State of Kerala v. Niyas — 1999 DIGILAW 358 (KER)

JUDGMENT T.M. Hassan Pillai, J. 1. Feeling aggrieved, State has come up in appeal challenging the judgment and order of acquittal passed by the II Addl. Sessions' Judge, Ernakulam who tried the accused respondent for the offences punishable under S.8(c) read with S.21 of the Narcotic Drugs and Psychotropic Substances Act (for short 'the NDPS' Act) in C. C. No. 49/93. The acquittal was based on a clear finding recorded by the Trial Court to the effect that PW 5, the Searching Officer had not intimated accused respondent about the existence of right to be searched in the presence of a gazetted officer or a magistrate before search of the person of him was made. 2. The gravamen of the charge levelled against the accused respondent in the challan laid by PW 4 who verified the investigation conducted was that he was in unlawful possession of 200 gms. of brown sugar in contravention of the provisions of the NDPS Act or any rule or order made or conditions of licence granted thereunder. 3. The prosecution story as emerged from the evidence can be stated as follows: On getting reliable information by P.W. 5 over phone who was the then D.I. of Police, Mattancherry at about 1.15 pm. on 15-6-93 about selling of contraband brown sugar by a young man from the place described as scene spot in Ext. P1 mahazar, PW 5 after preparing and submitting a report to that effect to the Assistant Commissioner of Police rushed to the scene spot along with the police party as directed by the Assistant Commissioner of Police to verify the truth of the information. On seeing the police party accused respondent tried to escape and his bid was foiled by the police party. He was stopped by the police party and questioned by PW 5. Suspicion arose on account of accused respondent's conduct and person of him was searched by PW 5. MO 4 match box held by the accused respondent in his right hand contained two packets of contraband (MOs. 2 and 3) weighing 100 gms. each (M.O. 2 packet was wrapped in brown paper and MO. 3 contraband was wrapped in white oil paper). Contraband was seized by PW 5. Accused respondent was arrested and seized contraband was properly packed sealed in the presence of witnesses. 2 and 3) weighing 100 gms. each (M.O. 2 packet was wrapped in brown paper and MO. 3 contraband was wrapped in white oil paper). Contraband was seized by PW 5. Accused respondent was arrested and seized contraband was properly packed sealed in the presence of witnesses. Accused respondent was taken to the police station and a case was registered by PW 5 as Crime No. 171/93 of Mattancherry Police Station. Ext. P7 is the FIR lodged. 4. When called upon to answer the charge levelled against him the accused respondent abjured his guilt and claimed to be tried. 5. With a view to connect the respondent accused with the crime alleged ' prosecution examined before Trial Court PWs. 1 to 5 and produced MOs. 1 to 6. Prosecution also exhibited Exts. P1 to P9. PW 2 was a formal witness. 6. Questioning the correctness of the impugned judgment and order of acquittal, learned Public Prosecutor submitted that though Exts. P1 and P7 which are contemporaneous records or other documentary evidence produced by the prosecution do not disclose compliance of requirement of informing the respondent about his right under S.50(1) of the NDPS Act to be searched in the presence of a gazetted officer or magistrate, PWs. 3 and 5, who are police officials, in no uncertain terms testified the fact of compliance of S.50 of the NDPS Act and as their evidence passed the test of reliability and is creditworthy the Trial Court is not justified in overlooking or ignoring or discarding their evidence on flippant and flimsy grounds and the reasoning for sidestepping their credit worthy evidence is faulty, palpably erroneous and patently unsound. She argued that there is no inflexible rule of law that evidence of police officials has to be discarded or that it suffers from some inherent infirmity. Prudence only requires that the evidence of the police officials, who are interested in the outcome of the result of the case, needs to be carefully scrutinised and independently appreciated. She argued that nothing substantial was brought out by the cross examiner in the lengthy cross examination to create any doubt about their veracity or to make a dent in their evidence to shake the credibility. She argued that nothing substantial was brought out by the cross examiner in the lengthy cross examination to create any doubt about their veracity or to make a dent in their evidence to shake the credibility. Public Prosecutor vehemently contended that the unmerited acquittal of the accused respondent, who was charge sheeted for a grave offence resulted in gross miscarriage of justice and the finding of the learned trial Judge is wholly unjustified and totally against the weight of evidence. 