SiJo George v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **MONDAY, THE 18TH DAY OF FEBRUARY 2019 / 29TH MAGHA, 1940** **CRL.A.No. 281 of 2011** **AGAINST THE JUDGMENT DATED 30.11.2010 IN SC 229/2010 of ADDITIONAL SESSIONS JUDGE (ADHOC-I), ERNAKULAM** ## **APPELLANT/ ACCUSED :** **SIJO GEORGE, S/O.GEORGE, PEREMOOTTIL HOUSE, NAZARETH DESOM, ALUVA WEST VILLAGE, ALUVA TALUK.** **BY ADV. SRI.DINESH MATHEW J.MURICKEN** ## **RESPONDENT/ COMPLAINANT :** **STATE OF KERALA EXCISE INSPECTOR, RANGE OFFICE, ALUVA, ERNAKULAM DISTRICT, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.RAHANA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :** **CRL.A.No. 281 of 2011** 2 ## **JUDGMENT** The appellant is the accused in SC.No.229 of 2010 on the file of the Additional Sessions Judge (Adhoc-I), Ernakulam. The allegation is that he was found in possession of 15 ampule of buprenorphine. The accused was convicted for committing offence under Section 22(c) of the NDPS Act and sentenced to undergo rigorous imprisonment for 4 years and to pay a fine of Rs.10,000/- and in default to undergo rigorous imprisonment of one year. 2. The specific case of the defence is that the appellant was taken to custody from his house and it was supported by the evidence of DWs 1 and 2. Two independent witnesses examined by the prosecution had denied the prosecution case of arrest and seizure of material objects. PW4 even denied the signature in the Ext.P2 mahazar. In the circumstances, solely on **CRL.A.No. 281 of 2011** 3 the evidence of PW1 and PW5, who are official witnesses, it cannot be held that the prosecution had proved the case against the appellant. The prosecution failed to prove the compliance of Section 50 of the NDPS Act. 3. The prosecution has examined PWs 1 to 6 and Exts.P1 to P11 were marked and MO1 to MO7 were marked. On the side of the defence, DW1 and DW2 were examined. The appellant's counsel has submitted that the prosecution has failed to prove the compliance of Section 50 of the NDPS Act. The finding of the court below that Section 50(1) of the NDPS Act need not be complied with since the search was conducted without prior information is not sustainable in law. The finding of the court below that the arrest was in the usual course under Criminal Procedure Code, then the provision under the NDPS Act need not be complied with is also not sustainable in law. If the **CRL.A.No. 281 of 2011** 4 arrest was under the criminal procedure in the usual course, Section 50(1) ought to have been complied with and the same is not complied with. As per Section 57 of the NDPS Act, any person making arrest or seizure under the NDPS Act is bound to make a full report of all particulars of such arrest or seizure of his immediate superior within 48 hours. There is no evidence adduced by the prosecution to prove that Section 57 of the NDPS Act is complied. The sentence imposed on the appellant is highly excessive and on the grounds as urged above, the appellant prays for setting aside the conviction and sentence imposed in SC No.229/2010 of the Additional Sessions Court (Adhoc-I), Ernakulam. 4. The case of the prosecution is that the offence was detected by PW1, the then Inspector of Excise Range, Aluva. He had deposed before the court that on 21.01.2010, while patrolling within the suburbs **CRL.A.No. 281 of 2011** 5 of Aluva Town, they happened to see the appellant dressed in pants and shirt, right in front of Mazhyad Complex, left of Aluva bypass-Ernakulam road. On seeing the jeep of the excise officials, he at once ran away, putting his palm on the left side of his chest. The officials on suspicion, get alighted and chased him behind. He was way laid in front of Navaratna Hotel and Bar, a few distance away from the place where he was initially found. He was prevented from his hasty attempt to wriggle out from the clutches of the officials. PW1 forcefully removed his hands and could see his shirt pocket bulged. On examination, certain ampules were found in a plastic cover in his shirt pocket. On detailed examination, 15 numbers of Buprenorphine ampules of 2ml each were found in the cover. The aforesaid contraband drug was seized by PW1 as per Ext.P2 seizure mahazar. PW1 apprehended the appellant on the spot after preparing Ext.P1 arrest **CRL.A.No. 281 of 2011** 6 memo. A sum of Rs.8,500/- was also seized from the pants pocket of the appellant as per Ext.P2 as the same was found to be the said proceeds of such narcotic drug. PW1 proved the recovery of the contraband commodity and the currency notes from the physical possession of the appellant. MO1 is proved to be the empty cases of Buprenorphine ampules returned from the Chemical Examiner's Laboratory after chemical examination. MO2 is proved to be the plastic cover in which the contraband ampules were kept by the appellant. MO3 is the brown paper packing of the contraband article. While PW1 was in the box, he testified that the contraband drug bore the name of Buprenorphine injection IP Lupigestic. It is also found that MO1 broken cases contains the label revealing the chemical name and trade name of the contraband drug. As per the evidence of PW1, he has stated that on seeing the excise officials and party, the **CRL.A.No. 281 of 2011** 7 appellant was trying to run away from the place of occurrence and intercepted him and searched his pocket and took out a plastic cover containing some ampules. According to PW1, the arrest of the appellant on the spot alone was in the presence of the witness. Again, he has stated that he has searched the pocket of the pant of the appellant and recovered Rs.8,500/notes. 