Shameer v. State of Kerala

**'CR'** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.UBAID** **TUESDAY, THE 12TH DAY OF FEBRUARY 2019/23RD MAGHA, 1940** **CRL.A.No.718 of 2016** **JUDGMENT IN SC 524/2014 of ADDITIONAL SESSIONS COURT - IV, KOLLAM DATED 24-06-2016** **------------------** ## **- APPELLANT/ACCUSED :** **SHAMEER, AGED 36 YEARS, S/O.SHAHUL HAMEED, SHABNA MANZIL, MUNDAKKAL MURIYIL, KOLLAM TALUK.** **BY ADVS.SRI.K.SIJU SMT.S.SEETHA** ## **- RESPONDENT/COMPLAINANT :** **STATE OF KERALA THROUGH THE EXCISE INSPECTOR, EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL SQUAD, KOLLAM REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 682 031.** **BY SRI.SANTHOSH PETER, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.No.718/2016 ## -: 2 :- ## **'CR'** ## **JUDGMENT** The appellant herein challenges the conviction and sentence against him under Section 22(C) of the Narcotic Drugs and Psychotropic Substances Act (for short, 'the NDPS Act') in S.C.No.524/2014 of the Court of Session, Kollam. He faced trial before the learned IV[th] Additional Sessions Judge, Kollam on the allegation that at about 5 a.m. on 30.1.2014, he was found possessing 30 ampoules of Buprenorphine; each ampoule containing a quantity of 2 ml. The offence was detected by the Circle Inspector of Excise, Kollam during his usual patrol duty. During patrol, the excise party saw the accused riding on the motorcycle No.KL 2Q/8060. The Excise Circle Inspector intercepted the vehicle, and questioned the accused. On suspicion regarding possession of some narcotic drug, he expressed his intention to the accused to search his body, and accordingly, he searched the body of the accused after informing him CRL.A.No.718/2016 -: 3 :- of his right under the law to be searched in the presence of a Gazetted Officer or a Magistrate, and seized 30 ampoules of Buprenorphine contained in a packet kept inside the petrol tank cover of the motorcycle. The accused was also arrested on the spot. Three ampoules were taken as sample, and the sample packets were sealed properly. The remaining quantity of ampoules was also well packed and sealed. On the basis of the arrest and seizure, a crime was registered at the Excise office, and the details of the detection were reported to the Assistant Commissioner of Excise, Kollam, by the Circle Inspector. The Circle Inspector himself conducted investigation, and filed complaint in court under Section 22(C) read with Sections 28 and 29 of the NDPS Act. It is doubtful whether the quantity in this case would constitute commercial quantity. The issue is now before a larger Bench of the Hon'ble Supreme Court. 2. The accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed CRL.A.No.718/2016 -: 4 :- against him. The prosecution examined 15 witnesses, and proved Exts.P1 to P29 documents. The MO1 to MO3 properties were also identified. The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C., and projected a defence of total denial. The accused did not adduce any oral evidence in defence, but Ext.D1 was marked on his side. On an appreciation of the evidence, the trial court found the accused guilty under Section 22(C) of the NDPS Act. On conviction, he was sentenced to undergo rigorous imprisonment for 10 years, and to pay a fine of Rs.1,00,000/-. Aggrieved by the judgment of conviction dated 24.6.2016, the accused has come up in appeal. 3. When this appeal came up for hearing, the learned counsel for the appellant submitted that there was gross violation of the provisions of Sections 50 and 57 of the NDPS Act in this case, and that the statements allegedly given by the accused under Section 67 of the NDPS Act, on which, the prosecution would rely, stands not properly proved. CRL.A.No.718/2016 -: 5 :- The learned counsel also submitted in view of the decision of the Hon'ble Supreme Court in **Mohan Lal** v. **State of Punjab** [AIR 2018 SC 3853] that the whole prosecution is vitiated by the investigation conducted by the detecting officer himself. On this particular aspect, the learned Public Prosecutor brought to my notice an unreported decision of the Hon'ble Supreme Court in Crl.A.Nos.2450 and 2451 of 2010 between **Varinder Kumar** v. **State of Himachal** **Pradesh** , wherein the Hon'ble Supreme Court has explained that the dictum laid down in **Mohan Lal's case** will not apply to pending prosecutions, and appeals. 