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2000 DIGILAW 659 (KER)

Siddique v. State of Kerala

2000-12-12

A.LEKSHMIKUTTY

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JUDGMENT A. Lekshmikutty, J. 1. This appeal is filed by the convict in Sessions Case No. 14 of 1998 on the file of the Court of the Special Judge (NDPS Act Cases), Vadakara. The appellant was found guilty under S.21 of the Narcotic Drugs and Psychotropic Substances Act (for short 'the NDPS Act') and convicted and sentenced to undergo rigorous imprisonment for 10 years and a fine of Rs. 1 lakh with a default sentence of three months simple imprisonment. 2. The allegation against the appellant is that he had possessed 7.5 grams of brown sugar. As per the prosecution, at about 6.10 P.M. on 21-3-1997, PW-2, the Sub Inspector of Police, Koduvally Police Station got an information that Thoomakkal @ Siddique was selling brown sugar by standing at the Koduvally Market Road. The information received was recorded in the G.D. and he informed the matter to the Circle Inspector of Police over phone. Thereafter, he along with the police party reached market road and a Constable who accompanied him pointed out the accused who was standing at the High School Junction. After complying with the formalities the person of the accused was searched in the presence of the witnesses and a packet wrapped with newspaper was found, which was concealed in him underwear. There were 10 small paper packets and on examination of the same it was found as brown sugar. Out of 10 packets, two packets were separately packed and sealed. Mahazar was prepared in the presence of witnesses. The appellant was arrested and Crime No.57 of 1997 under S.21 of the NDPS Act was registered against him. 3. The appellant denied the allegation levelled against him. The prosecution examined PWs. 1 to 3 and marked Exts. P1 to P8. mos. 1 to 4 were also marked. The lower court after appreciation of the evidence found the appellant guilty of the offence and convicted and sentenced him as stated above. Aggrieved by the said judgment, this appeal is filed through jail authorities. Advocate Sri Sunny Mathew was appointed as State Brief. Heard the learned counsel for the appellant and also the learned Public Prosecutor. 4. The point for consideration is whether the appellant had possessed brown sugar as alleged by the prosecution. The main argument advanced by the learned counsel for the appellant is that this case was falsely foisted against the appellant due to personal vendetta. Heard the learned counsel for the appellant and also the learned Public Prosecutor. 4. The point for consideration is whether the appellant had possessed brown sugar as alleged by the prosecution. The main argument advanced by the learned counsel for the appellant is that this case was falsely foisted against the appellant due to personal vendetta. According to the appellant, there was some dispute between the appellant and one jewellery shop owner and PW-2 insisted him to sign in an agreement which he refused. Thereafter, this case was falsely foisted against him. It is further submitted that the mandatory provisions of the NDPS Act was not complied with. Even as per the prosecution, a specific information has been received by the Sub Inspector of Police. Under S.42 of the NDPS Act, that Information has to be reduced into writing and the grounds of belief is to be recorded. A copy of the same is also to be sent forthwith to his official superior. That was not done in this case. So, for this sole reason, the appellant is entitled to an acquittal. It was further argued by him that there is no guarantee that the entire article is brown sugar. Out of the 10 packets, only two packets were sent for chemical analysis. The prosecution has no case that the contents of the entire packets were mixed up and out of the mixture, sample was taken. So it create suspicion about the prosecution case. PW-1 who is alleged to be an attestor to the seizure mahazar is a stock witness of the police. He is a hired witness and his evidence is unreliable. 5. It is submitted by the learned Public Prosecutor that the prosecution evidence shows that the appellant possessed brown sugar and it was recovered in the presence of independent witnesses. On chemical examination of the contraband article, it was found as brown sugar. PWl is an independent witness who was present at the time of search and seizure. The mere fact that he happened to be a witness in another case is not a ground to disbelieve him. The contention that the mandatory provision of the NDPS Act was not complied with is not correct. The search and seizure were conducted in the presence of independent witnesses and the accused was appraised of his right to be searched in the presence of a Gazetted Officer or Magistrate. The contention that the mandatory provision of the NDPS Act was not complied with is not correct. The search and seizure were conducted in the presence of independent witnesses and the accused was appraised of his right to be searched in the presence of a Gazetted Officer or Magistrate. There is no inordinate delay in sending the MOs for chemical analysis. So there is no chance of tampering the MOs. In these circumstances the appellant is not entitled to an acquittal. 