5. Now the main argument on the side of the appellant counsel was that Section 50 of the Narcotic Drugs and Psychotropic Substances Act is not complied with. PW1 has deposed that MO3 is the brown paper which was used for covering 15 ampules. According to him, it contains the signature of himself, appellant and the witnesses were subscribed and affixed it as a label. He has also stated that MO4 (a) is a plastic cover which contains a label including the signature of himself, witness and the appellant. According to him, he has **CRL.A.No. 281 of 2011** 8 also recovered Rs. 8,500/- in a brown cover whereby he has seen affixed a label containing the signature of himself, witnesses and the appellant. MO7 is a paper which contains the specimen signature of himself. During cross examination, PW1, at page 222 has stated that he has not given any information that the appellant is to be examined in front of the Gazetted Officer or Magistrate. But he answered that he has not asked any question regarding the search being done in the presence of Gazetted Officer or Magistrate. Now the main attempt on the part of the appellant is that there is no proper compliance of Section 50 of the NDPS Act. ## 6. Section 50 of the NDPS Act reads thus : ## **50. Conditions under which search of persons** ## **shall be conducted. -** (1) When any officer duly authorised 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 **CRL.A.No. 281 of 2011** 9 unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. > 56[(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973. (6) After a search is conducted under sub-section (5), **CRL.A.No. 281 of 2011** 10 the officer shall record the reasons for such belief which necessitated such search and within a seventy-two hours send a copy thereof to his immediate official superior.] 7. So, in order to contemplate the same, it is mandatory on the side of the excise officials to comply with Section 50 of the NDPS Act. In this case, the appellant has taken a contention that the respondent has not complied Section 50 of the NDPS Act. As per the evidence of PW1, it is quite clear that there is no compliance as contemplated under Section 50 of the NDPS Act as is done by PW1. PW5 is another preventive officer, who said to have accompanied PW1, during the occurrence, exactly corroborated the version of PW1 proving the material particulars of the detection of the incident, apprehension of the appellant and recovery of the contraband articles. Apart from the oral testimony of PW1 and PW2, no other witnesses have supported the case of the prosecution. PW2 is **CRL.A.No. 281 of 2011** 11 none other than the Village Officer, Aluva West Village, who inspected the scene of occurrence as per the requisition of the investigating officer and prepared and issued Ext.P8 site plan. PW3 and PW4 are independent witnesses to the occurrence stood unfriendly to the prosecution. PW3 has stated that he has admitted his signature in Ext.P2 seizure mahazar. PW4 has not supported the case of the prosecution. 8. In _**Abdul Rasheed v. State of Kerala [2008 (3) KLT 150]**_ it has held that “the courts are not unfamiliar with such dishonest persons who are prepared to mortgage their conscience with a view to salvage their fellow trader. Courts may often come across such witnesses who turned out to be cunning performers in the witness box. The hostility exhibited by other witnesses cannot throw over board a prosecution which is otherwise true and genuine. If the testimony of the official witnesses is blemishless **CRL.A.No. 281 of 2011** 12 and free from suspicion and inspires confidence, the hostility shown by an ill-motivated independent witness is of no consequence”. 9. So, on the strength of the citation (supra), I have no hesitation to hold that the evidence adduced by PW1 and PW5 inspire confidence. Hence their evidence can be accepted. Now the question to be considered is whether the search and seizures narrated in the given case is illegal and vitiated due to flagrant violation of mandatory requirement of Section 50 of the NDPS Act. The learned counsel for the appellant has argued that the officer, who conducted search and effected the seizure of the contraband drug was peremptorily required as per Section 50 of the NDPS Act. It is true that the provisions of Section 50 of the NDPS Act is an essentially statutory requirement by making the inductee aware of his right to be searched before **CRL.A.No. 281 of 2011** 13 a Gazetted Officer or a Magistrate. 10. In this case, PW1 having not communicated the appellant of his right either to be searched in the presence of a Magistrate or a Gazetted Officer, the search conducted and seizure effected necessarily stands vitiated and the same cannot be relied on in evidence. Now the court below has held that all the rulings cited (supra) laid down the very same propositions of law that when an officer duly authorised under Section 42 of the NDPS Act is about to search a person, he must inform him of his right under sub section (1) of Section 50 of the NDPS Act of being taken to the nearest Gazetted Officer or nearest Magistrate for making the search. 11. The lower court has held that Section 50 (1) of the NDPS Act is held mandatory when on prior information the empowered officer or authorised officer while acting under Section 41(2) or 42 is making the **CRL.A.No. 281 of 2011** 14 search of a person. Such person, before the search is made should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder and that it is obligatory on the part of such officer to inform the person to be searched. 12. In State of Punjab v. Balbir Singh (supra), the Apex Court held that “before the authorised or empowered officer conducts a search, he should give the accused an option to be searched either in the presence of a Gazetted Officer or a Magistrate. It was also held that, Section 50 confers a valuable right on the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires and the failure to provide that option to the accused vitiates his conviction”. 