4. But if such one man show, or if such investigation conducted by the detecting officer has caused serious prejudice to the accused, that will vitiate the prosecution case. This position settled by a Division Bench of this Court in **Kader** v. **State of Kerala** [2001 CrLJ 4044] will have to be applied in this case, though it cannot be applied after the decision in **Mohan Lal's case** cited supra. Here is a CRL.A.No.718/2016 -: 6 :- case where, everything was done by the detecting officer. He arrested the accused, conducted body search of the accused, seized the contraband articles, registered the crime, recorded the statements of the accused under Section 67 of the NDPS Act, conducted investigation, and also filed complaint in court. Thus, everything was done by the same person. 5. Of the 15 witnesses examined in the trial court, PW1 is the Circle Inspector of Excise, who detected the offence, and PW12 is the Assistant Commissioner of Excise, examined to prove the report sent by PW1 under Section 57 of the NDPS Act. Two independent witnesses, who attested the detection mahazar, turned hostile. Practically, to prove the detection, there is only the evidence of PW1, the Circle Inspector of Excise, who detected the offence. The question is whether that evidence is sufficient for a conviction in the particular facts and circumstances, or whether the court can accept the evidence of PW1 without independent corroboration. CRL.A.No.718/2016 -: 7 :- 6. Ext.P4 is said to be the statement given by the accused under Section 67 of the NDPS Act. This provision authorises Officials to record statements given by even accused persons with the object of collecting materials for proper investigation, and to detect the offence suspected, and also to detect the persons involved in the alleged offence. The statement meant under Section 67 of the NDPS Act is not in fact a statement of confession because, such statements can be given by anybody during an enquiry or investigation. A confession can be made only by the accused. Any person having knowledge about the facts of a case can give statement under Section 67 of the NDPS Act. Such a statement cannot be said to be a confession statement. In this case, the prosecution relies on Ext.P4 as a confession statement. If at all it contains anything amounting to confession, the confession part of it must be properly proved in evidence. In this case, PW1 has only marked the Ext.P4 statement. The particular portion containing confession must be contents wise CRL.A.No.718/2016 -: 8 :- proved by the person who recorded it. On an examination of the Ext.P4 statement, I find that there is nothing in it to constitute confession as regards the facts of this case. There is one sentence in the statement that the ampoules were obtained by him from a particular person. This is the only confession part relied on by the prosecution. The accused has not explained what ampoules are meant by him, and he has not specifically referred to the ampoules of Buprenorphine seized by the Excise Circle Inspector in this case. To make it a confession, it must be a specific and clear statement indicating the commission of offence by the accused, and that must be with regard to the property involved in this case. In **Rajan** v. **State of Kerala** [2018 (3) KLT 422], this Court has explained how a confession should be proved. This Court has clarified that merely marking a statement will not suffice to prove a confession statement. The particular statement amounting to confession must be specifically proved by the person, CRL.A.No.718/2016 -: 9 :- who recorded the confession, or who heard the confession. 7. As regards the compliance of Section 50 of the NDPS Act in this case, the evidence given by PW1, and also the things recorded by him in the mahazar would show that the accused was informed of his right to be searched in the presence of a Gazetted Officer, or a Magistrate, and he had also added that he himself is a Gazetted Officer. The detecting Officer can conduct body search of the accused, without the right under Section 50 of the NDPS Act being waived by the accused, only in the circumstances provided under sub-section (5) of Section 50 of the Act. PW1 stated that the accused waived his right and consented to be examined by himself. Such waiver was not obtained in writing by PW1. The fact that there is no waiver in writing makes the evidence given by PW1 on this aspect suspicious. Any way, if at all the accused had waived his right, that waiver has no value because, while informing the accused of his right to be searched in the presence of a Gazetted CRL.A.No.718/2016 -: 10 :- Officer, PW1 had added that he himself is a Gazetted Officer. This will in fact confuse the accused regarding his right to be searched in the presence of an independent Gazetted Officer. The object of Section 50 of the NDPS Act is to ensure body search of accused in the presence of an independent Gazetted Officer or Magistrate. Here, the waiver made by the accused, if at all he had waived his right, cannot be said to be free because, the Detecting Officer had told the accused that he himself is a Gazetted Officer. 