Vijayan @ Dasan and Sasidharan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 25[TH] DAY OF NOVEMBER 2022 / 4TH AGRAHAYANA, 1944 CRL.A NO. 2985 OF 2008** **AGAINST THE JUDGMENT DATED 23.12.2008 IN S.C.NO.25 OF 2008 OF THE SPECIAL COURT (NDPS ACT CASES), VATAKARA** ## **APPELLANT/ACCUSED NO.1:** **VIJAYAN @ DASAN PULLATTA HOUSE, SHOBHA PARAMBA, TANUR, MALAPPPURAM DISTRICT.** **BY ADV SRI.SUNNY MATHEW** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA INSPECTOR OF POLICE, KOZHIKODE TOWN POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SRI SANAL P RAJ, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 14.11.2022, ALONG WITH CRL.A.2987/2008, THE COURT ON 25.11.2022 DELIVERED THE FOLLOWING:** 2 Crl.Appeal Nos.2985 & 2987 of 2008 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 25[TH] DAY OF NOVEMBER 2022 / 4TH AGRAHAYANA, 1944 CRL.A NO. 2987 OF 2008** **AGAINST THE JUDGMENT DATED 23.12.2008 IN S.C.NO.25 OF 2008 OF THE SPECIAL COURT (NDPS ACT CASES), VATAKARA APPELLANTS/ACCUSED:** - **1 VIJAYAN @ DASAN, PULLATTA HOUSE, SHOBHA PRAMBA, TANUR, MALAPPURAM.** - **2 SASIDHARAN SO. VELAYUDHAN THOTTIYIL HOUSE, TANUR, MALAPPURAM. BY ADV SRI.T.G.RAJENDRAN** ## **RESPONDENTS/COMPLAINANT & STATE:** - **1 SUB INSPECTOR OF POLICE, TOWN POLICE STATION, KOZHIKODE.** - **2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SRI SANAL P RAJ, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 14.11.2022, ALONG WITH CRL.A.2985/2008, THE COURT ON 25.11.2022 DELIVERED THE FOLLOWING:** 3 Crl.Appeal Nos.2985 & 2987 of 2008 ## **JUDGMENT** The Special Court for the trial of NDPS Act cases, Vatakara, tried two accused persons on a charge for commission of an offence under Section 20(b)II(B) of the Narcotic Drugs and Psychotropic Substances Act , 1985 (for short “NDPS Act”). The 1[st] accused Vijayan @ Dasan was convicted and sentenced for the offence under Section 20(b)II(B) and the 2[nd] accused Sasidharan was convicted for the offence under Section 20(b)II(A) of the NDPS Act. The 1[st] accused filed Crl.A.No.2985 of 2008 and the 2[nd] accused filed Crl.Appeal No.2987 of 2008 under Section 374(2) of the Code of Criminal Procedure, 1973. (Both accused are arraigned as appellants. Since the 1[st] accused already had filed Crl.Appeal No.2985 of 2008, Crl.Appeal No.2987 of 2008is treated as one filed by the 2[nd] accused alone.) 2. Since both the appeals arose from the same judgment, these appeals are heard and disposed of by this common judgment. 4 Crl.Appeal Nos.2985 & 2987 of 2008 3. The appeals were admitted to file and the sentence imposed on the appellants were suspended. 4. Heard the learned counsel appearing for the appellants in the respective appeals and the learned Public Prosecutor. 5. The appellants are referred to as accused 1 and 2 for convenience. The allegation based on which the accused were prosecuted is that at about 5.00 p.m. on 23.05.2008, they were found in possession of Ganja at the Anihall Road at Kozhikode. The 1[st] accused was in possession of 1050 grams of Ganja and the 2[nd] accused was in possession of 10 grams of Ganja. Since they possessed Ganja for the purpose of sale, with a common intention, they were charged for the possession of the whole of the contraband. 6. Upon framing charge, PWs.1 to 6 were examined and Exts.P1 to P16 were marked on the side of the prosecution. Booth accused were questioned under Section 313(1)(b) of the Cr.P.C.. They maintained they are innocent and the case was foisted against them. No defence evidence was adduced. 5 Crl.Appeal Nos.2985 & 2987 of 2008 7. The Special Judge after hearing both sides, found that the evidence let in by the prosecution is enough to prove beyond doubt that the 1[st] accused possessed 1050 grams of Ganja and the 2[nd] accused possessed 10 grams of Ganja. Further, it was found that all statutory stipulations in regard to seizure, arrest and prosecution were complied with. However, the learned Special Judge held that there was no evidence to prove that the accused possessed Ganja with a mutual understanding, and therefore they could not be held responsible for the possession of the whole of the contraband. 8. The learned counsel appearing for the 1[st] accused would submit that the evidence tendered by the prosecution is insufficient to prove the complicity of either of the accused. It is further submitted that the provisions of Sections 42, 50 and 57 of the NDPS Act, which are mandatory in nature, have not been duly complied with by the prosecuting agency, and therefore the conviction is illegal. It is also pointed out that the contraband was kept in possession of PW1, who is the detecting officer. It is violative 6 Crl.Appeal Nos.2985 & 2987 of 2008 of the provisions of Section 52 of the NDPS Act, which also vitiates the prosecution. 9. The learned counsel appearing for the 2[nd] accused would submit that the provisions of Section 50 of the NDPS Act stipulates two conditions, but PW1 did not comply with the said conditions while conducting the search of the person of the accused. 10. The learned Public Prosecutor, on the other hand, would contend that all the statutory requirements were duly complied with by the detecting officer as well as the investigating officer and without there having any delay the contraband and the sample were produced before the court and took steps to get the sample tested in the Chemical Examiners' Laboratory. It is the submission of the learned Public Prosecutor that the evidence of PWs.1 and 2, who are the official witnesses, has enough support from the evidence of an independent witness, PW3. Thus the prosecution proved beyond doubt the guilt on the part of both the accused. 7 Crl.Appeal Nos.2985 & 2987 of 2008 11. PW1 was the Sub Inspector of Police in the Town Police Station, Kozhikode. At about 5.00 p.m. on 23.05.2008 he received an information that somebody was selling Ganja at Anihall road. He immediately entered the information in the general diary and sent Ext.P1 report to the superior officer, the Circle Inspector of Police, PW6. He along with PW2 and other officials went to the place, where they found both the accused. It is his version that on seeing the police party, the 1[st] accused walked towards the eastern side. However, they stopped both the accused and questioned. PW2 is the Head Constable, who accompanied PW1. 12. Both PWs.1 and 2 deposed that the accused were apprised of their right to be searched in the presence of a Gazetted Officer or a Magistrate. Since they put in writing that the presence of a Gazetted Officer or a Magistrate was not required, PW1 himself searched their person. The 1[st] accused has a plastic cover with him and on examination it was found contained 1050 grams of Ganja. On the body search, 10 grams of Ganja packed in a plastic cover was found in the loin 8 Crl.Appeal Nos.2985 & 2987 of 2008 of the 2[nd] accused. They would state that after preparing samples from the contraband found in possession of the accused persons, they seized the articles on executing Ext.P8 mahazar. They proved Exts.P2 and P3, the consent letters given by the respective accused waiving their right to be searched in the presence of a Gazetted Officer of a Magistrate. Exts.P4 and P6 are the arrest memos and Ext.P5 and P7 are the inspection memos, relating to the arrest of the accused. PW1 further stated that he arrested both the accused from the place of occurrence and on coming back to the Police Station, he registered a crime as per Ext.P9, F.I.R. 13. PW3 is a witness to the search, seizure and arrest. He deposed that while he was going to the railway station, he saw at the Anihall Road the police party intercepting accused 1 and 2. He proceeded to testify that on the search 1050 grams of Ganja was found in the possession of the 1[st] accused and 10 grams was found in possession of the 2[nd] accused. It is his version that the balance available in the police jeep was used to weigh the Ganja. He proved his signatures in Exts.P2 to P8. 9 Crl.Appeal Nos.2985 & 2987 of 2008 14. PW6 is the Circle Inspector of Police, Town Circle, Kozhikode, who conducted the investigation. He deposed in court that he received Exts.P1 and P11 from PW1 and the same were produced before the court. He stated that the forwarding note, Ext.P14 for sending the sample for chemical examination was submitted by him before the Court. Ext.P16 is the chemical analysis report. PW6 had completed the investigation and laid the charge sheet. 15. Both PWs.1 and 2 deposed meticulously regarding the procedure for seizure and arrest of the accused. A detailed description of the procedure has been stated in Ext.P8 mahazar. In the cross-examination there is nothing to discredit veracity of PWs.1 and 2 has come out. PW3 also deposed in detail regarding the arrest of the accused and seizure of Ganja from their possession. Nothing has come out in evidence to show that he has any interest in the matter or has any prejudice against the accused. Therefore, the evidence of PW3 lends sufficient support to the oral testimonies of PWs.1 and 2. Ext.P8 the contemporaneous document prepared by PW1, which is 10 Crl.Appeal Nos.2985 & 2987 of 2008 vouchsafed by PW3 further corroborates the oral testimony regarding the seizure and arrest. 16. The learned counsel appearing for the accused would contend that a copy of the G.D. showing entry regarding the information received by PW1 has not been produced and the report said to have been sent to PW6 under Section 42(2) of the NDPS Act is not a proper one. Ext.P1 is the report sent by PW1 to PW6. It is stated in it regarding the details of the information received by PW1. The original report received by PW6 in turn was produced in court. As held by the Apex Court in **Boota Singh v. State of Haryana [AIR 2021 SC 1913]** non-compliance of the requirements of Section 42 of the NDPS Act is impermissible. The provision is mandatory and its rigour cannot be lessened on any account. In this case, however, the prosecution has duly proved that Section 42(2) of the NDPS Act has been complied with. 17. 1050 grams of Ganja was found in a plastic cover possessed by the 1[st] accused. Therefore, recovery of the same is not on a personal search. Whereas, 10 grams of Ganja was 11 ## Crl.Appeal Nos.2985 & 2987 of 2008 seized from the possession of the 2[nd] accused from his loin. The person of the 1[st] accused was also searched by PW1, though nothing objectionable was found. In **S.K.Raju @ Abdul Haque @ Jagga v. State of West Bengal [(2018) 9** **SCC 708]** the Apex Court held that if merely a bag carried by a person is searched, there is no requirement of compliance of the provisions of Section 50 of the NDPS Act. But, if the bag carried by the person and also his person are searched, Section 50 does have application. Even if nothing has been recovered in such a body search, it is necessary that Section 50 of the NDPS Act is complied with. 18. As held by the Apex Court in **Arif Khan @ Agha Khan v. State of Uttarakhand [(2018) 18 SCC 380]** , the searching officer is obliged to comply with both the requirements of Section 50 of the NDPS Act before search of the person. The officer has to apprise the accused regarding his right to be searched in the presence of a Gazetted Officer or a Magistrate. Further, the officer has to give the option whether or not to get the presence of a Gazetted Officer or a 12 Crl.Appeal Nos.2985 & 2987 of 2008 Magistrate before conducting the search of that person. If any of such requirements is not complied with, the search becomes illegal. The learned counsel appearing for the 2[nd] accused would submit that in this case there occurred infraction in satisfying both the said requirements. 19. Exts.P2 and P3 are the notice signed by the accused waiving their right. It was clearly stated in Exts.P2 and P3 that the respective accused had the right to be searched in the presence of a Gazetted Officer or a Magistrate. The 1[st] accused in his own hand wrote in Ext.P2 that it was not required. Similarly, the 2[nd] accused wrote in his own hand in Ext.P3 waiving the right to be searched in the presence of a Gazetted Officer or a Magistrate. Having regard to the recitals in Exts.P2 and P3, it is clear that both accused were duly apprised regarding their right and their informed consent is reflected from their scribblings in it. Therefore, I hold that the provisions of Section 50 of the NDPS Act have been duly compiled with. 13 Crl.Appeal Nos.2985 & 2987 of 2008 20. The learned counsel appearing for the 1[st] accused further would contend that both the accused were asked in common as to whether they insist on the presence of the Gazetted Officer or a Magistrate, which is impermissible. The learned counsel placed reliance on **State of Rajasthan v. Parmanand and another [(2014) 5 SCC 345]** to fortify the said contention. In the said case, a written memorandum prepared by the searching officer to inform the two accused about their right under Section 50 of the NDPS Act and got it signed by one among them. One accused signed for himself and on behalf of the 2[nd] accused. In that situation, the Hon’ble Apex Court held that the 2[nd] accused did not independently give consent, and therefore there occurred non-compliance of the provisions of the Section 50 of the Act. Here, Exts.P2 and P3 were addressed to the accused separately and each of them signed in the respective notices. Therefore, it can safely be said that there was independent communication to each of the accused regarding their right under Section 50 of the NDPS Act. 14 Crl.Appeal Nos.2985 & 2987 of 2008 Therefore, the contention of the learned counsel appearing for the 1[st] accused in this regard is untenable. 21. Yet another contention raised by the learned counsel for the accused is that Ext.P11 is insufficient to satisfy the requirements of Section 57 of the NDPS Act. What section 57 insists on is that the detecting officer should send a report containing full particulars of the arrest and seizure. This court in **Shameer v. State of Kerala [2019 (3) KLT 586]** dilated the provision by stating that the report sent under Section 57 of the NDPS Act should contain all the required details like date and time of detection, the place of detection, the details of the accused, the nature, quantity and description of the contraband articles involved in the report sent under Section 57 of the NDPS Act. On a perusal of Ext.P11, it can be seen that all such particulars are stated in it. Hence, I am of the view that there is no deficiency in Ext.P11, and therefore the contention in this regard of the learned counsel for the accused cannot be countenanced. 15 Crl.Appeal Nos.2985 & 2987 of 2008 22. It is further contended that the contraband after seizure was not entrusted with the officer-in-charge of the nearest Police Station; instead, the property was kept in the custody of PW1 himself till the same was produced before the court. What Section 52 of the NDPS Act insists on is that after seizure, the contraband should be entrusted with the officerin-charge of the nearest Police Station or the officer empowered under Section 53 of the NDPS Act. Here, PW1 is the detecting officer. He was the officer-in-charge of the Town Police Station, within the jurisdiction of which the seizure was effected. Immediately after the seizure and arrest, PW1 came back to the Town Police Station and registered the crime vide Ext.P9, in the capacity of the officer-in-charge. When he himself is the officer-in-charge of the said Police Station, it cannot be said that there occurred non-compliance of Section 52 of the NDPS Act. 23. The upshot of the above discussion is that the prosecution has complied with all the statutory requirements in the matter of search, seizure, arrest and also initiation of 16 Crl.Appeal Nos.2985 & 2987 of 2008 the prosecution. I found above that the evidence tendered by the prosecution proved beyond doubt that the 1[st] accused possessed 1050 grams and the 2[nd] accused possessed 10 grams of Ganja. The samples prepared from the contraband were duly sent to the Chemical Examiner’s Laboratory and examined. It can be seen from Ext.P14 forwarding note that without any delay the property and the contraband were submitted before the court and the samples were forwarded. From Ext.P16 report, it is proved that the samples prepared by PW1 are Ganja (cannabis sativa). Thus, the prosecution has proved beyond doubt that the 1[st] accused possessed 1050 grams and the 2[nd] accused possessed 10 grams of Ganja. 24. The accused were found together at the time of detection. But from the evidence available on record, it is not able to say that they came to the place of occurrence with a conjoint objective of selling Ganja. Unless it is proved by cogent evidence that in pursuance of a conspiracy hatched between them, they possessed Ganja, they cannot be held responsible for the whole quantity of the Ganja possessed by 17 Crl.Appeal Nos.2985 & 2987 of 2008 them. Therefore, the finding of the learned Special Judge that the 1[st] accused is answerable to the possession of 1050 grams Ganja and 2[nd] accused is answerable to the possession of only 10 grams of Ganja, cannot be found fault with. Accordingly, I hold that the conviction of the accused does not require any interference. 25. The appellant in Crl.Appeal No.2985 of 2008 (1[st] accused) was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.10,000/-. He has been in jail during the period of trial. From the date of arrest on 23.05.2008 till the date of judgment, i.e., on 23.12.2008, he was in jail. After conviction also, he was in jail till released on bail on 30.12.2008 on the basis of the order of this Court dated 26.12.2008, by which the sentence was suspended. In the circumstances, the sentence; both substantive and default, is confined to the period he has been in jail in connection with this case. 26. The sentence imposed on the appellant in Crl.Appeal No.2987 of 2008 (2[nd] accused) is rigorous 18 Crl.Appeal Nos.2985 & 2987 of 2008 imprisonment for a period of six months and to pay a fine of Rs.5,000/-. He was in jail from 23.05.2008 to 21.06.2008 and after conviction, from 23.12.2008 till 30.12.2008, on which date he was released on bail on suspending the sentence as per the order of this Court dated 26.12.2008. Hence, both substantive and default sentence is confined to the period he has been in jail in connection with this case. The appeals are dismissed; however, with the aforesaid modification in the sentence. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr