State of Kerala v. Nidheesh Kumar@ Manikutthan and Renjumon

CRL.A.No.320 OF 2005 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 05TH DAY OF OCTOBER 2020 / 13TH ASWINA, 1942** ## **CRL.A.No.320 OF 2005** **AGAINST THE JUDGMENT IN CC 6/1999 OF THE COURT OF THE SPECIAL JUDGE FOR NDPS CASES, THODUPUZHA** ## **APPELLANT/COMPLAINANT:** **STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY SRI.K.B.UDAYAKUMAR, SR.GP** ## **RESPONDENTS/ACCUSED:** |**1**|**NIDHEESH KUMAR@ MANIKUTTAN,**| |---|---| ||**S/O. PURUSHOTHAMAN, KAVITHA HOUSE,**| ||**NEAR CO-OPERATIVE SOCIETY,**| ||**PANNIVIZHA KARA,**| ||**ADOOR VILLAGE.**| |**2**|**RENJUMON, S/O. SUKUMARAN**| ||**VALETHUTHEKATHIL HOUSE,**| ||**NEAR CO-OPERATIVE SOCIETY,**| ||**PANNIVIZHA KARA, ADOOR VILLAGE.**| ||**R1 BY ADV. SRI.SUJESH.J.MATHEW**| ||**R1 BY ADV. SRI.T.I.ABDUL SALAM**| ||**R1 BY ADV. SRI.P.CHANDY JOSEPH**| ||**R1 BY ADV. SRI.MATHEW SKARIA**| ||**R1 BY ADV. SRI.C.M.TOMY**| ||**R1 BY ADV. SRI.C.K.VIDYASAGAR**| **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.No.320 OF 2005 2 ## **JUDGMENT** ## **Dated this the 5th day of October 2020** State of Kerala challenged the acquittal order dated 28.12.2000 in C.C.No.6/1999 on the file of the Special Judge for NDPS Cases, Thodupuzha. The above case is chargesheeted by the Circle Inspector of Police, Kottayam West Police Station alleging the offence punishable under Sections 20(b)(ii) of the NDPS Act. 2. The prosecution case is that on 18.4.1998 at about 5.40 pm, the 1[st] and 2[nd] accused was found in possession of 199 gms of charas at Thirunakkra Temple maidan in Thirunakkara kara in Kottayam Village for sale in violation of the provisions of the NDPS Act and hence it is alleged that the accused committed the offence under Section 20(b)(ii) of the NDPS Act. 3. To substantiate the case, the prosecution examined PW1 to PW8. The prosecution marked Exts.P1 to P17 documents. MO1 to MO14 are the material objects. 4. On going through the evidence and the documents, the trial court found that the accused are not guilty and they were CRL.A.No.320 OF 2005 3 acquitted. Aggrieved by the above acquittal order, this Criminal Appeal is filed by the State. 5. Heard the learned Public Prosecutor and the learned counsel for the respondents. 6. The Public Prosecutor submitted that the trial court judgment is unsustainable. The Public Prosecutor submitted that the trial court acquitted the accused on flimsy grounds. According to the Public Prosecutor, the trial court has not considered the oral and documentary evidence before coming to the conclusion that the accused is not guilty of the offence. 7. The learned counsel for the respondents supported the judgment of the trial court. The counsel submitted that the trial court, after considering the entire oral and documentary evidence concluded that the accused is not guilty for the offences alleged against them and there is nothing to interfere with the well considered judgment of the trial court. 8. The point for consideration in this appeal is whether the acquittal order passed by the lower court is sustainable or not. 9. The Apex Court in **Sampat Babso Kale and another v. State of Maharastra (AIR (2019) SC 1852)** and **Chandrappa v. State of Karnataka (2007)4 SCC 415)** CRL.A.No.320 OF 2005 4 reiterated that the presumption of innocence attached to every accused person kept strengthened on the acquittal of the accused by the trial court. The relevant paragraph of **Chandrappa'** s case is extracted hereunder: “41. Recently, in Kallu v. State of M.P, this Court stated: (SCC pp.317-18, para 8) “8. While deciding an appeal against acquittal, the power of the appellate court is no less than the power exercised hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption to innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court.” (emphasis supplied). 