Subair and Nishar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.UBAID** **THURSDAY, THE 23RD DAY OF FEBRUARY 2017/4TH PHALGUNA, 1938** **CRL.A.No. 1241 of 2012 (A)** **---------------------------** **IN SC 638/2011 of ADDITIONAL SESSIONS COURT (ADHOC-I), ERNAKULAM DATED 20-09-2012** **APPELLANT(S)/ACCUSED 1 AND 2:** **-----------------------------** **1. SUBAIR** - **S/O.MUHAMMED KUTTY, KOOTTIRINJALIL VEEDU, CHANGARAMKULAM, MALAPPURAM.** **2. NISHAR** **S/O.ABDUL HAKKIM, PLAVITTAPURAM VADAKKATHUVALAPPIL VEEDU, CHANGARAMKULAM, MALAPPURAM.** **BY ADV. SRI.T.K.KUNHABDULLA** **RESPONDENT(S)/COMPLAINANT:** **--------------------------** **STATE OF KERALA** **REPRESENTED BY THE SUB INSPECTOR OF POLICE, CHERANELLOOR, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. ALEX M. THOMBRA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ds** ## **P.UBAID, J.** - - - - - - - - - - - - - - - - - - - - - - Crl..A.No. 1241 of 2012 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of February, 2017 ## **ORDER** The appellants herein are the two accused in S.C.No. 638 of 2011 of the Special Court for NDPS Act cases, Ernakulam (the Additional Sessions Court, Adhoc-I). They faced prosecution on the allegation that at about 6.15 a.m. on 22.9.2011, near the Varappuzha Bridge, they were found jointly possessing a huge quantity of 1940 ampules of buprenorphine injection having a total volume of 3880 ml, carried in two bags when the Police intercepted their motor cycle No. KL-54/B-3493. The offence was detected by the Sub Inspector of Police, Cheranellur during his routine vehicle checking . He saw the first accused as the rider and the second accused as pillion rider, proceeding in high speed carrying two bags. The pillion rider was seen holding a bag in his hands, and the rider was seen carrying a bag hung on his shoulder. Finding the two accused perplexed on **Crl..A.No. 1241 of 20120** **-2-** interrogation, the Sub Inspector examined the bags carried by the accused. When he opened the bag of the first accused, he saw 958 ampules of buprenorphine injection (Lupigesic) and 36 ampules of Phenergan injection. When he examined the bag in the hands of the second accused, he saw 982 ampules of buprenorphine injection (Lupigesic), and 24 ampules of Phenergan injection. He found on examination that all the injection ampules were of identical nature with identical labels. The accused did not have any explanation or authority for the possession of such huge quantity of psychotropic substance. He arrested the two accused on the spot, and seized the contraband articles including the motor cycle. On the basis of the seizure and arrest, the Sub Inspector registered a crime against the two accused under Section 22(c) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act. The investigation was taken over by the Circle Inspector of Police, Ernakulam North, and after investigation, he submitted final report in **Crl..A.No. 1241 of 20120** **-3-** court. The properties and the accused were produced without any delay in court by the Circle Inspector. 2. The two accused pleaded not guilty to the charge framed against them under Section 22(C) of the NDPS Act, and claimed to be tried. The prosecution examined 7 witnesses including the detecting officer, and proved Exts. P1 to P11 documents. During the examination of PW2, Ext.C1 visiting card given to his mother by the learned counsel of the accused in the lower court, was marked. MO 1 to MO 13 properties were also identified during trial. 3. When examined under Section 313 Cr.P.C., both the accused denied the incriminating circumstances, and projected a defence of total denial. In defence, the accused examined one witness as DW1, and also proved Ext.D1 to D6 documents. 4. On an appreciation of the evidence, the trial court found both the accused guilty under Section 22(c) of **Crl..A.No. 1241 of 20120** **-4-** the NDPS Act. On conviction, they were sentenced to undergo rigorous imprisonment for 10 years each, and to pay a fine of 1 lakh each, by judgment dated 20.9.2012.₹ Aggrieved by the said judgment of conviction, the two accused have come up in appeal. 5. When this appeal came up for hearing, the learned counsel for the appellants submitted that their contention is mainly on the actual quantity of the psychotropic substance contained in the contraband articles. The learned counsel submitted that if properly assessed in terms of the actual quantity of the psychotropic substance in each ampule, it will come to below 20 grams, and in such a circumstance, the conviction under Section 22(c) of the NDPS Act cannot be sustained. Thus, the learned counsel contended that if at all the evidence on facts is acceptable, a conviction is possible only under Section 22(b) of the NDPS Act. On the factual aspects regarding arrest and seizure, much arguments were not made by the learned counsel. He **Crl..A.No. 1241 of 20120** **-5-** also submitted that only a lesser quantity of injection ampules was in fact seized from the possession of the accused, but the Police happened to record the seizure of a huge quantity in the mahazar, including the quantity seized from some other accused on the same day. The accused adduced defence evidence mainly to create a confusion regarding the actual quantity of psychotropic substance seized. But the documents proved on the side of the prosecution would not show that the detecting officer had mixed or included any substance seized from any other person, with the huge quantity seized from the hands of these two accused. 6. The learned Public Prosecutor on the other hand submitted that detection stands very well proved in this case beyond any reasonable doubt, by proper and satisfactory evidence including the evidence of the independent witness, and as regards the actual or the total quantity of psychotropic substance, there is absolutely no **Crl..A.No. 1241 of 20120** **-6-** doubt or confusion. 7. Of the seven witnesses examined by the prosecution, PW1 is the Sub Inspector of Police who detected the offence, PW3 is the Civil Police Officer who had accompanied the Sub Inspector, and PW2 is an independent witness who supported the prosecution. PW4 is only an attestor to the Ext.P7 scene mahazar, PW5 is the Village Assistant who prepared Ext.P8 scene plan, and PW6 is the Joint RTO who proved Ext.P9 registration particulars of the Motor Cycle No. KL-54/B-3493 in the name of the first accused. The case was investigated by PW7, the Circle Inspector. The final report was also submitted by him in court. 8. The detection in this case stands well proved by the evidence of PWs 1 to 3. The Sub Inspector, who detected the offence, is consistent and definite that during his vehicle checking on 22.9.2011, he saw these two accused coming on a motor cycle in high speed at about **Crl..A.No. 1241 of 20120** **-7-** 6.15 p.m. near the Varappuzha Bridge. As part of usual checking, he intercepted the vehicle. Finding something suspicious, he examined the bags carried by the accused. The first accused was the rider and the second accused was a pillion rider. The pillion rider had held a bag in his hands, and the rider had a bag hung on his shoulder. When he opened and examined the bag carried by the first accused, he saw 958 ampules of buprenorphine (Lupigesic) injection of 2 ml each, and 36 ampules of phenergan injection. When he opened and examined the bag carried by the second accused, he saw 982 such ampules of buprenorphine injection, and 24 ampules of phenergan injection. The two accused could not account for the possession of this much huge quantity of psychotropic substance. He arrested the two accused on the spot, and the psychotropic substance contained and carried in the two bags was seized as per mahazar. From the total quantity, he collected 10 ampules each as sample, and the sample packets were well packed **Crl..A.No. 1241 of 20120** **-8-** and sealed according to law at the spot of detection itself. The remaining quantity of psychotropic substance was also well packed and sealed. He obtained the signature of the accused and the witnesses on the labels affixed on the sample and the remaining quantity. The accused and the properties were brought to the Police Station where he registered the Ext.P4 FIR. Investigation was later taken over by the Circle Inspector. The defence could not bring out anything in his cross examination to discredit his evidence regarding the arrest of the two accused or the seizure of huge quantity of 1940 ampules of buprenorphine injection from the possession of the two accused. The evidence of the Sub Inspector shows that the total quantity was in fact possessed and transported by the two accused jointly as part of their illicit deal in psychotropic substances. 