13. According to the appellant's counsel, Section 50 of the NDPS Act is not mandatory if he has **CRL.A.No. 281 of 2011** 15 not received any information prior to that. Moreover, there is an attempt to prove that ordinary search was done on the body of the appellant. The court below has held that when a police officer carrying on the investigation including search, seizure or arrest empowering under the provisions of the Cr.P.C. comes across a person being in possession of narcotic drug or psychotropic substances, at that stage the question of resorting to Sec.50 and informing the accused person that if he so wants, he would be taken to a Gazetted Officer and taking to Gazetted Officer thus would not arise because by then search would have been over. 14. Upholding the dictum laid down in State of Punjab v. Balbir Singh (supra), the Apex Court further held in _**Durgo Bai and Another v. State of Punjab (AIR 2004 (SC) 4170)**_ that “if there is a chance recovery of narcotic drug or psychotropic substance during a search in exercise of the power **CRL.A.No. 281 of 2011** 16 under the provisions of the Cr.P.C., the compliance with Sec.50 does not arise”. 15. It is a settled position of law that the person to be searched under the NDPS Act, 1985 is required to be told about his right under Section 50 before he is searched and that is a mandatory requirement. No presumption to that effect can be raised. It is reported in _**Ali v. State of Kerala [2000 Crl. LJ 3181 SC]**_ . 16. It is also a settled position that Section 50 would be applicable only in a case of personal search of an accused and not when it is made in respect of some buggage like a bag, article vehicle, container etc. , which the accused at the time was carrying. This was reiterated in _**State of Haryana v. Ranbir Aias Rana [AIR 2006 SC 1796]**_ . Section 41 says regarding the power to issue warrant or authorisation. Section 42 of the NDPS Act authorised **CRL.A.No. 281 of 2011** 17 the power of entry, search, seizure and arrest without warrant or authorisation. Section 43 is empowered an officer for the seizure and arrest in a public place. So, as per Section 50 of the NDPS Act, a person is authorised under Section 42 is about to search any person under the provisions of Sections 41, 42 or 43 and such person shall do the search without unnecessary delay by taking the accused to the Gazetted Officer of any of the department mentioned in Section 42 or to the nearest Magistrate. 17. Here, PW1 has no case that he has intimated the appellant/ accused regarding his right to be searched in the presence of an Gazetted Officer or Magistrate and without complying Section 50 of the NDPS Act, he has searched the body of the appellant/ accused and took out the packet from the pocket of his shirt alleged to have contained 15 ampules of Buprenorphine and also searched the body of the **CRL.A.No. 281 of 2011** 18 appellant and took out nearly Rs.8,500/- alleged to have the sale proceedings after conducting sale of the narcotic drugs. The lower court held that in case where items were seized by a chance recovery, Section 50 of the NDPS Act is not mandatory. But, in this case, PW1 and PW5 has categorically deposed that they have seen the appellant at the place of occurrence and on seeing them, they attempted to ran away from the place. Accordingly, they intercepted and questioned him. After that they had a suspicion that he was in unauthorized possession of certain things. Accordingly, PW1 has searched body of DW1. In this case, as per the evidence of PW1, he had _bona fide_ belief that the appellant attempted to ran away from the spot and he was in possession of some articles with him. 18. Section 22 (c) of the NDPS Act reads thus :- **CRL.A.No. 281 of 2011** 19 ## **22. Punishment for contravention in** **relation to psychotropic substances** - Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any psychotropic substance shall be punishable :- (c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. 19. The court below after taking evidence punished the appellant under Section 20(b) of the NDPS Act and 20(b) would state that “if any person in contravention of any provision produces, manufactures, possesses sells, purchases, transports, imports interState, exports inter-State or uses cannabis, shall be punishable with a term which may extend to 10 years **CRL.A.No. 281 of 2011** 20 and shall also liable to fine which may extend to one lakh rupees”. 20. So, when the punishment prescribed is very high, the prosecution has to establish the guilt of the appellant beyond reasonable doubt. 21. In this case contraband article was alleged to have seized directly from the possession of the appellant/ accused without complying Section 50 (1) of the NDPS Act. Accordingly prosecution has miserably failed to establish the fact that the detecting officer has complied with Section 50(1) of the NDPS Act and in fact he has not stated that he has conducted search after complying the mandatory requirement contemplated under Section 50(1) of the NDPS Act. Therefore, I find that the entire investigation and charge laid down by the investigating officer in this case is vitiated by lack of compliance of Section 50(1) of the NDPS Act. Therefore, the appellant/ accused is **CRL.A.No. 281 of 2011** 21 entitled to get acquittal as prayed. In the result this appeal is allowed. The conviction and sentence imposed on the appellant in S.C.No.229/2010 on the file of the Additional Sessions Judge, (Ad hoc-I), Ernakulam is hereby set aside. He is set at liberty forthwith. The bail bond, if any executed, shall stand cancelled. Sd/- **ANNIE JOHN, JUDGE** RKM