10. Bearing in mind the above principle, I have to consider this appeal against acquittal. The trial court considered the oral and documentary evidence in this case in detail. The trial court found that there is violation of Section 50 of the NDPS Act. The relevant paragraphs of the impugned judgment discussing about the violation of Section 50 of the NDPS Act is extracted hereunder. “18. It was argued by learned counsel that the person of the accused was searched by PW6 in violation of S.50 of the Act and hence the search is illegal and CRL.A.No.320 OF 2005 5 M.Os. 1 to 4 cannot by themselves be used as admissible evidence of proof of unalwful possession of M.Os 1 to 4 on A1, Nidheesh Kumar. Therefore, according to him, A1, Nidheesh Kumar, and A2, Renjumon, cannot be said to have been in unlawful possession of Mos.1 to 4. But according to learned Special Public Prosecutor, there is no reason to disbelieve the version of PW6 regarding compliance with S.50 of the Act and therefore there is no merit in the above argument. That the person of A1, Nidheesh Kumar and A2, Renjumon was searched on prior information and PW6, therefore was bound to comply with S.50 of the Act cannot be disputed. It is stated in Ext.P8 mahazar prepared at the scene of occurrence and also in Ext.P15(a) suo-moto statement prepared subsequently at the police station on the same day at 7.30 pm. that when the person of A1 Nidheesh Kumar and A2, Renjumon, was about to be searched PW6 asked them whether presence of Gazetted Officer was necessary and both of them required the presence of a Gazetted Officer and accordingly they were searched in the presence of PW1, a Gazetted Officer brought there subsequently. That when the person of A1, Nidheesh Kumar, and A2, Renjumon, was about to be searched PW6 asked them whether presence of a Gazetted Officer was necessary is stated by him in his chief-examination. It was held in Hamza v. State of Kerala (reported in 1999(3) KLT 879) that a similar question put to the accused did not amount to informing the accused of his right u/s 50 to demand his search being conducted in the presence of a Gazetted Officer or a Magistrate. It was held by the Hon'ble Supreme Court in State of Punjab v. Beldev Singh (reported in J.T 1999(4)SC 595) as follows: “To be searched before a Gazetted Officer or a Magistrate, if the suspect so requires, is an extremely valuable right which the legislature has given to the concerned person having regard to the grave consequences that may entail the prosecution of illicit articles under the NDPS Act. There is, no justification for the empowered officer, who goes to search the person, on prior information, to effect the search, of not informing the concerned person of the existence of his right to have his search conducted before a Gazetted Officer or a Magistrate, so as to enable him to avail of the right. It is, however, not necessary to give the information to the person to be searched about his right in writing. The prosecution must, however, at the trial, establish that the empowered officer had conveyed the CRL.A.No.320 OF 2005 6 information to the concerned person of his right of being searched in the presence of the Magistrate or a Gazetted Officer at the time of the intended search”. It was further held: “...........Therefore, without expressing any opinion as to whether the provisions of S.50 are mandatory or not, but bearing in mind the purpose for which the safeguard has been made, we hold that the provisions of S.50 of the Act implicitly make it imperative and obligatory and cast a duty on the Investigating Officer (empowered officer) to ensure that search of the concerned person (suspect) is conducted in the manner prescribed by S.50 by intimating to the concerned person about the existence of his right that if he so requires, he shall be searched before Gazetted Officer or a Magistrate and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate would cause prejudice to an accused and render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused,where the conviction has been recorded only on the basis of the possession of the illicit article, recovered during a search conducted in violation of the provisions of S.50 of the Act. The omission may not vitiate the trial as such, but because of the inherent prejudice which would be caused to an accused by the omission to be informed of the existence of his right it would render his conviction and sentence unsustainable. The protection provided in the section to an accused to be intimated that he has the right to have his personal search conducted before a Gazetted Officer or a Magistrate, if he so requires is sacrosanct and indefeasible-it cannot be disregarded by the prosecution except at its own peril.” 