7. So the question that requires to be considered to this appeal is whether search of person of accused respondent was conducted without conforming to the provisions of the NDPS Act and if so whether the search conducted rendered the contraband recovered suspect? 8. Before proceeding to deal with the evidence led by the prosecution in support of its case to find out whether any error was committed by the Trial Court in acquitting the accused respondent it is to be stated that this court will be justified in interfering with the order of acquittal only if the approach of the Trial Court in acquitting the accused respondent is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom. Merely on the ground that two views are reasonably possible on the basis of evidence on record the appellate court cannot substitute its view in the place of that of Trial Court. The fact that a view other than the one taken by the Trial Court can be legitimately arrived at by the appellate court on reexamination of the evidence cannot by itself constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the Trial Court in dealing with the evidence was patently illegal or the conclusion arrived at by it were wholly untenable. The powers of the appellate court in interfering with the order of acquittal in appeal are well settled and the Apex Court in Ramji Surjya Padvi v. State of Maharashtra (1983 SCC (Cri) 748) laid down that while there is no doubt that the jurisdiction of an appellate court is coextensive with that of the Trial Court, in the case of an appeal against a judgment of acquittal it cannot totally brush aside the appreciation of the evidence by the Trial Court. The reasons for reversing a judgment of acquittal should be cogent and if two views are reasonably possible, the appellate court should be slow in interfering with the judgment of the Trial Court, even if it is possible for it to take a different view after a process of laborious reasoning. 9. Before re-evaluating and re-appreciating the evidence led by the prosecution I have to keep in view the observation made by the Apex Court recently in Pon Adithan v. Deputy Director, Narcotic Control Bureau, Madras (JT 1999 (4) SC 540) that it is not laid down in T. P. Razak v. State of Kerala (1995 Supp. (4) SCC 256) as a preposition of law that in the absence of independent evidence or any other supporting documentary evidence oral evidence of a witness conducting the search cannot be regarded as sufficient for establishing compliance with the requirement of S.50(1). Apex Court after carefully scrutinising the evidence of PW 1 who had searched and arrested the appellant involved in that appeal held that her evidence can be safely relied upon as it does not suffer from any infirmity nor is there any good reason for not accepting the same, notwithstanding the fact that PW 1 had not prepared any contemporaneous writing on the basis of which it can be said that she had informed the appellant about his right under S.50(1). Settled position of law is that it is imperative for an empowered officer or duly authorised officer or duly authorised officer acting on prior information when he is about to search a person to inform the concerned person of his right under sub-s.(1) of S.50 of the NDPS Act of being taken to the nearest gazetted officer or the nearest magistrate for making the search and such information may not necessarily be in writing. 10. Legal position is also well settled that no infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. 10. Legal position is also well settled that no infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them (See Tihar v. State (Delhi), 1986 SC (Crl.) 515). 11. Now, let me consider the contention of learned Public Prosecutor solely basing on the impeccability of the evidence given by PWs. 3 and 5 on the point of compliance of S.50(1) of the NDPS Act. The legal position is well settled that in an appeal against acquittal this court should attach greater weight to appreciation of evidence by the trial judge who had occasion to watch the demeanour of the witnesses. Learned Public Prosecutor is fair enough to submit that Ext. P1 or Ext. P7 or other documentary evidence relied on by the prosecution had not reflected the factum of compliance of S.50(1) of the NDPS Act. However, the fact that the empowered officer or duly authorised officer who is about to search a person need not in writing inform the suspect about the existence of his right to be searched in the presence of a gazetted officer or a magistrate (it is imperative for him to inform the concerned person of his right under S.50(1) of the Act of being taken to the nearest gazetted officer or magistrate for making the search) is not a ground to exclude completely