Subair v State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 22[ ND ] DAY OF AUGUST 2023 / 31ST SRAVANA, 1945`** ``` CRL.MC NO. 6742 OF 2023 AGAINST THE ORDER/JUDGMENT SC 90/2023 OF SPECIAL COURT (ATROCITIES AGAINST SC/ST), MANJERI ``` ## **`PETITIONER/S:`** ``` SUBAIR AGED 42 YEARS S/O MUHAMMED, KALANGADAN HOUSE, MATTATHUR P.O., PARAPURAM, MALAPPURAM KERALA 676 528, PIN - 676528 BY ADVS. V.VINAY NISSAM NAZZAR ``` ## **`RESPONDENT/S:`** ``` 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682031 (CRIME NO.619/2022 OF KOLATHUR POLICE STATION, MALAPPURAM DISTRICT), PIN - 682031 2 STATE POLICE CHIEF OFFICE OF THE STATE POLICE CHIEF, THIRUVANANTHAPURAM-695 014, PIN - 695014 3 ADDITIONAL DIRECTOR GENERAL OF POLICE CRIME BRANCH, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM 695 014, PIN - 695014 4 STATION HOUSE OFFICER KOLATHUR POLICE STATION, VALANCHERY-NILAMBUR ROAD, KOLATHUR, MALAPPURAM 679 338, PIN - 679338 SRI. VIPIN NARAYAN, SR. PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22.08.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 6742 OF 2023 ``` ``` 2 ``` ## **ORDER** The petitioner is the 1st accused in S.C. No 90/2023 on the file of the Special Court for Scheduled Caste and Scheduled Tribe (POA) & NDPS Act Cases, Manjeri. He has approached this Court seeking the following reliefs - A. Quash all further proceedings in SC No 90/2023 on the file of the Special Court for Scheduled Caste and Scheduled Tribe (POA) & NDPS Act Cases, Manjeri as the same is an abuse of process of Court and is in violation of the principles of fair trial or in the alternative. - B. To quash the order dated in Crl.M.P. 1799/2023 of the Special Court for Scheduled Caste and Scheduled Tribe (POA) & NDPS Act Cases, Manjeri denying the documents and evidence collected during investigation. - C. To stay all further proceedings in a C. A. No. 90/2023 of thethe Special Court for Scheduled Caste and Scheduled Tribe (POA) & NDPS Act Cases, Manjeri till a decision is taken and communicated to the Petitioner in Annexure-VIII, X and XI representations submitted before Respondents 2 and 3. 2. Short facts of the case are as under: On 21/09/2022 at about 6:15 PM, the Petitioner was allegedly found having in his possession 140 g of MDMA while he was standing near the Padaparambu-Perinthalmanna Public Road near to the Al Hilal Academy. It is the specific case of the prosecution that accused No 1 and 2, in pursuance to the ``` CRL.MC NO. 6742 OF 2023 ``` ``` 3 ``` conspiracy hatched among themselves to conduct the sale of narcotic drugs and substances, purchased the contraband from Virajpetta and brought the same for sale at Padaparambu. The investigation has been completed, and the final report has been laid before the jurisdictional Court. 3. Sri Vinay, the learned counsel for the petitioner, submitted with vehemence that the petitioner is innocent. He urged that the petitioner was roped in at the instance of a certain Mr. Amal Kumar, who has influenced the investigating officer. It is contended that the petitioner had advanced certain amounts to Mr. Amal Kumar. On 21/9/2022, the petitioner was requested to come to Perinthalmanna under the guise of receiving repayment for the said loan. The petitioner alleges that a plastic bag, which he was led to believe contained cash, was handed to him. However, upon inspection, the bag was found to contain a powdery substance. Immediately, the police reached the spot, and though the petitioner had discarded the bag, he was arrested on charges of possessing an illicit substance. Initially, it was believed to be MDMA, but subsequent tests identified it as methamphetamine. The petitioner states that he has submitted several complaints to senior police officials, urging them to conduct a thorough investigation to ``` CRL.MC NO. 6742 OF 2023 ``` ``` 4 ``` uncover the truth. The learned counsel submitted that the 2nd accused is the employer of the 1st accused, and according to him no materials were collected to link the accused with the contraband. The final report was submitted without a comprehensive investigation, submits the learned counsel. Drawing upon the directions given by the Apex Court in to Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials v. State of Andhra Pradesh (2021 (3) KHC 273), the learned