Subramonian v. State of Kerala (Crl.A. No. 220 of 2014)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **THURSDAY, THE 10TH DAY OF DECEMBER 2015/19TH AGRAHAYANA, 1937** **CRL.A.No. 220 of 2014 () ------------------------AGAINST THE JUDGMENT IN SC 813/2013 of II ADDITIONAL SESSIONS COURT, PALAKKAD DATED 15-02-2014 CRIME NO. 18/2001 OF AGALI POLICE STATION , PALAKKAD** **APPELLANT/ACCUSED: -----------------** **SUBRAMONIAN AGED 48 YEARS S/O.MAYILSWAMY CHETTIAR, KALIYAMPUTHUR, PANIKUNUR P O POLLACHI, THAMILNADU(IN CUSTODY) BY ADVS.SRI.T.M.CHANDRAN SRI.S.SUJITH SRI.V.A.SASIDHARAN SRI.JOSEPH ALBIN NEDUNTHALLY** **RESPONDENT/COMPLAINANT: ----------------------** **STATE OF KERALA REP BY CIRCLE INSPECTOR OF POLICE, AGALI THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM- 682 031(CRIME NO 18/2001 OF AGALI POLICE STATION** **BY PUBLIC PROSECUTOR:SMT. M.G.LISHA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01.10.2015, THE COURT ON 10.12.2015 DELIVERED THE FOLLOWING:** ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - **Crl.A. No. 220 of 2014** - - - - - - - - - - - - - - - - - - Dated this the 10[th] day of December, 2015 ## **JUDGMENT** The sole accused, who stands convicted in S.C.No.813/2013 of the Additional Sessions Court, Palakkad for offence punishable under Section 20(b)(ii)(B) of the NDPS Act, is the appellant herein. 2. The case of the prosecution is that on 20/1/2001 at about 1.45 p.m., the Sub Inspector of Police, Agali police station, got a secret information that one person was proceeding in an autorickshaw towards Anakkatti side with a big-shopper containing ganja. The Sub Inspector along with the police party intercepted the autorikshaw bearing No.KL09E/2316, which was found proceeding along the road. One person sitting in the rear seat tried to flee, who was intercepted. The police party opened the big-shopper, which contained a packet of ganja. Body search was conducted in accordance with Section 50 of the NDPS Act after a gazetted officer was brought to witness the body search. Nothing was Crl.A.No.220 of 2014 2 recovered from his body. He was arrested. Contraband weighed 5.600 kgs. Two samples of 50 grams each were separated. The samples and the balance contraband were packed, wrapped, sealed, label affixed and the mahazar prepared. Thereafter, he was produced before the Magistrate. Investigation was thereafter completed and the final report laid before the Sessions Court. The accused appeared before the Sessions Court, pleaded not guilty and demanded trial. On the side of the prosecution, PWs 1 to 9 were examined and Exts.P1 to P9 were marked. MOs 1 to 3 series were identified. On an evaluation of the available materials, the court below found the accused guilty, convicted and sentenced him to undergo RI for three years and to pay a fine of Rs. 10,000/- and in default, to undergo RI for six months. 3. The accused, who is in jail, has preferred this appeal. Heard both sides and examined the records. 4. The prosecution is relying on the oral testimony of PW1, the detecting officer, mainly to prove the guilt of the accused. He was sought to be corroborated by the oral testimony of PW2 and PW3, who were the police constables, claimed to be party to the Crl.A.No.220 of 2014 3 search and seizure. PW4 was the Gazetted officer, who claimed to have supervised the body search. PW9 was the autorickshaw driver,in whose autorickshaw the accused was allegedly travelling at the time of the incident. He is also projected as an eye witness to the entire incident. The oral testimony of PW1 and the above witnesses is sought to be corroborated by the contemporaneous documents Ext.P2, the seizure mahazar Ext.P3, the property list and MO3 labels affixed on the ganga, along with the material objects. PW1 in his evidence deposed that he got prior information about the transportation of ganja. The road, through which the accused was allegedly travelling, lies in front of the police station itself. He deposed that he immediately went out and intercepted the autorickshaw which came in doubtful circumstance. On search, contraband was recovered and the sample was also taken. He deposed in accordance with the meticulous details mentioned in Ext.P2 mahazar. He deposed that two samples of 50 grams. each were separated, packed and labels affixed. He also claimed that it was in compliance with Sections 42 and 43 of the NDPS Act. PWs2 and 3, the police constables, also generally spoke in accordance Crl.A.No.220 of 2014 4 with the version deposed by PW1. PW4, the Gazetted Officer was brought to witness the interception. He deposed in relation to the body search of the accused. 