from consideration the fact of conspicuous absence in Exts. P1 or P7 or the other documentary evidence produced by the prosecution about the compliance of S50(1) if it is not safe to rely upon the evidence of PWs 3 and 5. First hand account (I may even venture to describe it as a graphic account) of what transpired before, at or after the search of the person of the respondent was given in Ext. P1 and P7 and it is clear from the materials on record that Exts. P1 and P7 were not manufactured and are contemporaneous records. First hand account (I may even venture to describe it as a graphic account) of what transpired before, at or after the search of the person of the respondent was given in Ext. P1 and P7 and it is clear from the materials on record that Exts. P1 and P7 were not manufactured and are contemporaneous records. PW 1, who is examined as an independent witness and in whose presence the search of the person of respondent was made by PW 5 has not testified the fact of PW 5 conveying any information to the respondent about the existence of extremely valuable right under S.50(1) which the Legislature has given to him having regard to the grave consequences that may entail possession of illicit articles under the NDPS Act. The Trial Court highly not placed any reliance on the evidence given by PW 3 who was the then Principal Sub Inspector of Police, Mattancherry (it cannot be disputed on the basis of the evidence available that he was present along with PW 5 at the time of searching the person of the respondent) on the aspect of compliance of S.50(1) of the NDPS Act and his evidence is to be discredited and discarded on the ground that in his police statement he has not disclosed that PW 5 told accused respondent that he is going to search the person of him and his (PW's) asking respondent whether presence of any other gazetted officer is required by him for conducting the search of his person. It is a material omission affecting the credibility of his evidence on that aspect. Accepted canon adopted by courts in evaluating and appreciating the evidence persuades me to agree with the Trial Court that evidence given by PW 5 about his telling the respondent that his person is to be searched and he (PW 5) is a gazetted officer and his asking respondent whether he (respondent) is to be taken to the presence of another gazetted officer is unreliable and unacceptable and if, as a matter of fact PW 5 has asked the respondent whether he is to be taken to the presence of another gazetted officer that fact would have certainly found a place in Ext. P1 or P7. No explanation is forthcoming from him as to why that fact was omitted to be mentioned by him in Exts. P1 or P7. 12. P1 or P7. No explanation is forthcoming from him as to why that fact was omitted to be mentioned by him in Exts. P1 or P7. 12. The evidence given by PWs. 3 and 5 was not found reliable and creditworthy by the Trial Court for accepting the case of the prosecution regarding compliance of S.50(1) of the NDPS Act and the reasonable view of the evidence taken by the Trial Court is not liable to be upturned. 13. From the evidence of P Ws. 3 and 5 it is clearly established that search of the person of the respondent was made by PW 5 acting on a prior information regarding possession of contraband by him and it is also crystal clear from the evidence on record that contraband was recovered from the respondent. Search conducted and seizure made were illegal. Apex Court in Ali Mustaff Abdul Rahiman Moosa v. State of Kerala (JT 1994 (6) SC 326) held that "a contraband seized as a result of illegal search or seizure, cannot be used to fasten that liability of unlawful possession of contraband on the person from whom the contraband had allegedly been seized in an illegal manner". Apex Court further held that "unlawful possession" of the contraband is the sine - qua - non for conviction under the NDPS Act and that factor has to be established by the prosecution beyond a reasonable doubt. Apex Court further observed that "indeed seized contraband is evidence but in the absence of proof of possession of same, an accused cannot be held guilty under the NDPS Act". Prosecution failed miserably to prove compliance of S.50(1) of the NDPS Act and as contraband was recovered from the respondent during a search conducted in violation of the provisions of S.50 of the NDPS Act the recovery of illicit article rendered suspect. No conviction can be entered into on the basis of such a recovery. The upshot of the above discussion of the evidence is that the Trial Court rightly acquitted the accused on the basis of its finding that contraband was recovered in violation of the provisions of S.50 of the NDPS Act. No ground is made out to interfere with the well merited acquittal of the accused respondent and the appeal is hence dismissed.