Sebastian @ Babu and Moideen v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 12[TH] DAY OF AUGUST 2022 / 21ST SRAVANA, 1944** **CRL.A NO. 2627 OF 2008** **AGAINST THE JUDGMENT DATED 07.11.2008 IN S.C.NO.853 OF 2005 OF THE II ADDITIONAL DISTRICT COURT & SESSIONS** **COURT, PALAKKAD** ## **APPELLANTS/ACCUSED 1 & 2:** **1 SEBASTIAN @ BABU S/O.ANTONY, VERNUR HOUSE, MURAMPATHI, KODANCHERRY, KOZHIKODE. 2 MOIDEEN, AGED 45 YEARS, S/O.ALAVI, PULLATHU VEEDU, THAZHE ARIYOOR, MANNARKKAD, KOZHIKODE.** **BY ADV SRI.NIREESH MATHEW** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **CIRCLE INSPECTOR OF POLICE, AGALI POLICE STATION, PALAKKAD, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SRI.SANAL P.RAJ, PP** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 29.07.2022, THE COURT ON 12.08.2022 DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.2627 of 2008 ## **JUDGMENT** The appellants are accused Nos.1 and 2 in S.C.No.853 of 2005 on the file of the II Additional Sessions Court, Palakkad. They along with the 3[rd] accused were tried for an offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “NDPS Act”). The appellants were convicted for the said offence and the 3[rd] accused was acquitted as per judgment dated 07.11.2008. The appellants were sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.25,000/- with a default sentence of rigorous imprisonment for a period of one year. The appellants preferred this appeal under Section 374(2) of the Code of Criminal Procedure, 1973, challenging the judgment of conviction and order of sentence. 2. The appellants and the 3[rd] accused stood trial on the charge that the appellants at about 11.30 p.m, on 18.03.2003, were found possessed with 2.47 kgs. of Ganja at the kitchen of the tea shop in building No.XVII/272, which belongs to the 3[rd] accused. 3 Crl.Appeal No.2627 of 2008 3. At the trial, PWs.1 to 9 were examined and Exts.P1 to P14 were marked, besides identifying Mos.1 to 9. The accused were examined under Section 313(1)(b) of the Code. After hearing both sides, the Additional Sessions Judge rendered the impugned judgment convicting and sentencing the appellants and acquitting the 3[rd] accused. 4. On 12.11.2008, this appeal was admitted. The sentence imposed on the appellants was suspended and they were released on bail on imposing conditions. 5. Heard the learned counsel appearing for the appellants and also the learned Public Prosecutor. 6. PWs.6 and 7 are the officials who, with the help and assistance of other police officials, detected the offence. PW7 was the Deputy Superindent of Police, Agali Sub Division. He along with PW6 and others went to the place of occurrence. He deposed that on getting some reliable information, he together with his subordinates went to the spot. On locating the tea shop building, they conducted a search of the building. They found the appellants dealing with 4 Crl.Appeal No.2627 of 2008 something sitting inside the kitchen of that tea shop. A kerosene lamp was lit and therefore there was enough light. It is the further version of PW7 that on convincing that the article being dealt with by the appellants was Ganja, he had seized the contraband after preparing three samples of 50 grams each. The samples as well as the remaining contraband article were separately packed and sealed. Those articles together with a winnow pan, kerosene lamp, candle, sack and plastic cover were seized by preparing Ext.P1 search list. 7. PWs.1 and 2 are the witnesses whose signatures were obtained in Ext.P1 as well as the wrapper of the samples. The appellants were arrested at the spot for which Ext.P6 arrest memo was prepared. PW6, a police constable, who accompanied PW7, also deposed in court regarding the detection, seizure and arrest of the appellants, more or less in the same terms. 8. PWs.1 and 2 did not fully support the case of the prosecution while examined in court. They admitted their signatures in Ext.P1 and also Mos.1 to 3 samples. But they 5 Crl.Appeal No.2627 of 2008 denied having seen the arrest of the appellants. PW1 stated that the time of his signing Ext.P1 was around 10.00 a.m., which is in contradiction to the case of the prosecution that the incident was at 11.30 p.m. The statements given by PWs.1 and 2 in police to the effect that they saw the whole incident are denied by them and were brought out as contradictions. Ext.P8 is such a contradictory statement given by PW1 to PW8, the Investigating Officer. Ext.P9 is a contradiction in the evidence of PW2. In view of such contradictions, it has to be said that both PWs.1 and 2 did not state the whole truth in court. However, their evidence to the effect that they have signed Ext.P1 at a near place from where the appellants were arrested goes in tandem to the case of the prosecution and the evidence of PWs 6and 7. 9. Ext.P1 search list contained the signature of the appellants. Both PWs.6 and 7 deposed in detail regarding the circumstances in which they arrested the appellants. Details of their reaching the place, search of the building No.XVII/272, seizure of the contraband, packing and sealing 6 Crl.Appeal No.2627 of 2008 of the samples as well as the reminder articles which are Mos.1 to 3 and 9 were deposed in detail by these witnesses. As regards the preparation of Ext.P1 as well as the samples, the versions of PWs.1 and 2 render enough support to the evidence tendered by PWs.6 and 7. In the light of the said evidence, the Additional Sessions Judge found that the prosecution successfully proved the allegation that the appellants were found in possession of the contraband weighing 2.47 kgs. The learned Sessions Judge considered the evidence in detail. Every reason pointed out to discredit their veracity was analysed and reached an ultimate finding that both PWs.6 and 7 are trustworthy. ## 10. The Apex Court in **Aher Raja Khima v. State of Saurashtra [AIR 1956 SC 217]** held: "The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration". 7 Crl.Appeal No.2627 of 2008 ## 11. In **Tahir v. State (Delhi) [(1996) 3 SCC 338]** , dealing with a similar question, the Apex Court stated: "Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case.” ## 12. The Apex Court again in **Karamjit Singh v. State** ## **(Delhi Administration) [AIR 2003 SC 1311]** held that,- “The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down.” ## 13. In **Baldev Singh vs State Of Haryana [(2015)** **17 SCC 554]** the Apex Court reiterated that view. In the light of the law referred to above, evidence of police officials, if 8 Crl.Appeal No.2627 of 2008 trustworthy, can be the basis for conviction, even in the absence of any independent evidence. 