Sanju Muhammed Ali v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 4[TH] DAY OF DECEMBER 2023 / 13TH AGRAHAYANA, 1945** **CRL.MC NO. 9887 OF 2023** **CRIME NO.01/2022 OF Mananthavady Excise Range Office, Wayanad AGAINST THE ORDER/JUDGMENT SC 253/2022 OF ADDITIONAL DISTRICT** **COURT & SESSIONS COURT - II, KALPETTA** ## **PETITIONER(S)/1ST ACCUSED:** SANJU MUHAMMED ALI AGED 40 YEARS S/O MUHAMMED ALI, ARYANKALAYIL HOUSE, NAYATHODU P.O., ANKAMALY, ERNAKULAM, PIN - 683572 BY ADVS. M.J.SANTHOSH RENJITH B.MARAR ANTONY PAUL LAKSHMI.N.KAIMAL ABHIJITH SREEKUMAR ARUN POOMULLI ANAND REMESH ABHIRAM.S. ## **RESPONDENT(S)/COMPLAINANT:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 BY ADVS. ADVOCATE GENERAL OFFICE KERALA DIRECTOR GENERAL OF PROSECUTION(AG-10) P.NARAYANAN, SENIOR G.P. AND ADDL.PUBLIC PROSECUTOR() SRI. P. NARAYANAN, SENIOR GP & ADDL. PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04.12.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.9887 of 2023 2 ## **P.V.KUNHIKRISHNAN, J.** **------------------------------** **Crl.M.C.No. 9887 of 2023 ---------------------------------------------Dated this the 04[th] day of December, 2023** ## **ORDER** This Criminal Miscellaneous Case is filed challenging Annexure A10 order passed by the Special Judge NDPS Act cases/ Additional Sessions Judge – II, Kalpetta, Wayanad. Annexure A10 is an order passed in Crl.M.P.No.3352/2023 in S.C.No.253/2022. The above application is filed by the petitioner under Section 45 of the Evidence Act to refer Exts.P18 & P25 reports and deposition of PW8 to the Regional Forensic Science Laboratory for comparison of signatures of PW8. 2. The above case is charge-sheeted against the petitioner alleging offences punishable under Section 22(c), 25 and 29 of the NDPS Act. The crux of Crl.M.C.No.9887 of 2023 3 the prosecution case is that, on the basis of prior information, on 05.01.2022 at about 3.30 pm, PW1/the detecting officer and party reached the place of occurrence and intercepted a car driven by the 1[st] accused/petitioner. During the search, 475 grams of Methamphetamine was seized from the car. 3. The detecting officer was examined as PW1 and he deposed that, Exts.P18 and P25 reports were forwarded to PW8 who was his immediate superior. PW1 deposed that, both documents contain the signature of PW8. PW8 identified the signature in both documents. During cross examination, PW8 identified his signature in Exts.D2 and D3 and also deposed that, signatures in Exts.P18 and P25 are not similar to the signatures in Exts.D2 and D3. The prayer of the petitioner is that, in order to identify the handwriting and to prove the forgery, questioned signatures of PW8 in Exts.P18 and P25 and the admitted signature Crl.M.C.No.9887 of 2023 4 of PW8 found in his deposition are to be forwarded to the handwriting expert along with specimen standard signatures of PW8. The above application was rejected by the trial court. Aggrieved by the same, this Crl.M.C is filed. 4. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. 5. Counsel for the petitioner reiterated the contentions raised in this case. The counsel also takes me through the deposition of PW8 and submitted that PW1 at one stage admitted that there is a difference in the signature. The counsel also takes me through Section 233 (3) Cr.P.C and submitted that the learned Judge ought to have allowed the petition filed for sending the documents for expert opinion. The counsel also relied on the judgment of this Court in **Radhanandan v. State of Kerala** [1990 KHC 122]. 6. The Public Prosecutor on the other hand Crl.M.C.No.9887 of 2023 5 supported the order. The Public Prosecutor submitted that, when PW8 admits the signature, there is no question of sending the documents for expert opinion. The Public Prosecutor also relied on the judgments of this Court in **Pushpa Jayan and Others v. Nadeera Ahammed** [2017 (1) KHC 212], **Santhosh alias Bhure v. State (G.N.C.T.) of Delhi** [2023 SCC OnLine SC 538] and N **arayanan v. State of Kerala** [2012 (4) KHC 862]. 7. This Court considered the contentions of the petitioner and the Public Prosecutor. This Court also perused the impugned order. The learned Judge mainly relied on the evidence of PW8 who admitted his signatures in Exts.P18 and P25. It is stated by the learned Judge that, since the person who signed Exts.P18 and P25 documents appeared before the court and deposed before the court that the signatures found in Exts.P18 and P25 belongs to him, it is not Crl.M.C.No.9887 of 2023 6 necessary for sending Exts.P18 and P25 documents along with the deposition of PW8 for comparison. The Public Prosecutor also submitted that the signatures in Exts.P18 and P25 is admitted by PW8 and consequently it was proved. Hence expert opinion is not necessary to prove the admitted signature of PW8. But at this stage, the evidence given by PW8 in his deposition is to be noted. The relevant portion is extracted