6. The prosecution case shows that PW-2, the then Sub Inspector of Police, Koduvally Police Station got a phone message that Thoomakkal @ Siddique was selling brown sugar by standing near the Koduvally market junction. After recording in the G.D. a phone message was sent to the Circle Inspector of Police and he along with P.C. 5563 Abdul Rahiman and PC. 4303 proceeded to the scene of occurrence. P.C.5563 Abdul Rehiman had prior acquaintance with the accused. When they reached High School Junction the said PC 5563 pointed out the accused Thoomakkal @ Siddique to PW 2. The specific contention of the appellant is that S.42 of the NDPS Act was not complied with. As per S.42 of the NDPS Act, the information received is to be reduced into writing and copy thereof is to be sent forthwith to his immediate official superior. In the present case, the prosecution has not proved that the information which PW-2 received was reduced into writing and the copy of the same was sent to his immediate official superior. What PW-2 has stated is that a phone message was sent to C.I. of Police. Here in the instant case, specific information was received by PW 2, the then S.I. of Police. Unlike in other case, the name and details of the person was informed through phone. No evidence was adduced by the prosecution to prove the same. As submitted by the learned counsel for the appellant, in the present case, the prosecution has no case that the information was reduced into writing and the ground of belief was sent to his immediate superior. So, it has to be found that S.42 of the NDPS Act is not complied with. The non compliance of S.42 of the NDPS Act is fatal to the prosecution case. 7. Now I shall consider the evidence of the prosecution. So, it has to be found that S.42 of the NDPS Act is not complied with. The non compliance of S.42 of the NDPS Act is fatal to the prosecution case. 7. Now I shall consider the evidence of the prosecution. To prove the prosecution case, the prosecution relies on the evidence of PWs. 1 to 3. Out of the witnesses examined. PWs. 2 and 3 are police officials. PWl is an attestor to Ext. P1 seizure mahazar. He is stated to be an independent witness. The veracity of his evidence is challenged by the defence. It is true that PWl gave evidence that the search and seizure were conducted in his presence and he had put his signature in Ext. P1 seizure mahazar as well as in the MOs. He identified his signature in Ext. P1 and MOs. As per this witness the contraband article was recovered from the underwear of the accused. According to him, out of 10 small packets, one packet was separately packed and sealed for sample, whereas the evidence of PW 2 is that two packets were taken for sample. The evidence of the prosecution itself would shows that it was a junction and there were a number of shops at and near the place of occurrence. According to PW 1, the contraband article was weighed by PW 2, whereas, the case of the prosecution is that it was weighed by a goldsmith. There is material discrepancy with regard to sampling and weighment. It has come in evidence that he is an attestor in a case like this. His evidence further shows that he is a worker of the and narcotic drugs forum. This shows that he is interested in this type of cases. The presence of PW 1 at the place of occurrence is highly suspicious. There is material discrepancies also in his evidence. Hence, it is not proper to accept his evidence. PW 2 is the detecting officer. He gave evidence in accordance with the prosecution case. According to him, two packets were separately packed and weighed for sample. He admitted that the information received was not reduced into writing. According to PW 2, on getting information, he enquired with the police constables whether anybody had acquaintance with him and P.C.5563 told him that he was having acquaintance with the accused. 8. According to him, two packets were separately packed and weighed for sample. He admitted that the information received was not reduced into writing. According to PW 2, on getting information, he enquired with the police constables whether anybody had acquaintance with him and P.C.5563 told him that he was having acquaintance with the accused. 8. The defence has a case that it is a false case foisted against the appellant. But no evidence has been adduced by the defence to substantiate the same. PW 3 is the Circle Inspector who conducted the investigation and prepared the scene mahazar. He has no direct knowledge regarding the search and seizure of the contraband articles. I have already found that PW 1 is not a reliable witness. The contention of the defence is that there is inordinate delay in sending the MOs. before court. But this argument of the learned defence counsel cannot be accepted. Ext. P4 is the property list. The alleged incident was on 21-3-1997. Ext. P4 shows that the sample was sent to court on 22-3-1.997, i.e. on the next day. So, there is no delay as alleged by the defence. Apart from the unreliable evidence of PW.1 there is only the evidence of PW 2. Even though there were many shops at the place of incident junction none of the shop keepers has been cited and examined. This fact itself causes grave suspicion about the arrest and seizure. If such an incident had happened in such a place naturally, the shop keepers will see this. So, I am of the view that the evidence of PW-2 cannot be accepted. At any rate the mandatory provision of S.42 of the NDPS Act is not complied with. Therefore, the appellant is entitled to an acquittal. 9. In the result, the conviction and sentence passed against the appellant are set aside. He is acquitted and set at liberty if he is not required for any other case. The appeal is allowed.