V. C. Abdul Haris alias Kunhotty v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 21[ST] DAY OF MARCH 2022 / 30TH PHALGUNA, 1943 CRL.A NO. 1548 OF 2006** **AGAINST THE UDGMENT IN SC 18/2005 OF SPECIAL JUDGE NDPS ACT CASES),** ## **VADAKARA** ## **APPELLANT:** V.C.ABDUL HARIS @ KUNHOTTY S/O.CHEKKU, AGED 20 YEARS, VETTIKKATTU CHALIL, HOUSE, KURUMBATHOOR AMSOM, PUNNATHALA DESOM,, MALAPURAM. BY ADV SRI.SUNNY MATHEW ## **RESPONDENT:** STATE OF KERALA THROUGH THE SUB INSPECTOR OF POLICE, CHEMMANGAD POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. ADV. SUDHEER GOPALAKRISHANAN – PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 21.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A NO. 1548 OF 2006 2 ## **JUDGMENT** The appellant is the 1[st] accused in SC No.18/2005 on the file of the Court of the Special Judge (NDPS Act Cases) Vadakara. The aforesaid case arises from Crime No.51/2004 of Chemmangad police station. ## 2. The prosecution case is as follows:- At about 4.45 pm on 7/9/2004, the Sub Inspector of Police, Chemmangad police station, upon getting information that three persons were selling Ganja at a bus stop at Vattampoyil, apprehended three persons, including the appellant. On searching their body, nothing could be detected, but when the plastic cover that the appellant/first accused was holding was examined, it was found to contain 1.600 Kg of ganja. Immediately, the appellant and the two other accused persons were arrested on the spot and the articles were also seized. Later, the accused, as well as the articles, were produced before the court. After completing the investigation, the final report was submitted, and the case was CRL.A NO. 1548 OF 2006 3 tried by the Special Judge (NDPS Act Cases) Vadakara as SC.No.18/2005. 3. From the side of the prosecution, PWs 1 to 6 were examined, Exts.P1 to P10 were marked, and Material Objects 1 to 4 were identified. 4. After the closure of the prosecution evidence, the accused were examined under Section 313 of Cr.P.C and the incriminating materials were brought out during the course of the trial. All of them denied it. 5. After evaluating the materials available on record, the learned Special Judge (NDPS Act Cases) Vadakara concluded that the appellant/1st accused is guilty of the offences, and the accused nos 2 and 3 were found not guilty. Accordingly, the appellant herein was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.10,000/- in default, to undergo rigorous imprisonment for six months for the offence punishable under Section 20(b)(ii)(B) of the NDPS Act. This appeal is filed challenging the aforesaid finding of conviction and sentence. CRL.A NO. 1548 OF 2006 4 6. Heard Sri.Sunny Mathew, the learned counsel appearing for the appellant and Sri.Sudheer Goplakrishnan, the learned Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant mainly contends that there is non compliance of the statutory stipulations contemplated under Section 50 of the Act. It was also contended that, even though the prosecution had a specific case that the accused nos 1 to 3 were in joint possession of the contraband article, the offence under Section 34 of the IPC was not incorporated in the final report. It is pointed out that the appellant and the 2[nd] accused were aged 20 years, and the 3[rd] accused was aged 55 at the time of the conviction. According to the learned counsel for the appellant, the real culprit was the 3[rd] accused and had the prosecution incorporated Section 34 of the Act, he would not have been acquitted. According to the learned counsel, this caused prejudice to him because the appellant herein was holding the bag as per the instructions of the 3[rd] accused without knowing the contents. In such circumstances, interference is sought in the CRL.A NO. 1548 OF 2006 5 finding of conviction arrived at by the learned Special Judge (NDPS Act Cases) Vadakara. 8. On the other hand, the learned Public Prosecutor would oppose the contentions above. It is specifically pointed out by placing reliance upon the evidence of PWs 1 and 2 that the question of non-compliance of Section 50 does not arise in this case because of the reason that the seizure was not from the body search of the appellant herein but on the other hand, the contraband article was found in the plastic bag which he was carrying at the relevant time. According to the learned Public Prosecutor, even otherwise, there are specific recitals in Ext.P3 seizure mahazar, which is corroborated by the evidence of PW1, to the effect that the right of the appellant to have his body search conducted in the presence of the Magistrate or Gazetted Officer was conveyed to him and yet he had opted not to exercise the same. To substantiate this, Exhibits P1 series consent letters of the accused were produced and marked. About the contention of the learned counsel for the petitioner regarding the non-inclusion of Section 34 in the final report, it is pointed out by the learned CRL.A NO. 1548 OF 2006 6 Public Prosecutor that it has no consequences as far as the appellant herein is concerned. In such circumstances, the learned Public Prosecutor prays for the dismissal of the appeal. 9. The 1[st] contention that has been raised by the learned counsel for the appellant relates to non-compliance with Section 50 of the NDPS Act. The learned counsel places reliance upon the judgment in _**Shihab v. SI of Police, Kottakkal and another [2021(5)KLT 491]**_ wherein it was held that, failure to convey to the accused that he has the right to get the body search conducted in the presence of a Magistrate or Gazetted Officer, before conducting the body search is fatal to the prosecution. In this case, the question that arises is whether there is non-compliance of Section 50 of the Act. Ext.P3 is the seizure mahazar, which is a contemporaneous document. In the aforesaid document, there is a clear statement that the recovery was affected from a plastic cover that the appellant was holding at the relevant time. The body search did not result in the recovery of any article. The aforesaid statement is reiterated by PW1, who detected the articles and prepared Ext.P3 seizure mahazar. PW2 is the other witness who CRL.A NO. 1548 OF 2006 7 was also party to the police team which detected the offence. He also reiterated the aforesaid facts. PW4 is an independent witness and had attested to in Ext.P3 seizure mahazar. He admitted his signature but failed to identify the accused persons. However, from the perusal of the deposition of PW4, it is seen that he clearly stated that on the relevant day, he found the police arresting the accused persons and recovering the articles from one of them. Thus, when I consider the evidence of PWs 1, 2 and 4 coupled with the recitals contained in the contemporaneous document, i.e. seizure mahazar, it is evident that the prosecution has set up a consistent case to the effect that the recovery was effected from the plastic cover which the appellant was holding at the relevant time and not from his body. The procedure contemplated under Section 50 is applicable only in respect of the body search, and since the contraband article, in this case, was recovered not from the body search, non-compliance with Section 50, even if found, would not have any consequence. Moreover, the contention of the learned counsel for the appellant regarding the non-compliance of Section 50 itself is against the materials placed on record. Even CRL.A NO. 1548 OF 2006 8 though I have already held that the non-compliance of Section 50 does not have any consequence, in this case, it is only proper to mention the materials available on record concerning the same, for completing the facts of the case. In Ext.P3 seizure mahazar, it is clearly mentioned that the appellant was informed of his right to get the body search conducted in the presence of a Magistrate or a Gazetted Officer, and he had not opted for the same. 10. The aforesaid statement has been reiterated by PW1 in his deposition as well. It is true that PW4, the independent witness, has not mentioned the same. Merely because of the reason that the independent witness did not mention about the same, the evidence adduced by the official witnesses should not be discarded. If the evidence of the official witness is consistent and reliable, the same can be relied upon. In this case, since the contemporaneous document in the form of Ext.P3 seizure mahazar contains a specific recital as to the communication of the existence of the right as contemplated under Section 50 to the accused, the contention of the learned counsel for the appellant is not legally sustainable. CRL.A NO. 1548 OF 2006 9 11. At this stage of the argument, the learned counsel for the appellant pointed out that the aforesaid documents would not indicate that the appellant was informed of his right concerning Section 50 of the NDPS Act. In other words, while communicating the same, it was not informed that the said right emerges from Section 50 of the NDPS Act. 12. In my view, the non-mentioning of the specific provision is not fatal to the prosecution. If it is proved that if the right regarding the manner in which the body search has to be conducted is properly communicated to the accused, that will amount to compliance with stipulations under Section 50 of the NDPS act. In such circumstances, I am of the view that the contentions of the learned counsel for the appellant in this regard are not legally sustainable. 13. The next contention put forward by the learned counsel for the appellant is regarding the non-inclusion of Section 34 of IPC. It was pointed out that the 3[rd] accused was aged 55 years, whereas the other accused, including the appellant herein, were aged 20 years only. According to the learned counsel, the CRL.A NO. 1548 OF 2006 10 appellant was holding the plastic bag based on the instructions of the 3rd accused without knowing the contents therein. In the said circumstances, it was contended that had the prosecution included Section 34, the other accused would not have been acquitted in this case. By placing reliance upon the said fact, it is contended that this indicates the falsity of the prosecution case. However, I am not inclined to accept the aforesaid contentions for more than one reason. Firstly, it is not seen from the records that the appellant had set up such a case before the trial court. No questions to that effect are seen raised during the examination of witnesses, and no explanation in this regard is seen made while his statement was recorded under Section 313 of the Cr.P.C. Apart from the above, the non-inclusion of Section 34 cannot have an impact as far as the culpability of the appellant is concerned. As per Section 20(b)(ii)(B) of the NDPS Act, mere possession without any license or authorization of a narcotic drug is sufficient to attract the offence. In this case, there is ample evidence indicating that the contraband article was found in the appellant's possession. CRL.A NO. 1548 OF 2006 11 In such circumstances, I do not find any reason to entertain the contentions put forward by the learned counsel in this regard. In such circumstances, I do not find any merit in this appeal. Accordingly, the appeal is dismissed by confirming the conviction and sentence imposed by the Special Judge (NDPS Act Cases) Vadakara as per judgment dated 5/8/2006 in SC.No.18/2005. Sd/- **ZIYAD RAHMAN A.A. JUDGE** ska