hereunder: “ Ext.D3 series ലലേയയും Ext.P18 ലലേയയും Ext.P25 ലലേയയും ” ഒപ്പുകൾ തമമൽ വവതവതസമണണ 8. Eventhough PW8 admitted his signature in Exts.P18 and P25, he also admitted that there is difference in the signature from Ext.D3. Here is a case where PW8 admitted the signature and also admitted that there is difference in the signature in Ext.D3 on the one side and Exts.P18 and P25 on the other side. PW7 and PW8 are police officials. In such Crl.M.C.No.9887 of 2023 7 circumstances, it is the duty of the court to see that whether the signatures in Exts.P18 and P25 is that of PW8. The court can do such an exercise in the light of Section 73 of the Evidence Act. It will be better to extract Section 73 of the Evidence Act: ## “ **Section 73: Comparison of signature, writing or seal with others admitted or proved.--** In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. This section applies also, with any necessary modifications, to finger-impressions.” ## 9. A perusal of the same would show that, in Crl.M.C.No.9887 of 2023 8 order to ascertain whether a signature is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. In such circumstances, I am of the considered opinion that the trial court has to consider this matter in the light of Section 73 of the Evidence Act before proceeding further with the matter. The petitioner can be allowed to raise this question at final argument also. The trial court has to consider the contention of the prosecution that the signature is proved in the light of the admission of PW8 and also consider the contention of the petitioner that, since PW7 and PW8 are police officials, their simple admission is not enough and the court has to Crl.M.C.No.9887 of 2023 9 compare the signature in the light of Section 73 of the Evidence Act. Therefore, without interfering with Annexure A10 order, there can be a direction to the trial court to compare the signature in the light of Section 73 of the Evidence Act before proceeding further. The trial court can leave open this question for consideration at the final stage of the case also. If the court feels at any stage of the case that an expert opinion is necessary, the court is free to take such a stand dehors the reasons in Annexure A10 order. While deciding the matter under Section 73 of the Evidence Act, the trial court will consider that issue untrammelled by any observation in Annexure A10 order. Therefore, this Criminal Miscellaneous Case is disposed of in the following manner: i) Before proceeding further, the trial court will compare the signature of PW8 with other Crl.M.C.No.9887 of 2023 10 admitted signatures based on Section 73 of the Evidence Act and will decide whether expert opinion is necessary. That question can be left open at the final stage also. ii) If at any stage of the case, the court feels that an expert opinion is necessary, the court is free to pass appropriate orders dehors the reasons mentioned in Annexure A10 order. iii) All the contentions of the petitioner and the prosecution are left open and they can raise the point at the appropriate stage. The trial court is free to pass appropriate orders in accordance with law, ofcourse untrammelled by any of the observation in Annexure A10 order. Sd/- DM **P.V.KUNHIKRISHNAN JUDGE** Crl.M.C.No.9887 of 2023 11 ## **APPENDIX OF CRL.MC 9887/2023** PETITIONER ANNEXURES ANNEXURE A1 THE TRUE COPY OF EXT.P18 DATED 05/01/2022 IN S.C. NO.253/22 ON THE FILE OF HON'BLE SPECIAL COURT FOR THE TRIAL OF NDPS CASES, AT KALPETTA ANNEXURE A2 THE TRUE COPY OF EXT.P25 IN S.C. NO.253/22 ON THE FILE OF SPECIAL COURT FOR THE TRIAL OF NDPS CASES, AT KALPETTA ANNEXURE A3 THE TRUE COPY OF APPLICATION DATED 10/07/23 FILED BY LEARNED PUBLIC PROSECUTOR TO PRODUCE EXT.P25 IN S.C. NO.253/22 ON THE FILE OF SPECIAL COURT FOR THE TRIAL OF NDPS CASES, AT KALPETTA ANNEXURE A4 THE TRUE COPY OF EXT.D2 DATED 12/09/22 IN S.C. NO.253/22 ON THE FILE OF SPECIAL COURT FOR THE TRIAL OF NDPS CASES, AT KALPETTA ANNEXURE A5 THE TRUE COPY OF EXT.D3 SERIES DATED 22/11/22 IN S.C. NO.253/22 ON THE FILE OF SPECIAL COURT FOR THE TRIAL OF NDPS CASES, AT KALPETTA ANNEXURE A6 THE TRUE COPY OF EXT.P27 DATED 25/05/22 IN S.C. NO.253/22 ON THE FILE OF SPECIAL COURT FOR THE TRIAL OF NDPS CASES, AT KALPETTA ANNEXURE A7 THE TRUE DEPOSITION OF PW8 DATED 29/09/23 IN S.C. NO.253/22 ON THE FILE OF SPECIAL COURT FOR THE TRIAL OF NDPS CASES, AT KALPETTA Crl.M.C.No.9887 of 2023 12 ANNEXURE A8 TRUE COPY OF APPLICATION U/S 45 OF EVIDENCE ACT, IN CRL.M.P NO. 3352/2023 DATED 06/11/23 ON THE FILE OF SPECIAL COURT FOR THE TRIAL OF NDPS CASES, AT KALPETTA ANNEXURE A9 THE TRUE COPY OF OBJECTION FILED BY THE LEARNED PUBLIC PROSECUTOR IN CRL.M.P NO. 3352/2023 DATED 13/11/23 ANNEXURE A10 THE CERTIFIED FREE COPY OF ORDER IN CRL.M.P NO. 3352/2023 DATED 17/11/23 IN S.C. NO. 253/22 ON THE FILE OF SPECIAL COURT FOR THE TRIAL OF NDPS CASES, AT KALPETTA RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE