Subair v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 3RD DAY OF APRIL 2013/13TH CHAITHRA 1935** **Crl.Rev.Pet.No. 644 of 2013 ()** **------------------------------CRA.283/2009 OF ADDL. SESSIONS COURT (ADHOC-III), MANJERI. CC.435/2005 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PERINTHALMANNA.** **..............** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **---------------------------------------------------------------------** **SUBAIR, S/O.MOHAMMED, PALLIPPURATH HOSUE, ANGADIPURAM, CHERAKKAPARAMBA, PERINTHALMANNA, MALAPPURAM.** **BY ADV. SRI.T.PRASAD.** ## **RESPONDENT/RESPONDENT/COMPLAINANT & STATE:** **---------------------------------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, PERINTHALMANNA, MALAPPURAM DISTRICT, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR MR.LIJU V.STEPHEN.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03-04-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs.** K.HARILAL, J. --------------------------------------Crl.R.P.No. 644 OF 2013 --------------------------------------Dated this the 3[rd] day of April, 2013. O R D E R The Revision Petitioner is the 1[st] accused in C.C.No.435/2005 on the files of Judicial First Class Magistrate-I, Perinthalmanna as well as the unsuccessful appellant in Criminal Appeal No.283/2009 on the files of Additional Sessions Judge (Adhoc)-III, Manjeri. He was prosecuted along with the 2[nd] accused for the offence punishable under Section 20(b)(ii)(A) of Narcotic Drugs and Psychotropic Substance Act (for short, 'the NDPS Act '). After trial, the learned Magistrate found the Revision Petitioner guilty of the above said offence and he was convicted thereunder. He was sentenced to undergo rigorous imprisonment for a period of one month. Though he had preferred an appeal, the Appellate Court also confirmed the conviction and sentence as such and dismissed the appeal. This Revision Petition is filed challenging the concurrent findings of conviction and sentence imposed on the Revision Petitioner. 2. The prosecution case in brief is that on 08.08.2004, at **2** _Crl.R.P. No. 644/2013_ about 7 PM, the Revision Petitioner and the 2[nd] accused were found near 'Sabrina Bar', which situates at Perinthalmanna Town and found unauthorisedly possessing dried ganja having weight of 16 and 25 grams respectively. PW1 Sub Inspector of Police, Perinthalmanna detected this case while he was on patrol duty with PWs 5 and 8. PW1 arrested the accused and seized the contraband articles under Ext.P4 seizure mahazar and thereafter he registered Ext.P1 FIR against the accused. PW7, Circle Inspector of Police, Perinthalmanna conducted investigation in this case and filed final report before the lower court alleging the above said offence. 3. The Revision Petitioner and the other accused entered appearance and pleaded not guilty before the lower court. Prosecution examined eight witnesses as PW1 to PW8 and marked Exts.P1 to P11 and MO1 to MO4. The Trial Court found the Revision Petitioner and other accused guilty of the offence punishable under Section 20(b)(ii)(A) of the NDPS Act, relying on the oral evidence of PW1 detecting officer, PWs 5 and 8 two police officers who accompanied PW1 at the material time of detection and also PWs 2 to 4 three independent eye witnesses. PW1, Sub Inspector of Police stated that while he was on patrol duty with **3** _Crl.R.P. No. 644/2013_ PWs 5 and 8, saw the Revision Petitioner along with 2[nd] accused standing near the 'Sabrina Bar' at Perinthalmanna and entering into the portico of the said Bar after inserting some small packets into the folding of their dothi and on suspicion, PW1 arrested the accused and intercepted them. On questioning, the Revision Petitioner and the 2[nd] accused confessed that the packets which they hide in the folding of their dothi is ganja. An amount of Rs.180/- was also found keeping in the shirt's pockets of the accused and the same was also seized under Ext.P4 seizure mahazar. The ganja seized from them was identified by PW1 as MO3. The oral evidence of PW1 regarding the arrest of the accused and seizure of MO3 dried ganja from the possession of accused under Ext.P4 mahazar is seen corroborated by the oral testimonies of PWs 5 and 8. PWs 5 and 8, who are the Probationary Sub Inspector and the Police Constable attached to the Perinthalmanna Police Station respectively, have also given evidence regarding the arrest of the accused and seizure of MO3 ganja, under Ext.P4 seizure mahazar. They have categorically stated that they accompanied PW1 at the material time of detection and the seizure of the contraband articles from the folding of the dothi of the accused. **4** _Crl.R.P. No. 644/2013_ 4. The main argument adduced by the counsel for the Revision Petitioner is that the mandate under Section 50 of the NDPS Act has not been complied with. The above oral evidence of PWs 1, 5 and 8 regarding the arrest of the accused and seizure of MO3 ganja were corroborated by the oral evidence of PWs 1,5 and 8. Regarding the arrest of the accused and seizure of MO3 ganja under Ext.P4 seizure mahazar is corroborated by the oral evidence of PWs 3 and 4. PW3 is the gold smith who was brought there as per the request of PW1 and he weighed MO3 ganja seized from the accused. The counsel further argued that substantial compliance is not sufficient under Section 50 of the NDPS Act. The contraband articles seized from the accused was sent for chemical examination and Ext.P12 chemical report shows that both the contraband articles were identified to be ganja. It is seen that the above finding vide Ext.P12 chemical report is not challenged by the accused before the Trial Court. Thus it is proved that the contraband articles seized from the Revision petitioner and the 2[nd] accused were ganja. The cumulative effect of the evidence stated above is that the accused had been arrested with MO3 ganja by PW1 as alleged by the prosecution. 5. Per contra, the learned Public Prosecutor submits that it **5** _Crl.R.P. No. 644/2013_ is obligatory on the part of the detecting officer to inform the accused about the right of request to have the search in the presence of the Gazetted Officers or nearest Magistrate. In the instant case, the evidence of PWs.1 to 4 disclose that the Revision Petitioner was informed of his right and he did not make such a request to be searched in the presence of Gazetted Officers or Magistrate. He agreed to be searched without the presence of Gazetted officer or Magistrate. That apart, the Revision Petitioner issued Ext.P3 consent letter agreeing to be searched without the presence of Gazetted Officers or Magistrate. This point was raised in the appeal also and the Appellate Court considered the question in detail. In the instant case, the offence was detected while they were conducting patrol duty and it was not on the basis of any prior information. PW1 has informed the Revision Petitioner regarding his valuable right under Section 50 of the said Act before making search on the body of the accused, obtained Ext.P3 consent letter agreeing to conduct search without the presence of Gazetted Officer or Magistrate. The Appellate Court found that the oral evidence of PW1 coupled with Ext.P3 consent letter issued by the accused proves the compliance of the provisions under Section 50 of the Act. PWs 5 and 8, who **6** _Crl.R.P. No. 644/2013_ accompanied PW1, at the time of seizure of the contraband articles also stated as above regarding the right of the accused provided under Section 50 of the Act. Thus the court below considered the point raised in this Revision Petition and found that there is no non-compliance of Section 50 and the Revision Petitioner was informed of his valuable right under Section 50 of the NDPS Act. 6. The learned counsel for the Revision Petitioner cited in **State of Delhi v. Ram Avatar [2011 Crl.L.J.4231]** and **Myla Venkateswarlu v. State of Andhra Pradesh [2012 Crl.L.J.2262]** . He drew my attention to paragraph 22 of the said judgment. The crux of the decision is that the safeguard guaranteed under Section 50 cannot be treated as a mere formality but it must be considered in its proper perspective. The learned counsel contended that it was provided as a right to the accused and makes it obligatory upon the officer concerned to make the suspect aware of such right. Here, the search was conducted without receipt of any prior information. Though it was not after the receipt of prior information, the evidence of PWs 1, 2 and 3 coupled with Ext.P3 consent letter shows that the Revision Petitioner was informed of his right under Section 50 and the **7** _Crl.R.P. No. 644/2013_ same can be treated above the substantial compliance. Therefore, I find that the said decision will not apply to the instant case. Similarly, the learned counsel drew my attention to paragraph 8 of the decision reported in **Myla Venketeswarlu v. State of Andra Pradesh [2012 Crl.L.J.2262]** and canvassed the point that substantial compliance is not sufficient under Section 50 of the NDPS Act. Going by the evidence in the instant case, it could be seen that the Circle Inspector of Police asked the accused whether they wanted any other Gazetted Officer for their search and seizure in addition to him. They replied that they do not want any Gazetted Officer and checking by the Circle Inspector of Police was sufficient for them. The evidence of PW1 regarding the compliance of Section 50 is supported by Ext.P3 consent letter issued by the Revision Petitioner and the same was not challenged by the Revision Petitioner in trial. Therefore, the said decision also will not help the Revision Petitioner. Going by the oral evidence supported by the documentary evidence prepared contemporaneously at the time of detection, I am of the opinion that there is no illegality or impropriety in the findings entered thereon and I find no kind of perversity in the appreciation of evidence also. Thus the Revision Petition is **8** _Crl.R.P. No. 644/2013_ devoid of merits. 7. The learned counsel for the Revision Petitioner submits that the sentence imposed on the Revision Petitioner is excessive, harsh and disproportionate with the nature of offence. I am unable to countenance such submission of the learned counsel for the Revision Petitioner. The courts below have already taken a more lenient view and sentenced him to undergo rigorous imprisonment for one month only. Having regard to the nature and gravity of the offence, I am also of the opinion that the sentence imposed on the Revision Petitioner by the court below concurrently is not harsh or disproportionate. Thus the conviction entered and sentence imposed concurrently by the courts below are confirmed and this Revision Petition is dismissed accordingly. Sd/- ## K.HARILAL, JUDGE sd True copy ## P.s.to Judge