be not in any way interrelated. If there be some interrelation there would be no distinctness and it would depend on the circumstances of the case in which the offences were committed, whether there be separate charges for those offences or not (See **Banwari Lal v. Union of India : AIR 1963 SC 1620** ). 13. Section 223 of the Code states what persons may be charged jointly. Clause (a) of Section 223 provides that, persons accused of the same offence committed in the course of the Crl.M.C.No.1014/2019 6 same transaction may be charged and tried together. Clause (d) of Section 223 provides that, persons accused of different offences committed in the course of the same transaction may be charged and tried together. 14. The offences punishable under Sections 20(b)(iii)A and 20(b)(ii)B of the Act cannot be considered as distinct offences. The offence actually committed by the two accused in the case is under Section 20(b)(ii) of the Act which prescribes the punishment for production, manufacture, possession, sale, purchase, transport etc and use of cannabis in contravention of the provisions of the Act or the rules or orders made thereunder. Different punishments are provided for the above two offences merely based on the quantity of cannabis involved in the case. 15. Even if it is assumed or accepted that the offences punishable under Sections 20(b)(ii)A and 20(b)(ii)B of the Act are distinct and separate, in the instant case, clause (d) of Section 223 of the Code would enable to have a joint trial of the two accused because the above offences are allegedly committed by them in the course of the same transaction. Crl.M.C.No.1014/2019 7 16. In order to apply Section 223 (d) of the Code, three conditions are necessary: (1) There shall be more than one accused person (2) Such persons must be accused of different offences (3) The offences must be committed in the course of the same transaction. 17. The question in the case is whether the offences allegedly committed by the two accused in the case were in the course of the same transaction. ## 18. In **State of A.P v. Cheemalapati Ganeswara Rao :** **AIR 1963 SC 1850** , the Supreme Court has held as follows: _“What is meant by "same transaction" is not defined anywhere in the Code. Indeed, it would always be difficult to define precisely what the expression means. Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which the Legislature has deliberately left undefined. We have not come across a single decision of any Court which has embarked upon the difficult task of defining the expression. But it is generally thought that where there is proximity_ Crl.M.C.No.1014/2019 8 _of time or place or unity of purpose and design or continuity of action in respect of a series of acts, it may be possible to infer that they form part of the same transaction. It is, however, not necessary that every one of these elements should coexist for a transaction to be regarded as the same. But if several acts committed by a person show a unity of purpose or design that would be a strong circumstance to indicate that those acts form part of the same transaction. The connection between a series of acts seems to us to be an essential ingredient for those acts to constitute the same transaction”._ (emphasis supplied). ## 19. In **Mohan Baitha v. State of Bihar: AIR 2001 SC** ## **1490** , the Supreme Court has held as follows: _“The expression "same transaction" from its very nature is incapable of an exact definition. It is not intended to be interpreted in any artificial or technical sense. Common sense and the ordinary use of language must decide whether on the facts of a particular case, it can be held to be in one transaction. It is not possible to enunciate any comprehensive formula of universal application for the purpose of determining whether two or more acts constitute the same transaction. But the_ Crl.M.C.No.1014/2019 9 _circumstances of a given case indicating proximity of time, unity or proximity of place, continuity of action and community of purpose or design are the factors for deciding whether certain acts form parts of the same transaction or not. Therefore a series of acts whether are so connected together as to form the same transaction is purely a question of fact to be decided on the aforesaid criteria”._ 20. For several offences to be part of the same transaction, the test which has to be applied is whether they are so related to one another in point of purpose or of cause and effect, or as principal and subsidiary, so as to result in one continuous action. Thus, where there is commonality of purpose or design, where there is continuity of action, then all those persons involved can be accused of the same or different offences committed in the course of the same transaction (See **Balbir v. State of Haryana** ## **: AIR 2000 SC 11** ). 21. In the instant case, ganja was allegedly seized from the petitioner on the basis of the information given to the police by the first accused. The question, whether the ganja found in Crl.M.C.No.1014/2019 10 the possession of the first accused was sold by the petitioner, is a matter of evidence and proof. It is also to be noted that, not only mere possession but also sale, purchase etc of cannabis, are punishable under Section 20(b)(ii) of the Act. Where several persons are alleged to have committed several separate offences, which, however, are not wholly unconnected, then there may be a joint trial unless such joint trial is likely to cause either embarrassment or difficulty to the accused in defending themselves (See **Dineshkumar v. State : AIR 2015 SC 1816** ). In the instant case, learned counsel for the petitioner has not pointed out what prejudice would be caused to the petitioner by conducting trial of the case jointly with the first accused. 22. Moreover, it is pertinent here to note that the trial court has framed charge against the petitioner separately and not along with the first accused. Annexure-D is the copy of the charge framed by the court. It shows that charge has been framed by the court only against the petitioner for an offence punishable under Section 20(b)(ii)B of the Act. No charge is framed against the first accused as per Annexure-D. Crl.M.C.No.1014/2019 11 23. The facts in the instant case are more or less similar to the facts in the case **Biju v. State of Kerala : 2012 KHC 739** . It was also a case in which, on the basis of the information obtained from the first accused, contraband article was seized from the second accused on a different date. This Court held that it cannot be found that there was no rational nexus between the two incidents. 24. Learned counsel for the petitioner relied upon the decision of this Court in **State of Kerala v. Wolf Hang Kannad Finert : 1995 (1) KLT 72** in support of the contention that clause (d) of Section 223 of the Code will not apply to the facts of the present case. This decision has no application to the facts of the present case. 25. Learned counsel for the petitioner has contended that there are irregularities and illegalities in the detection of the offence and the investigation of the case. They are matters of proof and evidence which cannot be decided in a petition filed under Section 482 Cr.P.C. Crl.M.C.No.1014/2019 12 26. In the aforesaid circumstances, I find no sufficient ground to quash Annexure-C chargesheet filed against the petitioner by the police or Annexure-D charge framed against him by the trial court. The petition is liable to be dismissed. Consequently, the petition is dismissed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** **jsr** Crl.M.C.No.1014/2019 13 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A** **CERTIFIED COPY OF THE F.I.R IN NALLALAM POLICE STATION CRIME NO. 958/2016.** **ANNEXURE B** **TRUE COPY OF THE SEIZURE MAHAZAR IN S.C NO. 143/2016 ON THE FILE OF SPECIAL COURT (NDPS ACT CASES),VATAKARA.** **ANNEXURE C CERTIFIED COPY OF THE FINAL REPORT AND CHARGE IN S.C NO. 143/2016 ON THE FILE OF THE SPECIAL COURT (NDPS ACT CASES), VATAKARA.** ## **ANNEXURE D** **CERTIFIED COPY OF THE CHARGE FRAMED IN S.C NO. 143/2016 ON THE FILE OF THE SPECIAL COURT (NDPS ACT CASES), VATAKARA.** **RESPONDENT'S EXHIBITS : NIL** **PS TO JUDGE**