5. It is pertinent to note that though PW1 to PW4 generally supported the prosecution, PW9, though has given evidence in support of the prosecution, at the same time strangely many of the versions spoken by him were totally contrary to the prosecution version. According to PW9, after the vehicle was intercepted by PW1,it was understood that the big shopper contained ganga. Immediately, one person from the check post came and opened the packet and recovered ganga. This is in toto contrary to the version of PW1 to PW3, who have uniformly stated that when the vehicle was intercepted by PW1, it was found that ganja was concealed in a packet and that for the purpose of body search, one constable was sent to the nearby check post to bring PW4. According to PW1, search of the plastic bag was done by PW1 alone and not by PW4. On the other hand, according to PW9, it was PW4 who opened the packet. He further stated that immediately thereafter the accused was taken to the police station and several papers were filled up and he Crl.A.No.220 of 2014 5 was also asked to sign. This is also contrary to the prosecution case that the seizure mahazar was prepared in the spot. At a later stage of cross examination, the above witness contradicted himself by stating that he had signed the mahazar at the spot where the autorickshaw was parked. Another contradiction was that, according to PWs 1 to 3, when the vehicle was intercepted, the accused tried to flee but, he did not get out of the autorickshaw. On the other hand, PW9 had a case that immediately after the vehicle was intercepted, the accused got out and ran away. According to him, he had run up to the distance of ten feet. This is totally contrary to the version of PWs 1 to 3. Yet another important contradiction was that according to PW9 weighing balance for weighing the contraband was brought from a nearby shop by a policeman. On the other hand, version of the police was that it was taken from the kit of the police. Evidently, the version of PW9 is totally contrary to the prosecution version on several material aspects. 6. It is pertinent to note that though the incident happened on 20/1/2001, Exts.P1 FIR, Ext.P2 mahazar and Ext.P3 property list reached the Palakkad Court only on 22/1/2001. The items Crl.A.No.220 of 2014 6 mentioned in Ext.P3 property list also reached the court on 22/1/2001. The prosecution has no explanation as to why the delay occurred. 7. It is also pertinent to note that even though PW2 and PW3 were claimed to be the persons who formed the police party and conducted search and seizure, both of them did not sign Ext.P2 mahazar. Even though both of the above witnesses claimed to be present at the time of search and seizure, there is absolutely no record to show that in fact they were present at the spot. Reference to Ext.P2 shows that only Ext.P4, the Gazetted officer and PW9, the autorickshaw driver, have signed Ext.P2 mahazar. On the other hand, prosecution has no case as to why the others, who were constables and were also the members of the search team, did not sign Ext.P2 seizure to confirm their presence. 8. The learned counsel for the accused pointed out that there were several contradictions and infirmities in search, seizure and also the evidence tendered by the witnesses. When PW1 was examined, he had stated that he had affixed his seal on the contraband as KPN. When he was questioned as to what was Crl.A.No.220 of 2014 7 the full form of the abbreviation KPN, he deposed that he does not know. However, he stated that it was his personal seal. However, PW7,the Circle Inspector of Police, deposed that it was an official seal and the full form of KPN was Kerala Police Northern range. Ext.P7, was an intimation to the Circle Inspector of Police, claimed to have been sent by PW1, before proceeding for the search. The date on the copy is mentioned as 19/1/2001. On the other hand, on the bottom portion, date 19[th] is corrected as 20[th] . Further, according to PW3, the witnesses had spent about 1 to 1 ½ hours at the spot. On the other hand, PW4 stated that he returned from the spot after 10 to 15 minutes. Further PW1, in his evidence had stated that he had asked the accused as to whether he required the presence of any gazetted officer. On the other hand, the version of PW2 was that PW1 had enquired as to whether the accused needed the presence of the gazetted officer or the judicial magistrate. 9. The learned counsel for the accused further contended that even according to PW1, he got information at 1.45. p.m. PW2 stated that immediately after getting information they went out,waited for about five minutes and after that, autorickshaw Crl.A.No.220 of 2014 8 came. They intercepted, opened the bag and found contraband inside it. Thereafter, CW3 was deputed by PW1 to proceed to the nearest check post situated at a distance of 50 to 60 meters and to bring PW4, the gazetted officer. After the body search, the accused was arrested at 1.50 p.m. PW1 had further stated that the mahazar was prepared thereafter. Evidently, if PW1 and his team had received information at 1.45 p.m, gone out and waited for five minutes, by that time the actual time would have been 1.50 p.m. There were several activities that transpired thereafter till it resulted in the arrest of the accused, which according to PW1 was again at 1.50 p.m. In other words, the time spoken by PW1 does not tally with the timings seen in his own version as well as in the documentary evidence. 10. Yet another important factor to be noted is that even though it was stated that the arrest of the accused was informed to his relatives by telegram, there is no supporting document. The arrest memo or arrest intimation are also not available on record. Even though PW1 and PW7 has stated that arrest was intimated through RDO, it is also not supported by documentary proof. Crl.A.No.220 of 2014 9 11. The learned counsel for the accused vehemently attacked the claim of the prosecution that there was strict compliance of Sections 42 and 50 of the NDPS Act. Evidently, there was prior information. PW1 has no case that immediately on receipt of the information he had recorded it. There would not have been sufficient time also since immediately after getting the information they had rushed out and intercepted the accused within five minutes. Evidently, there was no time left for them to comply with the first part of Section 42.The prosecution also has no case that information was recorded in writing. However, Ext.P4 is the report dated 20/1/2001 alleged to have been sent to the CI of Police, Agali. Ext.P4 shows that it was sent through PC 2784 and received by the CI of Agali at 9.30. p.m. There is an endorsement of the CI that it was received at 9.30 p.m. at his camp at Shornur police station. Beneath it there is a further endorsement that the original was sent to the Hon'ble Court through the same police constable- PC 2784. However, though it is clear that the original note was forwarded to the court, it was not available on record. A copy of Ext.P4 alone was marked through PW1. PW7, the investigating officer, had stated that a Crl.A.No.220 of 2014 10 copy was seen in the CD file. There was no explanation as to what had happened to the original of Ext.P4. In other words, there is absolutely no evidence to show that there was compliance of Section 42 of the Evidence Act. 12. Regarding compliance of Section 50 of the NDPS Act, PW1 had stated that he enquired with the accused as to whether he required the presence of the gazetted officer or not. Evidently, he had no case that both the options were put to the accused. In cross examination, he admitted that the records do not show such an offer was made. On the other hand, PW2 stated that since the presence of gazetted officer was required, he had called the gazetted officer from the nearby check post. According to him, when the compliance of Section 50 was put to the accused, he stated that he will be satisfied with any officer. Though PW1 stated that he had partially put the requirements of Section 50 to the accused, there was no corresponding entry in Ext.P2. Ext.P2 mahazar only stated that after search of the bag since the body search was warranted, the presence of the gazetted officer was ensured by calling the officer from the nearby check post. Specific reference that option under Section Crl.A.No.220 of 2014 11 50 was put to the accused is conspicuously absent in Ext.P2. Ext.P2 does not even speak of any such offer being made. It is pertinent to note that in spite of this, PWs 1 to 3 gradually improved their version with PW1 stating that PW1 had made an offer for requiring the presence of the gazetted officer. PW2 stated that PW1 had spoken about both the requirements. PW7 tried to salvage this position by stating that when the detecting officer was dictating Ext.P2 mahazar, the police constable omitted to write that an offer under Section 50 was put to the accused. In other words,PW1 was stating a reason which even the detecting officer did not have. When a specific question was put to PW1, that compliance of Section 50 of the Act is not seen in Ext.P2, he had no explanation. Further had such an offer been made but omitted to be mentioned in Ext.P2 mahazar, either PW1 should have stated that or corresponding entries should have been there in the FIR, which was another corresponding contemporaneous document. It also does not reflect compliance of Section 50 of the NDPS Act. In otherwords, there is no compliance of Section 50. 13. The Hon'ble Supreme Court in several cases has held Crl.A.No.220 of 2014 12 that even a partial compliance of the mandatory provisions of Sections 42 and 50 would not be sufficient. This has been reiterated in the decisions in **Sukhdev Singh v. State of Haryana [(2013) 2 SCC 212] and State of Rajasthan v. Paramanand And Another [(2014) 5 Supreme Court Cases 345).** The Apex Court in both the decisions held that even partial compliance would not be sufficient. 14. An evaluation of the entire evidence show that the evidence tendered by the prosecution is unreliable and has raises several doubts on the prosecution case. Further, there is no compliance of mandatory provisions of sections 42 and 50 of the NDPS Act. This will cut at the root of the prosecution case. Hence, the accused is entitled for acquittal. In the result, the appeal is allowed. The impugned judgment and conviction of the court below are set aside and the accused is acquitted. He shall be released from jail forthwith if his further continuance is not warranted in connection with any other case. Bail bond executed by him stands discharged. Sd/- **SUNIL THOMAS** dpk **Judge** /true copy/ PS to Judge **.** Crl.A.No.220 of 2014 13 dpk