counsel highlighted the obligation of the Investigating Officer to submit all evidential materials to the court that would include the confessional statement of the accused. The learned counsel urged that subsequent to the aforementioned judgment, the Criminal Rules of Practice in Kerala were amended. Furthermore, it is urged that the petitioner had sought for issuance of directions to the Investigating Officer to produce the call data records of the accused collected at the time of investigation. However, without considering the prayers in accordance with law, the application was rejected, and the case was posted for framing of charges on 24/08/2023. The learned counsel also raised arguments on the validity of the FSL report from RFSL, Thrissur, arguing it lacks legal credibility since the laboratory is not certified to analyze ``` CRL.MC NO. 6742 OF 2023 ``` ``` 5 ``` narcotic/psychotropic substances as stipulated by the NDPS Rules 1985. He further contends that the chemist of the Regional Forensic Science Laboratory, Thrissur, does not fit the definition of a 'chemical examiner' under the rules. Relying on Pepsico India Holdings Pvt Ltd. v. Food Inspector & anr (2010 (4) KLT 706), it is argued that an analytical report issued by a non-accredited lab cannot be accepted. The learned counsel urged that the failure of the prosecution to provide the confession statements and CDR details would result in considerable prejudice. Finally, reference is made to the order passed by this Court in B.A. No. 628/2023, and it is urged that the Public Prosecutor stated before the Court that a confession statement from the accused was procured, which confirmed the roles of both, the petitioner and the 2nd accused. 4. Sri Vipin Narayanan, the learned public prosecutor, opposed the submissions advanced by the learned counsel. It is pointed out that the Petitioner had earlier filed an application before the learned Sessions Judge seeking issuance of directions to the investigating officer to preserve the call data records and travel location of the mobile phones used by Sri Amal Kumar, the Detecting Officer, and the Circle Inspector of excise, Perinthalmanna for the period from 1/09/2022 to 31/09/2022. The ``` CRL.MC NO. 6742 OF 2023 ``` ``` 6 ``` learned Sessions Judge, by order dated 25/07/2023, had allowed the application and directed the investigating officer to preserve the call data records and tower locations of the mobile phones mentioned in the application. Insofar as the confessional statements stated to have been furnished by the accused are concerned, it is pointed out by the learned public prosecutor that the prosecution has no case that any confessional statement was recorded of either accused No 1 or 2. No such document was produced by the investigating officer before the Court concerned as well. When no such statement was recorded, and no such statement is relied upon by the prosecution, it is nothing but futile for the Petitioner to demand that the so-called confession statement be furnished. It is further submitted that in view of the law laid down by the Hon’ble Supreme Court in **Tofan Singh v. State of Tamil Nadu** 2021 (4) SCC 1, officers empowered under Section 53 of the NDPS Act are Police officers within the meaning of Section 25 of the Evidence Act and confessional statement made to such officers cannot be taken into account in order to convict an accused. Insofar as the request for issuance of directions to the investigating officer to produce the call data records of the phones of the accused is concerned, it is submitted by the learned public ``` CRL.MC NO. 6742 OF 2023 ``` ``` 7 ``` prosecutor that nothing stands in the way of the Petitioner filing an appropriate application before the Court to summon the mobile service provider and also for issuance of directions to keep the same in safe custody. The learned public prosecutor would also draw the attention of this Court to Section 172 (3) of the Code of Criminal Procedure, and it was pointed out that neither the accused nor his agents are entitled to call for the case diaries, nor shall he or they be entitled to see them. Insofar as the acceptability of the forensic analysis report is concerned, it is pointed out by the public prosecutor that the said contention cannot be sustained in the light of the law laid down by the Hon’ble Supreme Court in **State of HP v. Pawan Kumar** (AIR 2004 SC 4743). 