Viswanathan Pillai v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` WEDNESDAY, THE 20[TH] DAY OF DECEMBER 2023 / 29TH AGRAHAYANA, ``` ## **`1945`** ``` CRL.A NO. 1419 OF 2019 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 03.09.2019 IN SC NO.410 OF 2018 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, ``` ## **`KOLLAM`** ``` APPELLANT/ACCUSED: ``` ``` VISWANATHAN PILLAI, AGED 57 YEARS S/O CHELLAPPAN,CONVICT NO.3525, CENTRAL PRISON AND CORRECTIONAL HOME, POOJAPPURA, THIRUVANANTHAPURAM. ``` ``` BY ADV STATE BRIEF ADV.RESMI NANDANAN ``` ## **`RESPONDENT/COMPLAINANT:`** - 1 **`STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.`** - 2 **`THE CIRCLE INSPECTOR OF EXCISE, EXCISE RANGE OFFICE, KOTTARAKKARA.`** ``` OTHER PRESENT: ``` ## **`GP SMT. MAYA M.N.`** ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON, ``` ``` 13.12.2022, THE COURT ON 20.12.2023 DELIVERED THE FOLLOWING: ``` Crl.A. No.1419 of 2019 -:2:- ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1419 of 2019 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of December, 2023 ## **JUDGMENT** Appeal on hand is preferred by the accused who was found guilty of an offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’), convicted and sentenced by Additional Court of Sessions-IV, Kollam in SC No.410/2018 by judgment passed on 03.06.2019, to undergo rigorous imprisonment for five years and pay a fine of `50,000/- and simple imprisonment for six months in default of payment of the fine. 2. As per the allegations of the prosecution, at about 7 p.m. on 13.12.2017 while the Excise Inspector, Excise Range, Kottarakkara was engaged in patrol duty alongwith a team of officers through Kottarakkara Railway Station – Padinjattinkara Mahadeva Temple Road, they found the accused standing there carrying a black bag. Out of suspicion, the Excise Officer questioned him and apprised of his right to have the search of his Crl.A. No.1419 of 2019 -:3:- body conducted in the presence of a Gazetted Officer or a Magistrate. He answered that he does not require the presence of anyone to witness the search and thereupon search of his body as well as the bag carried by him were conducted by the Excise Inspector himself. 3.010 Kgs of Ganja was seized from his bag. The accused was arrested then and there and a crime was registered. Investigation was conducted by CW10 in the case and a complaint was filed against the accused, alleging that he has committed an offence punishable under Section 20(b)(ii)(B) of the NDPS Act. 3. The accused was remanded to judicial custody and a counsel was appointed on his request to defend him at the expense of the State, vide orders of Taluk Legal Services Committee, Kollam. The prosecution and the defence were heard under Section 227 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’) and ultimately charge was framed under Section 20(b)(ii)(B) of the NDPS Act, read over and explained to the accused. He pleaded not guilty and faced trial. 4. Prosecution examined 6 witnesses and marked Exts.P1 to P15 in evidence. Mos 1 to 5 were also identified. Upon Crl.A. No.1419 of 2019 -:4:- closure of the evidence of the prosecution, the accused was questioned with reference to the incriminating circumstances which were brought on record by the prosecution in evidence against him. He denied all those and took a specific stand of false implication in the case by Mr.Manoharan, the then Excise Inspector to wreck his vengeance since one of his relatives died at his hands. According to him, immediately after his release on serving the sentence imposed on him in the murder case, he was booked in the case on hand by planting Ganja. The trial court on appreciation of entire evidence on record, found him guilty, convicted and sentenced him with the punishment aforestated. 5. The appeal on hand was preferred from Jail and Adv.Reshmi Nandan was appointed to defend the accused at the expense of the State. Charge was framed by the trial court in the case against the appellant alleging commission of an offence punishable under Section 20(b)(ii)(B) NDPS Act. Charge was read over and explained to him, but he pleaded not guilty and faced trial. 6. The main contention of Smt.Reshmi Nandan, the learned counsel was that depositions of the official witnesses as well as Crl.A. No.1419 of 2019 -:5:- an independent witness were relied on by the prosecution to substantiate its case. But the version of the independent witness did not corroborate with the versions of the official witnesses even in material aspects of the case. According to her, the detecting officer failed to comply with the mandatory requirements contemplated by Section 50 NDPS Act before conducting the search of the body of the accused and seizure of the Ganja. The learned counsel contended vehemently that the accused in the case on hand was falsely implicated out of grudge of an official of the Excise against him since he committed the murder of one of his relatives. She canvassed for reversal of the finding of guilt of the accused for the offence and orders of conviction and sentence, for the reasons. 7. The learned Public Prosecutor canvassed on the contrary that the finding of guilt of the accused and orders of conviction and sentence passed against him are only to be confirmed. According to her, from the evidence adduced by the prosecution itself, it is established that the mandatory requirements under Section 50 NDPS Act are complied with. The learned counsel contended furthermore that the officials of the Excise who were Crl.A. No.1419 of 2019 -:6:- examined as PWs 4 and 5 have also spoken about the material aspects of the prosecution case corroboratively and therefore the trial court is justified in arriving at a finding of guilt against the accused on its basis. According to her, the allegation of false implication raised by the defence was not established by evidence and therefore, it has nothing to do with the case stands proved by the prosecution. 8. A scrutiny of the deposition of the detecting officer as well as his companion officer respectively as PW6 and PW5 would convince this Court that those corroborate in all material aspects. The witnesses also survived the cross examination by the defence at length. The version of PW3, an independent witness finds corroboration in the versions of the official witnesses. No doubt, presumption under Sections 35 and 54 of NDPS Act would then be attracted in favour of the prosecution. 9. The offences under the NDPS Act when proved against, invites stringent punishment on the accused. Therefore, it is essential and important to have a thorough scrutiny of the oral evidence relied on by the prosecution. The officials dealing with cases of the nature must be strict and duty bound to see that the Crl.A. No.1419 of 2019 -:7:- procedures are strictly complied with and transparency is maintained in the performance of the formalities commencing from the search, seizure, drawing of samples, sealing, packing, arrest of the accused, keeping of those in safe custody, production of the sample of the contraband in the court as well as the Chemical Examiner’s Laboratory without being tampered and registration of crime. 10. In the case on hand both PWs 5 and 6 would say in categoric terms that search of the body of the accused was conducted after making him convinced of the right available to him under Section 50 of NDPS Act to have it done in the presence of a Gazetted Officer or a Magistrate. Evidence on record would indicate that the accused when given an option to choose one among the officers to witness his body search, answered that he doesn’t require any one. His answer was also obtained in writing from him. Therefore, argument that Section 50 NDPS Act is not complied with is devoid of any basis. 11. It is pertinent to note that during search of the body of the accused nothing incriminating was recovered. The contraband was established as recovered from the black bag carried by the Crl.A. No.1419 of 2019 -:8:- accused. When recovery was made from the search of the bag carried by him, compliance of the mandatory requirements under Section 50 NDPS Act is not warranted as held by the Apex Court in **State of Punjab v. Baljinder Singh and another** [2019 KHC 7150 (SC)]. But, when search of the body of the person was also intended by the officials and held, it is mandatory that the procedural formalities envisaged under Section 50 are complied with. On an appreciation of the evidence on record, this Court can say affirmatively that Section 50 has been duly complied with by the officials instrumental for seizure of the contraband. The argument advanced against non-compliance of Section 50 is therefore, repelled. 12. True that a contention was precisely raised on false implication. According to the accused, he had murdered one of the relatives of an Excise Official namely Mr.Manoharan and he took his revenge for that by falsely planting Ganja in his bag and a drama of recovery of contraband was created. 13. An independent witness cited by the prosecution alleging that he had witnessed the entire incident and attested the scene mahazar which is a contemporary document relied on Crl.A. No.1419 of 2019 -:9:- by the prosecution to convince the court about the compliance of formalities performed by them at the spot while seizing the contraband. It is pertinent to note that during examination of the independent witness as PW3, he has spoken to the extent extracted hereinbelow : " എന്റെ വീട്ക ൊട്ടാരക്കരയാണ്. Railway Porter ആണ്. 13.12.2013 നാണ്സംഭവം. വൈ കീട 6 മണികഴിഞഞഞാൻ railway station ൽ നിന്നും ശിവ ക്ഷേ ത്രത്തിലേ ക്കു പ ോവുകയായിരുന്നു. മന്നം English Medium school ന്മുന്നിൽ എത്തിയപ്പ ോൾഒരാളെ Excise വണ്ടിയിൽകയറ്റുന്നത്കണ്ടു. അയാളുടെ കയ്യിൽഒരുകറുത്ത bag ഉണ്ടായിരുന്നു. Bag തുറന രണ്ടുപ ൊതിഎടുത്തു. അത്കഞ്ചാവായിരുന്നു. മഹസറിൽഞാൻ ഒപ്പിട്ടു. Mahazar already marked as Ext. P1. 2 പാക്കറ അതിലെ label ൽഞാൻഒപ്പിട്ടു. ഇപ്പ ോൾകാണുന്ന label ലെ ഒപ താണ്. Samples S1 & S2 marked as MO1 & പഎന്റേ MO2. ബാക്കിവന്ന label ഒപ്പിട്ടു. Remnant portion of sample marked as MO3, MO4. ബാഗിൽഎന്റെ ഒപ്പുണ. Marked as MO5. അന്ന് Excise കാർ പിടിച്ച ആളാണ് ക ോടതിയിൽഉള്ളത്. (Identified the accused). ## **Cross** . പ്രതിയെ അന്നാണ്ആദ്യമായികാണുന്നത് പേര രോവിവരമമോ അറിയില്ല. പേ ര്പിന്നീട് Excise കാർവന്നുപറഞ്ഞപ്പ ോൾ പേ രറിഞ്ഞു. പ്രതിയുടെ മേൽവിലാസംപറഞ്ഞിട്ടില്ല. Excise office ൽചായക ൊണ്ടുക ൊടുക്കുന്നജ ോലിയാണ്. മൊത്തം 6 Crl.A. No.1419 of 2019 -:10:- ഒപ്പിട്ടു. അത് Excise കാർക ൊണ്ടുപ ോയി. Excise office ലെ സ്ഥിരംസാക്ഷിയാണ്എനനപറഞ്ഞാൽശരിയല്ല.” 14. Though the prosecution has cited him with a view to strengthen its case with an independent support, his version is confined only to certain aspects of the prosecution case. The signature affixed in the seizure mahazar marked in evidence as Ext.P1 was deposed as authored by him. The seizure mahazar incorporates the entire formalities performed by the officials at the spot of seizure of the contraband. But, during examination, PW3 failed to depose about all those aspects and therefore, this Court has to take a view that he had not actually witnessed the entire aspects of the prosecution case. It is pertinent to note that PW3 was not questioned with reference to the matters omitted to depose by him, by putting leading questions to him. Therefore, on failure of PW3 to depose the entire aspects of the prosecution case as was spoken by the official witnesses examined as PWs 4 and 6 this Court feels it unsafe to hold that he was available at the spot at the relevant time and can only be considered as a witness planted for the purpose of the case. If PW3 was present at the spot to witness the search and seizure as Crl.A. No.1419 of 2019 -:11:- alleged by the prosecution, he would have spoken with clarity all aspects of the prosecution case. It is clear from the extract of his deposition above that his version is confined only to transportation of the accused in the Jeep and recovery of two packets of Ganja from the bag carried by him and it is not in strict consonance with the versions of PWs 1 and 2. When the official witnesses and the independent witness relied on by the prosecution to establish its case tender inconsistent versions, the prosecution case can only be viewed with suspicion. The scope for doubting the prosecution case would be more when viewed in the light of the stand taken by the accused that he was falsely implicated after creating a drama of recovery of the contraband from him. 15. In the case on hand though the officials have deposed about various material aspects of the prosecution case in a categoric and corroborative manner, the prosecution failed to have a clear independent support to its case. PW3 was examined with a view to have independent support to the prosecution case. But, his version is totally inconsistent with the versions of PWs 1 Crl.A. No.1419 of 2019 -:12:- and 2 even on material aspects of the prosecution case. PW3 was not declared hostile by the prosecution. 16. Here is a case where independent evidence of PW3 was also relied on by the prosecution to support its case. But it did not serve the purpose intended rather it only created doubts about the veracity of the prosecution case. The trial court has relied on the evidence of PWs 1 to 3 to arrive at a finding of guilt of the accused for the offence under Section 20(b)(ii)(B) of the NDPS Act and consequently passed orders of conviction and sentence against him. 17. It is settled law that the versions tendered by the official witnesses if found creditworthy despite a deep and thorough scrutiny, it can form basis for finding guilt against the accused for the offences charged against him and faced trial by him. But, when independent version is also relied on by the prosecution as an evidence to strengthen its case and when it turned highly inconsistent with the evidence tendered by official witnesses even in material aspects of the case, prosecution is only to fail. When the independent evidence relied on by the prosecution did not support its case in its entirety, the Crl.A. No.1419 of 2019 -:13:- prosecution can only be taken as unsuccessful in proving it’s case beyond reasonable doubt. Criminal Appeal succeeds for the reasons and is allowed. The impugned judgment is set aside. The authorities of the Jail where the accused is serving his sentence shall see that he is set at liberty forthwith. Sd/- **MARY JOSEPH JUDGE** ttb