Usman s/o Moideen v. State of Kerala

## **CR** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 23[RD] DAY OF NOVEMBER 2023 / 2ND AGRAHAYANA,** **1945** **CRL.A NO. 1250 OF 2018** **AGAINST THE JUDGMENT IN S.C.NO.20/2015 DATED 05.10.2018 ON THE FILE OF THE COURT OF SPECIAL JUDGE (NDPS ACT** **CASES), VATAKARA** ## **APPELLANT/ACCUSED:** **USMAN S/O.MOIDEEN, AGED 51 YEARS, PULIKUNNUMMAL HOUSE, NARIPOYIL PATTARAK DESOM, AMARAMBALAM VILLAGE, NILAMBUR TALUK, MALAPPURAM DISTRICT.** **BY ADV. SUNNY MATHEW** ## **RESPONDENTS/COMPLAINANT AND STATE:** - **1 THE EXCISE INSPECTOR KALIKAVU EXCISE RANGE OFFICE, MALAPPURAM DISTRICT – 673001** **2 STATE OF KERALA (RESPONDENTS 1 AND 2) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031** **SMT MAYA M.N – GOVERNMENT PLEADER** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 09.11.2023, THE COURT ON 23.11.2023 DELIVERED THE FOLLOWING:** 2 Crl.A No.1250 of 2018 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.Appeal No.1250 of 2018** **----------------------------------------------------------Dated this the 23[rd] day of November, 2023** ## **J U D G M E N T** This is an appeal against conviction and sentence filed under Section 374 of the Code of Criminal Procedure, 1973. The 1[st] accused in S.C.No.20 of 2015 on the files of the Special Court for NDPS Act, Vatakara is the appellant. He assailed the conviction and sentence for the offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985(NDPS Act). The sentence imposed is rigorous imprisonment for three years and a fine of Rs.15,000/-(Rupees Fifteen thousand only). 2. Heard the learned counsel for the appellant and the learned Public Prosecutor. 3. Case was originated on a complaint filed by PW11, Excise Circle Inspector, Nilambur. PW2 is the Excise Inspector, Kalikavu Excise Range who detected the offence. At about 8.00 p.m on 20.12.2013, he along with his colleagues were checking vehicles near Amarambalam bridge 3 Crl.A No.1250 of 2018 on the Vaniyambalam-Anjam mile road. Two persons came riding the motorcycle bearing Registration No.KL38-3228. The 2[nd] accused was the rider and the 1[st] accused was on the pillion. PW2 intercepted. Though stopped about 15 meters away, the 2[nd] accused soon took on his heels and ran away. The 1[st] accused had a plastic bag on his lap. On inspection, the bag contained 3.5 kgs of Ganja. His body was searched after giving him a notice informing him about the right to be searched before a Magistrate or a Gazetted officer and on his non insistence for the presence of a gazetted officer or a Magistrate. Nothing, except Rs.150/-, was obtained from this person. After preparing samples and necessary formalities of packing and sealing, the contraband was seized and the 2[nd] accused was arrested. Registration of the crime and necessary investigation were followed resulting in filing of the complaint. 4. Among PWs1 to 11 examined on the side of the prosecution, PW2 and 3 are the detecting officers and the officer accompanied. PWs 5 and 9 are witnesses to the search and seizure. Among them, PWs 2 and 3 deposed in 4 Crl.A No.1250 of 2018 detail about the interception of the accused, search and the seizure. PW5 stated that he signed Exts.P2 and P3 which are the Arrest memo, and Mahazar under which the contraband was seized at the place of occurrence. He also admitted the signatures on the seal affixed on MOs 1 and 2 which are the residue of Ganja and remnants of the samples. He is an auto rickshaw driver and stated that he voluntarily put those signatures. He however, did not identify the appellant - 1[st] accused or the 2[nd] accused before the court. PW9 on the other hand totally resiled from his statement before the investigating officer and deposed that he did not see the search or seizure. He admitted Ext. P3, but took the stand that he signed those documents at the office of the excise officer. 5. The appellant was produced before the court and also the material objects without delay. A report as contemplated in Section 57 of the NDPS Act was sent on the very next day. The sample received in the court was forwarded to the chemical examiners’ laboratory along with Ext.P9 forwarding note. The report of the chemical 5 Crl.A No.1250 of 2018 examiner, Ext.P18 evidences that the sample was received by the expert in an intact condition and that the sample was found to be Ganja. 6. The investigating officer had recorded the confession statement from the appellant. It is Ext.P6. The court below by placing reliance on the evidence brought on record through the witnesses to the occurrence and others as also Ext.P6 confession statement found the appellant guilty and the 2[nd] accused not guilty. 7. The learned counsel for the appellant would submit that the seizure is illegal for non compliance of Section 50 of the NDPS Act. It is his contention that the bag was on the lap of the appellant and therefore it was an inextricable part of his body, and hence before inspection of the said bag, provisions of Section 50 should have been complied with. The learned counsel further submitted that the bag in which the contraband was enclosed had not been produced in court and in the absence of a chance to examine its nature, it cannot be said that it was not the part of the body. 6 Crl.A No.1250 of 2018 8. If the object searched is a part of the body of the person, Section 50 of the NDPS Act necessarily has to be complied with. The law was explained by a Constitution Bench of the Apex court in **State of Punjab v. Baldev Singh [(1999) 6 SCC 172].