8. Practically, the option given by PW1 for search under Section 50 of the NDPS Act is a third option. As regards the value and acceptability of a third option, the law stands settled by the Hon'ble Supreme Court in **State of Rajasthan** v. **Parmanand and** **Another** [AIR 2014 SC 1384]. When the Detecting Officer tells the accused that he himself is a Gazetted Officer, giving an indication that he is also competent under the law to conduct search, the accused will get confused regarding his precious CRL.A.No.718/2016 -: 11 :- right for search in the presence of an independent Officer. 9. Of course, it is true that the contraband articles in this case were not really seized on body search. The ampoules were seen contained in a packet kept inside the petrol tank cover of the motorcycle of the accused. As regards this, the Hon'ble Supreme Court has settled that even in a case where the contraband was not in fact seized on body search, compliance of Section 50 will have to be properly proved, if the Detecting Officer had conducted the body search of the accused for any purpose. Of course, when seizure is made otherwise, a body search can very well be avoided by the officer. But, once he has opted to conduct body search, the procedure under Section 50 will have to be properly and strictly complied with. This is explained in the decisions of the Hon'ble Supreme Court in **Dilip and** **Another** v. **State of M.P.** [(2007) 1 SCC 450], and in **SK.Raju Alias Abdul Haque Alias Jagga** v. **State of West Bengal** [AIR 2018 SC 4255]. In this case, the CRL.A.No.718/2016 -: 12 :- contraband articles were seized by PW1 otherwise than on body search. Still he decided to conduct body search of the accused, and instead of informing the accused of his precious legal right, PW1 confused the accused by giving a third option about himself. 10. Now, the question is whether there is compliance of Section 57 of the NDPS Act. Ext.P9 is said to be the report sent by PW1 to his superior officer. The Assistant Excise Commissioner was examined to prove the Ext.P9 report. On a close examination of the report, I find that this report does not contain all the required details. Only the minimum details are there in the report. The report sent under Section 57 of the NDPS Act must contain all the required details like the date and time of detection, the place of detection, the details of the accused, the nature, quantity, and description of the contraband articles involved, the compliance of the mandatory provisions in the process of detection, the details of the sampling process done, the details of the crime registered, etc. It might be said that the CRL.A.No.718/2016 -: 13 :- Ext.P9 report would show substantial compliance of Section 57 of the NDPS Act. **==> picture [419 x 12] intentionally omitted <==** investigation conducted by the Detecting Officer in this case had caused any prejudice to the accused. Here, I find some instances of such prejudice. The Detecting Officer himself recorded the statement of the accused under Section 67 of the NDPS Act. When such statement is recorded by the Detecting Officer himself, and when it contains confession, his evidence may require corroboration. Non-compliance of Section 50 of the NDPS Act by way of giving a third option to the accused, and thereby confusing him about his precious legal right under the law is another instance of serious prejudice. 12. When the prosecution stands vitiated by the non-compliance of the mandatory provisions, the factual aspects of the alleged seizure need not be probed into. Two independent witnesses turned hostile, and the prosecution did not care to examine anybody else to corroborate PW1. In the particular CRL.A.No.718/2016 -: 14 :- facts and circumstances discussed above, the evidence given on facts by PW1 cannot be accepted without independent corroboration. I find that when the prosecution is vitiated by infirmities causing serious doubt about the prosecution case, the accused will have to be acquitted. In the result, the appeal is allowed. The appellant is found not guilty of the offence under Section 22(C) of the NDPS Act, and accordingly, he is acquitted of the said offence in appeal under Section 386(b)(i) Cr.P.C. The conviction and sentence against him in S.C. No.524/2014 of the court below will stand set aside, and the appellant will stand released from prosecution. Communicate the gist of this judgment to the Superintendent of the Jail, where he has been undergoing sentence. **Sd/P.UBAID JUDGE** _//TRUE COPY// P.A. TO JUDGE_ jvt/20.2.2019