19. As stated above, the aforesaid question put to A1, Nidheesh Kumar, and A2, Renjumon by PW6 was not about informing them of their right to demand their search being conducted in the presence of a Gazetted Officer or a Magistrate and it did not disclose about informing them about their right to demand their search being conducted in the presence of a Gazetted Officer or a Magistrate. 19. PW6, however, has stated in his chiefexamination that when he was about to search the person of A1, Nidheesh Kumar and A2, Renjumon, he informed them that they have the right to require CRL.A.No.320 OF 2005 7 their search being conducted in the presence of a Gazetted Officer or a Magistrate. But, Ext.P8 mahazar and Ext.P15(a) suo-moto statement can not show that he had so told A1, Nidheesh Kumar and A2, Renjumon, as admitted by him during his crossexamination. There is no other evidence to support his version on the above aspect. Had he informed A1, Nidheesh Kumar, and A2, Renjumon, that they were entitled to require their search being conducted in the presence of a Gazetted Officer or a Magistrate, as stated by him in the box, it would have normally found a place in Ext.P8 mahazar or Ext.P15(a) suo-moto statement. But, as stated above they cannot show that he had so informed A1, Nidheesh Kumar, and A2 Renjumon. When he has stated in Ext.P8 mahazar and Ext.P15(a) suo-moto statement that he asked A1 Nidheesh Kumar and A2, Renjumon, whether presence of a Gazetted Officer was necessary, which as stated above did not amount to compliance with S.50 of the Act, his omission to mention in Ext.P15(a) suo-moto statement, which can be used for corroboration as well as contradiction, that he informed A1, Nidheesh Kumar, and A2 Renjumon that they were entitled to require their search being conducted in the presence of a Gazetted Officer or a Magistrate can not be lightly viewed or easily believed . His explanation in his re-examination that the said omission occurred in Ext.P8 and Ext.P15(a) due to slip of hand does not inspire confidence. In the above circumstance, his version that he informed A1, Nidheesh Kumar and A2, Renjumon, that they were entitled to require their search being conducted in the presence of a Gazetted Officer or a Magistrate can not be believed. Therefore, I find that A1, Nidheesh Kumar and A2, Renjumon, were searched in violation of S.50 of the Act. It is well settled that any illicit article recovered during a search conducted in violation of S.50 of the Act can not by itself he used as admissible evidence of proof of its unlawful possession on the accused. If any authority is required, we find the same in State of Punjab v. Beldev Singh (reported in J.T 1999(4) SC CRL.A.No.320 OF 2005 8 595). Therefore, MOs. 1 to 4 which are nothing but charas totally weighing as 199 gms, recovered during the search of the person of A1, Nidheesh Kumar in violation of S.50 of the Act cannot by themselves be used as admissible evidence of proof of their unlawful possession of A1, Nidheesh Kumar. There is no other evidence to show that A1, Nidheesh Kumar, was illegal possesion of MOs 1 to 4. Therefore it cannot be said that A1, Nidheesh Kumar, and A2 Renjumon, or any of them was in illegal possession of MOs. 1 to 4.” 11. I think on this ground itself, the accused is entitled to the benefit of acquittal. The trial court considered the other points also in detail. The trial court came to the conclusion that the accused has not committed the offence after a detailed analysis of the entire oral and documentary evidence. I see no reason to interfere with the well considered judgment of the trial court. Therefore, this appeal is dismissed, confirming the judgment dated 28.12.2000 in C.C.No.6/1999 on the file of the Special Judge for NDPS Cases, Thodupuzha.. **Sd/-** ## **P.V.KUNHIKRISHNAN** **JUDGE** ab