** The proposition was further explained in **State of H.P v. Pawan Kumar[(2005) 4 SCC 350].** 9. In **Dayalu Kashyap v. State of Chhattisgarh [2022(12) SCC 398]** the Apex Court specifically held that if the recovery was from a polythene bag which was carried by the accused, the recovery was not from the person and therefore non compliance of the provisions of Section 50 does not defeat the prosecution. 10. The contention of the appellant that the polythene bag in the possession of the appellant, in which the contraband was enclosed was not produced in court is not correct. Item No.2 in Ext.P8 property list is the polythene bag. Appellant has no case that the contraband was not enclosed in a bag. From the cogent testimonies of PW2 and 3, the nature of the bag is quite clear. When the contraband 7 Crl.A No.1250 of 2018 was enclosed in a polythene bag, and it was found on the lap of the appellant, his possession of the same is not open for challenge. In view of the law laid down in the aforesaid decisions the there was no requirement of compliance of Section 50 of the NDPS Act in the seizure of MO2 from his possession of the appellant. 11. The learned counsel for the appellant submits that since the independent witnesses turned hostile to the prosecution, and one among them, PW9 claimed to have signed the Mahazar at the excise office, the recovery cannot be believed and the prosecution has to fail. In this regard, the learned counsel placed reliance in **Sanjeet Kumar Singh [AIR 2022 SC 4051]** . In that case, the 2 independent witnesses, not only denied their presence at the time of seizure but also asserted that they signed the document at the police station when they reached the station in connection with some other case. Holding that their version was probable, the case of the prosecution was disbelieved. 12. In this case, PW5 categorically stated that he 8 Crl.A No.1250 of 2018 signed Exts.P2 and P3 at the spot. Only thing is that he did not identify the appellant before the court. It came out in evidence that PW9 is a person having acquaintance with the appellant for about 10 years. From the evidence on record, it is confirmed that PW9 did not state the truth in court. It was after considering the nature of the evidence the court below placed reliance on the evidence of PW2 and 3. I find no reason to interfere with the said finding. 13. The prosecution was lodged after complying with all the statutory formalities. In the body search of the appellant, nothing objectionable was found. That search was conducted by PW2 after giving a proper notice, Ext.P1. Therefore the said search is quite legal as though no contraband was seized on that search. A detailed report regarding the detection of the offence was given to the superior officer in time as evident from Ext.P5. 14. In the circumstances, the evidence let in by the prosecution is proved beyond doubt that the appellant possessed 3.5 kgs of Ganja at the time when he was intercepted by PW2. The presumption under Section 54 of 9 Crl.A No.1250 of 2018 the NDPS Act follows. Finding the appellant guilty u/s 20(b) (ii)(B) of the act is therefore sound and sustainable in law. 15. The court below relied on Ext.P6 confession statement of the appellant also to find him guilty. In **Tofan Singh v. State of Tamilnadu [2021 (4) SCC (1)]** the Apex Court in the majority judgment held that the officers who are invested with powers of investigation under Section 53 of the NDPS Act are "police officers" within the meaning of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act. 16. PW11 conducted an investigation in the exercise of powers invested on him under Section 53 of the NDPS Act. In view of the law laid down in the aforesaid decision, Ext.P6 falls within the mischief of Section 25 of the Evidence Act and it is inadmissible in evidence. Therefore the said confession of the appellant cannot be used against him or his co accused. It has, however, no consequence since the 10 Crl.A No.1250 of 2018 prosecution proved beyond doubt based on the evidence it has produced that the appellant has committed the offence under Section 20(b)(ii)(B) of the NDPS Act. 17. The learned counsel for the appellant submits that the sentence imposed on the appellant is disproportionate to the offence. Having had due regard to the submissions of the learned counsel for the appellant and also the learned Public Prosecutor and further the fact that he did not involve in any other crime, I am of the view that a lenient view can be taken in sentencing him. In modification of the sentence imposed by the court below, the appellant is sentenced to undergo rigorous imprisonment for a period of one and a half years and to pay a fine of Rs.15,000/- (Rupees Fifteen thousand only). In default of payment of fine, he shall undergo rigorous imprisonment for a further period of 45 days. He is entitled to set off the period during which he was in custody in connection with this case. The appeal is accordingly allowed in part. Sd/- ## **P.G. AJITHKUMAR, JUDGE** PV