9. PWs 2 and 3 well corroborated the Sub Inspector as regards the arrest of the accused and seizure of psychotropic substance. PW3, the Civil Police Officer has **Crl..A.No. 1241 of 20120** **-9-** consistently stated about the arrest, the seizure, and the collection of samples. PW2 is a resident of the locality, and he happened to witness the detection in this case while he was going to Varappuzha. He saw the Sub Inspector and party questioning two persons who came there on a motor cycle. Out of curiosity, he went near, and then he saw the Sub Inspector examining the bags carried by the two persons. In court, the witness identified the two accused as the rider and the pillion rider interrogated by the Police. When the Sub Inspector opened the bags carried by the two persons, it was found containing a huge quantity of injection ampules. The Sub Inspector counted the ampules seen in the two bags, and seized it. A mahazar was also prepared at the spot of detection wherein he also signed as witness. The Sub inspector had also collected samples from the total quantity of injection ampules. During evidence, he volunteered that during trial, one advocate had visited his house, and had given a visiting card to his mother. He **Crl..A.No. 1241 of 20120** **-10-** produced the said visiting card in the court voluntarily, and it was marked as Ext.C1. This is a visiting card in the name of the counsel who defennded the accused in the trial court. I do not make any comments on this. Anyway, the witness is definite and consistent regarding the arrest of the accused by the Sub Inspector of Police, Cheranellur, and the seizure of huge quantity of injection ampules from the possession of the two accused. Of course, he does not know what it was, or whether it was any psychotropic substance. As a common man, he can only say that it was injection ampules. Thus, to that extent, the witness well corroborated the detecting officer. The defence could not bring out anything in cross examination to discredit his evidence. 10. On an appreciation of the evidence given by PWs 1 to 3, I find that seizure of huge quantity of buprenorphine injection, which is a psychotropic substance, stands well proved in this case. The total quantity seized is 1940 ampules having a total volume of 3880 ml. Of course, ## **Crl..A.No. 1241 of 20120** **-11-** as regards the phenergan injection seized from the possession of the accused, things need not be discussed because phenergan is not included as a psychotropic substance in the schedule to the NDPS Act. 11. PW6 has proved the Ext.P9 registration particulars of the motor cycle involved in this case. It belongs to the first accused. There is nothing to show that there was any flaw, or irregularity or illegality in the investigation conducted by PW7. He has explained in clear terms that the properties were in his safe custody till the properties were produced in court. Thus, it stands proved that there was no possibility of any sort of tampering with the properties at any time by anybody. The sample bottles were identified during trial by the witnesses, and the remaining quantity of substance was also well identified. The material witnesses identified the signature of the independent witnesses, and the accused on the labels affixed on the properties. The Ext.P9 Chemical Analysis **Crl..A.No. 1241 of 20120** **-12-** Report shows that on analysis, the samples were identified as buprenorphine injection. There is no reason to disbelieve or doubt the evidence of the Sub Inspector and the others as regards the sampling process done at the spot of detection. It stands well proved that the samples identified as buprenorphine injection at the laboratory were collected from the total quantity of psychotropic substance seized from the hands of two accused by the Sub Inspector. Thus, on an appreciation of the entire evidence I find that the case on facts, or the arrest of the accused and the seizure of huge quantity of psychotropic substance as per Ext.P1 mahazar, stands clearly proved in this case beyond any reasonable doubt. 12. Now the question is whether the contention raised by the defence as regards the quantity of psychotropic substance is acceptable. The learned counsel submitted that the actual quantity of the psychotropic substance contained in the mixture will have to be identified ## **Crl..A.No. 1241 of 20120** **-13-** and assessed to decide whether the total quantity is commercial quantity or below the commercial quantity. He referred to a decision of the Honourble Supreme Court in **Micheal Raj v. Intelligence Officer** (2008 (2) KLT 36) that when any narcotic drug or psychotropic substance is found mixed with one or more substances, the content of the narcotic drug or psychotropic substance in the total quantity will have to be considered for imposition of punishment. But the legal position stands well explained and settled in the light of a notification issued by the Government of India on 18.11.2009 as to how the total quantity of psychotropic substance or narcotic drug will have to be assessed. Note 4 to the notification published as S.O. 1055(E) prescribes that for computing the quantity of drug, the actual quantity of the drug cannot be separated and assessed, but the whole quantity or the whole mixture containing the narcotic drug or psychotropic substance will have to be assessed for the purpose of deciding the total quantity as to whether it is **Crl..A.No. 1241 of 20120** **-14-** commercial quantity or not. The legal position after the said notification issued by the Government of India was settled by a learned Single Judge of this Court in **Binu v. Union of India and Others** (2011 (2) KHC 817). The validity of the said notification was also upheld by this Court in the said decision. This Court held that in cases where the alleged narcotic drug or psychotropic substance is contained in a mixture, the quantity of the whole mixture, or the weight of the mixture will have to be taken for assessing and deciding whether it is commercial quantity or not. In this case, the total quantity of psychotropic substance is 3880 ml. It is a liquid mixture. Evidence convinces the court that the total quantity of psychotropic substance was jointly possessed by the two accused as part of their joint deal or trade. There is nothing to show that one can be held liable or responsible for the total quantity possessed by him alone. The decision of this Court in **Binu** 's case (supra) is well applicable here. I find that the total weight of the quantity of psychotropic ## **Crl..A.No. 1241 of 20120** **-15-** substance in 3880 ml will no doubt, make commercial quantity, and I find that the two accused were rightly convicted under Section 22(c) of the NDPS Act. To create confusion or doubt regarding the total quantity, the defence proved some documents and examined a witnesses. Of course, the witness cannot say anything about this aspect because, his evidence is only regarding the contents of the property register and other details. I find that the defence has not been in any manner able to create any sort of doubt or confusion regarding the total quantity of psychotropic substance. 13. Of course, it is true that body search of the accused was not conducted in this case because, the total quantity of psychotropic substance was found in bags carried in their hands by the accused. No such substance was seized on body search. There is no question of compliance of Section 42 of the NDPS Act in this case. Ext.P6 is the report sent by the detecting officer under **Crl..A.No. 1241 of 20120** **-16-** Section 57 of the NDPS Act to his superior officer. This was sent within time, and it contains all the required details including the details of the accused, the spot of detection, the contraband articles seized and also the details of the sampling process. Thus, everything required under Section 57 of the NDPS is contained in Ext.P6 report. That the body of the two accused was not searched under Section 50 of the NDPS Act, is not at all a ground to reject the evidence of the dectecting officer because, body search was actually not required in this case. The entire quantity of psychotropic substance was contained in two bags held in their hands by the accused. The legal position on this aspect stands well settled. I find that the detecting officer in this case had complied with all statutory requirements under the NDPS Ac,t and there was no sort of illegality or infirmity in the detection process, or the sampling process, or in the process of investigation. Accordingly, I find that the conviction in this case against the appellants under Section 22(c) of the **-17-** ## **Crl..A.No. 1241 of 20120** NDPS Act is liable to be confirmed in appeal. 14. Now the question of sentence. The sentence imposed by the court below is the minimum possible under the law in the case of commercial quantity. So there is no scope for interference in the matter of sentence also. In the result, this appeal is dismissed, confirming the conviction and sentence against the appellants under Section 22(c) of the NDPS Act in S.C.No. 638 of 2011 of the court below. Sd/- **P.UBAID** **JUDGE** ds //True copy// P.A. to Judge