5. I have carefully considered the submissions advanced by both sides. 6. It has to be immediately noticed that the CrlM.P. No 1799/2023 filed by the petitioner, which led to the passing of the impugned order, has not been placed on record. 7. The first grievance of the petitioner regards the failure of the prosecution to provide copies of the confession statement of the accused to the petitioner as prayed for in the application. It appears from the petition that the contention of the petitioner is ``` CRL.MC NO. 6742 OF 2023 ``` ``` 8 ``` that his employer was roped in on the strength of a confession statement. The contention of the prosecution is that no statement has been recorded under Section 67 of the NDPS Act, 1985, and no such statement is being relied on by the prosecution. Under Section 173 of the Code of Criminal Procedure, as soon as the investigation is completed, the officer-in-charge of the Police Station is required to forward to the Magistrate empowered to take cognizance of the offence on a police report in the form prescribed by the State Government stating the details as mentioned in Section 173(2)(i)(a) to (h). Under Section 173(5) of the Code, when such report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during an investigation and (b) the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses. If the police officer is of the opinion that any part of any such statement is not relevant to the subject matter of the proceedings or that its disclosure to the accused is not essential in the interest of justice and is inexpedient in the public interest, he shall indicate that part ``` CRL.MC NO. 6742 OF 2023 ``` ``` 9 ``` of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such a request. Section 173(7) says that where the police officer investigating the case finds it convenient to do so, he may furnish to the accused copies of all or any of the documents referred to in sub-section (5). 8. It would also be relevant to refer to Section 172 of the Code, which deals with a diary of proceedings in investigation. Section 172(2) says that a Criminal Code may send for the police diaries of a case under inquiry or trial in such Code and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the court. However, if they are used by the police officer to refresh his memory or if the court uses them for the purpose of contradicting such police officer, the provisions of Section 161 or Section 145, as the case may be, of the Indian Evidence Act, 1872 shall apply. 9. In Criminal Trial Guidelines regarding Inadequacies & Deficiencies (supra), the Apex Court had observed that the right of the accused to properly defend himself/herself would include the ``` CRL.MC NO. 6742 OF 2023 ``` ``` 10 ``` right to access all statements documents, and material objects under Section 207/208 of the Cr.P.C. Directions were issued to amend the Rules of Practice in accordance with the draft Rules framed. In accordance with the directions issued by the notification dated 02.07.2022 was issued bringing in an amendment to Rule 19 of the Criminal Rules of Practice by adding sub-Rule (4), which reads as under: “Every accused shall be supplied with statement of witnesses recorded and a list of documents as are mentioned in Sections 173, 207 and 208 of the Code. In addition, every accused shall be supplied with a list of material objects which the Investigation Officer relies upon. The list shall also specify those statements, documents and material objects that are not relied upon by the Investigating Officer.” 10. In view of the amendment, the accused is entitled to the statement of witnesses recorded and the documents made mentioned in Sections 173, 207, and 208 of the Code. The accused are also to be supplied with a list of material objects which the Investigating Officer relies upon. The list shall also specify those statements, documents, and materials objects that are not relied upon by the Investigating Officer. 11. In the case on hand, what has been demanded is the alleged statement recorded purportedly under Section 67 of the NDPS Act, though it is not specifically stated so. The prosecution ``` CRL.MC NO. 6742 OF 2023 ``` ``` 11 ``` asserts that the confession statement has not been recorded and they also state that the said statement is not one of those documents that are to be forwarded to the court under Section 173 of the Code. As pointed out by the learned Public Prosecutor, the Apex Court in Tofan Singh (supra) has held that a confession statement recorded by an officer empowered under Section 53 of the NDPS Act 1985 cannot be used for any purpose in a Court of law in view of the bar under Section 25 of the Indian Evidence Act. When no reliance could be placed on such a document, even if the same is available, it is quite futile to contend that the such a document should be supplied to the accused. In that view of the matter, the request of the petitioner to furnish the confession statement purported to have been recorded cannot be granted. 12. The next prayer of the Petitioner was to issue directions to the investigating officer to produce the call data records, which, according to the Petitioner, were seized by the investigating officer. As rightly held by the learned Sessions Judge, nothing stands in the way of the Petitioner in taking steps to obtain their call data records from the mobile service providers. It would be open to the Petitioner to file an appropriate application before the Court below to issue directions to the Mobile Service Provider to ``` CRL.MC NO. 6742 OF 2023 ``` ``` 12 ``` preserve the CDR or to summon them at the appropriate time. From the order, it is clear that the learned Sessions Judge has reserved his right to seek such directions. 13. The next contention of the learned counsel appearing for the petitioner is that the sample was analysed in an accredited lab, and, therefore, the analysis report cannot be used for any valid purpose. Identical contention was taken up before the Supreme Court, and the same was repelled in Pawan Kumar. Paragraphs Nos. 6 to 8 are relevant. **6.** Rule 2( c ) of the NDPS Rules has to be read in conjunction with Chapter III of the said Rules including Rules 17 and 22. These Rules show that when the opium is delivered by the cultivator to the District Opium Officer, if suspected of being adulterated with any foreign substance, it shall be forwarded to the Government Opium Factory. Chapter III relates to analysis of samples of lawfully cultivated and produced opium. Rule 22 provides for confiscation if opium on examination by the Chemical Examiner is found to be adulterated. There is no provision in the NDPS Act or Rules debarring chemical analysis of opium found to be in illegal possession of an accused contrary to the provisions of the Act and seized, in any other laboratory which may be authorised to analyse the sample. There is also no requirement that such opium must be examined by the Chemical Examiner within the meaning of Rule 2( c ). **7.** In the present case, two notifications — one dated ``` CRL.MC NO. 6742 OF 2023 ``` ``` 13 ``` 14-4-1982 and the other dated 9-4-1984 issued by the Government of Himachal Pradesh have been extracted in the impugned judgment. By notification dated 14-4-1982 issued in the name of the Governor, Himachal Pradesh, the Public Analyst, Himachal Pradesh Food and Drugs Laboratory, Kandaghat, District Solan was appointed as Chemical Examiner for the whole State of Himachal Pradesh with immediate effect in public interest. By notification dated 9-4-1984, the setting up of composite testing laboratory at Kandaghat, District Solan, Himachal Pradesh for analysing/testing samples taken from various departments mentioned in the notification under various Acts/Rules was ordered with immediate effect. The Police Department is one of the departments mentioned therein. The notification, inter alia, provides that function of the laboratory is testing of samples, sent by various departments, the police being one of them. **8.** The High Court, with reference to the above notifications, has noticed that the NDPS Act was enforced subsequent to the issue of notifications and the notifications would not cover the cases under the said Act. I am unable to sustain this view. The notification dated 9-4-1984 is not restricted to the testing of samples sent under any particular Act/Rule. It is a notification which empowers the laboratory at Kandaghat to analyse and test the samples sent by the Police Department under various Acts/Rules without mentioning the name of any Act/Rule. The notification would not exclude samples sent for testing under the NDPS Act. The notification is not restricted to only those Acts and Rules which were in existence when the notification was issued. Clearly, it would include the testing of samples sent by the Police Department under any Act or Rule which may even come into operation after the issue of the notification. In our view, the Full Bench of the Madhya Pradesh High Court in Ram Dayal v. Central ``` CRL.MC NO. 6742 OF 2023 ``` ``` 14 ``` Narcotic Bureau [1993 Cri LJ 1443 (MP) (FB)] on analysis of Sections 9 and 76 of the NDPS Act and Rule 2( c ) rightly came to the conclusion that there is no provision in the Act and the Rules debarring chemical analysis of unlawfully possessed opium seized in connection with an offence, elsewhere at any other laboratory. The High Court fell into an error in excluding from consideration the opinion of the Chemical Examiner, Kandaghat Laboratory (Exhibit PF). Therefore, the conclusion of the High Court that the prosecution has failed to prove that the incriminating material recovered from the possession of the respondent was opium, could not be sustained. 14. In the case on hand, the Government of Kerala has issued a notification vide No.G.O.(Rt)No.2193/2022/Home dated 06.8.2022 issuing guidelines regarding norms for delegation of cases, case transfer, administrative and operational control of various District Forensic Science Laboratories in the State of Kerala. The Regional Forensic Science Laboratory, Thrissur, is empowered to conduct all kinds of advanced testing, including DNA examination. The notification does not exclude samples sent for testing under the NDPS Act. 15. In view of the discussion above, none of the contentions advanced by the petitioner merit any acceptance. 16. In this petition, this Court is only adverting to the sustainability of Annexure 9 order passed by the learned Sessions Judge. Though the petitioner appears to have filed various representations ``` CRL.MC NO. 6742 OF 2023 ``` ``` 15 ``` before the higher authorities, no prayer is sought in this petition for issuance of directions. In that view of the matter, the right of the petitioner to pursue the grievances raised by him in the representations submitted by him before the respondents 2 and 3 are left open. This petition will stand dismissed. Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** avs ``` CRL.MC NO. 6742 OF 2023 ``` ``` 16 ``` ## **`APPENDIX OF CRL.MC 6742/2023`** ## **`PETITIONER ANNEXURES`** |`Annexure 1`|`THE TRUE COPY OF THE FIR IN CRIME NO.619/2022`| |---|---| ||`REGISTERED BY KOLATHUR POLICE STATION, MALAPPURAM`| |`Annexure-II`|`THE TRUE COPY OF THE REMAND REPORT DATED`| ||`22.09.2022 OF PETITIONER IN CRIME NO.619/2022 OF`| ||`KOLATHUR POLICE STATION`| |`Annexure-III`|`THE TRUE COPY OF THE REMAND REPORT DATED`| ||`06.10.2022 OF THE PETITIONER IN CRIME NO.619/2022`| ||`OF KOLATHUR POLICE STATION`| |`Annexure-IV`|`THE TRUE COPY OF THE REMAND REPORT DATED`| ||`10.11.2022 OF THE PETITIONER IN CRIME NO.619/2022`| ||`OF KOLATHUR POLICE STATION`| |`Annexure-V`|`THE TRUE COPY OF THE REMAND REPORT DATED`| ||`13.11.2022 OF THE 2ND ACCUSED IN CRIME NO.619/2022`| ||`OF KOLATHUR POLICE STATION`| |`Annexure-VI`|`THE ACCUSED COPY OF THE FINAL REPORT IN CRIME`| ||`NO.619/2022 OF KOLATHUR POLICE STATION`| |`Annexure-VII`|`THE TRUE COPY OF THE DRIVING LICENSE OF MR. AMAL`| ||`KUMAR ISSUED BY QATAR GOVERNMENT`| |`Annexure-VIII`|`THE TRUE COPY OF THE REPRESENTATION DATED`| ||`13.05.2023 ALONG WITH POSTAL RECEIPT ADDRESSED TO`| ||`THE 2ND RESPONDENT`| |`Annexure-X`|`THE TRUE COPY OF THE REPRESENTATION DATED`| ||`18.07.2023 SUBMITTED BEFORE THE 2ND RESPONDENT`| ||`ALONG WITH POSTAL RECEIPT DATED 21.07.2023`| |`Annexure-XI`|`THE TRUE COPY OF THE REPRESENTATION DATED`| ||`18.07.2023 SUBMITTED BEFORE THE 3RD RESPONDENT`| ||`ALONG WITH POSTAL RECEIPT DATED 21.07.2023`| |`Annexure-XII`|`THE TRUE COPY OF THE ORDER DATED 25.07.2023 IN`| ||`CRL.M.P NO. 1/2023 IN S.C NO.90/2023 OF THE`| ||`SPECIAL COURT FOR SC/ST (POA) & NDPS ACT CASES,`| ||`MANJERI`| ``` CRL.MC NO. 6742 OF 2023 ``` ``` 17 ``` ``` Annexure-XIII THE TRUE COPY OF THE FSL REPORT DATED 17.02.2023 ISSUED BY THE RFSL, THRISSUR ```