14. Here, the evidence of PWs.6 and 7 gets corroboration with respect to the material particulars namely their preparing Ext.P1 at that place of occurrence and also preparation of samples, from the oral testimonies of PWs.1 and 2. There is no bar in believing a part of evidence of a witness which is found reliable even if he has resiled from the other part of his previous statement. In the said circumstances, I am of the view that the prosecution proved that the appellants were found possessed with the contraband at about 11.30 p.m. on 18.03.2003 at the kitchen of the tea shop functioning in building No.XVII/272. 15. The learned counsel appearing for the appellants would contend that the prosecution is bad in law for the reasons that there was delay in registering the case, there was noncompliance of the provisions of the NDPS Act, failure of affixing sample seal in the search list, non-production of the forwarding note in court and non-examination of the Property Clerk. 9 Crl.Appeal No.2627 of 2008 16. The crime was detected and seizure effected at 11.30 p.m. on 18.03.2003. Crime was registered as per Ext.P7 F.I.R. during the same night itself. It has come out that about 14 kms. away from the Police Station is the place of occurrence. Immediately, on reaching the Police Station, PW7 registered the crime. There is absolutely no delay in registration of the crime. Therefore, the contention of the appellants in this regard is without any basis. 17. PW7 is the Deputy Superintendent of Police. The insistence that the warrant should have been obtained and a report sent to the superior officer before conducting the search contained in Section 42 of the NDPS Act are not applicable in the facts and circumstances of this case. The information received by PW7 was that two persons were handling Ganja during night hours. If the search was not done immediately, no purpose would have been served. It was in the said circumstances, PW7 sent a search memo to the court and proceeded to conduct the search. There is nothing wrong in the said procedure. Since the search was conducted by a 10 Crl.Appeal No.2627 of 2008 Deputy Superintendent of Police, who is an empowered officer, there was no requirement for him to send a report to the superior officer before proceeding with the search. So, that contention of the learned counsel also is untenable. 18. In Ext.P1 specimen of the seal, which was said to have been affixed on the sample, is not taken. It is seen that the samples along with other seized articles were produced before the court on 20.03.2003. Ext.P11 is the property list. An endorsement by the Magistrate dated 20.03.2003 is seen on it. However, it is alleged that there occurred an inordinate delay in sending the samples for chemical analysis. The said delay assumes importance in the light of the lack of evidence to co-relate the contraband with the sample examined at the Laboratory. 19. A copy of the forwarding note is not produced in evidence. The Property Clerk, who received the articles in the court has not been examined. Ext.P13 is the report of the Chemical Examiner. It is noted in it that seals on the sample packets were intact and found tallied with the sample seal 11 Crl.Appeal No.2627 of 2008 provided by the court. But there is nothing on record to show as to what was the sample seal affixed on the samples. It may be noted that despite receiving the samples in court on 20.03.2003, the same were seen sent to the Laboratory as per a letter dated 05.12.2003. There is no evidence to prove the fact with whom the samples were during the said period. Another fact that has become curious is that the weight of three samples received in the Laboratory, as per Ext.P13 is 57.47 grams, 37.02 grams and 32.57 grams. The definite case of PW7 and the recital in Ext.P1 search list are that the samples of 50 grams were prepared. There is a possibility of loss of weight since the material is Ganja. Drying up and consequent weight loss is possible. But an increase in the weight of the sample that too by 7.47 grams requires explanation. But the prosecution did not let in any evidence with respect to that aspect. In the said circumstances, the lack of production of the forwarding note from which only the samples seal could be seen, the delay in sending the sample to the Laboratory and non-examination of the Property Clerk, 12 Crl.Appeal No.2627 of 2008 become fatal to the prosecution. 20. In the above context, the observation of this Court in **Vijayan @ Pattalam Vijayan and another v. State of Kerala [2018 (2) KHC 814]** that when the forwarding note containing the sample impression was not produced in court, no importance can be given to the endorsement of the Chemical Examiner that the seals on the samples provided for examination were intact and found tallied with the sample seal gets applicable to this case. ## 21. The Apex Court in **Mohan Lal v. State of Punjab [AIR 2019 SC 3569]** held that “the failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that tested have to be co-related.” 22. In view of the principles of law laid down in the aforesaid decisions, the failure of the prosecution to produce the forwarding note thereby to co-relate the sample examined 13 Crl.Appeal No.2627 of 2008 by the Chemical Examiner with the contraband seized from the possession of the appellants goes against the prosecution. Together with that, the non-examination of the Property Clerk resulting in lack of explanation of the delay of more than nine months in forwarding the samples to the Chemical Examiners Laboratory makes the position still worse. The said aspects create serious doubt about the case of the prosecution. The benefit of doubt definitely has to go in favour of the appellants. In the above circumstances, I am of the view that the conviction of the appellants by the court below is unsustainable. Hence, the appeal is allowed and the appellants are found not guilty. They are acquitted and set at liberty. **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr