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2001 DIGILAW 296 (KER)

Soumini v. State of Kerala

2001-06-14

A.LEKSHMIKUTTY

body2001
JUDGMENT A. Lekshmikutty, J. 1. Against the judgment in SC No. 32 of 1997 on the file of the Court of the First Additional Sessions Judge, Kozhikode, the appellant/accused filed this appeal. The appellant was charged under S.21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act"). He was found guilty and convicted and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. One lakh, in default of payment of fine to undergo rigorous imprisonment for one year more. 2. The prosecution case is that on 12.9.1996 at about 4.45 P.M., PW 1, the then Additional Sub Inspector of Police, Nadakkavu Police Station got reliable information that a lady wearing white doted sari and red blouse carrying brown sugar and proceeding from West Hill side to Beach road side. He informed the Woman Police Station to send a Woman Constable. The information which he received was informed to the Circle Inspector of Police and then obtained the written authorization from him. Thereafter, he proceeded to the scene with police party. When they reached West Hill near Hydrogenation factory junction, PW 1 saw the accused going through the southern side of the road with a blue plastic bag in her hand. On seeing the police party, the accused tried to walk speedily and tried to conceal the plastic bag. The police party stopped the vehicle and told her that they suspect contraband article in her possession and they want to search her body. Before search, she was informed that she is having a right to be searched before a Magistrate or a Gazetted Officer. But she replied that she does not want to be searched in the presence of any Gazetted Officer or Magistrate. So, PW 5, Ammukutty, H.C., Vanitha Police Station, Kozhikode conducted the search of the body of the accused in the presence of witnesses and recovered the plastic bag from her. On verification of the same, 149 small packets were seen in the plastic bag. On examination of the packets, it was found as brown sugar. The accused was arrested and the contraband article was seized in the presence of the witnesses. On weighment of the packets, it was found as 25 gms. The recovered article was packed and sealed and the signature of the accused as well as the witnesses were obtained on the packets. The accused was arrested and the contraband article was seized in the presence of the witnesses. On weighment of the packets, it was found as 25 gms. The recovered article was packed and sealed and the signature of the accused as well as the witnesses were obtained on the packets. MO 1 is the brown paper used for packing the packets. The brown sugar received after analysis is MO 1(a) series. MO 2 is the Mathrubhumi paper covered by the brown paper. MO 3 is the plastic cover. Ext. P1 is the seizure mahazar prepared by PW 1, the Additional Sub Inspector of Police. Ext. P2 is the First Information statement and Ext. P3 is the FIR registered on the basis of Ext P2. After complying with the formalities, charge was framed against the accused for the offence punishable under S.21 of the NDPS Act. The same was read over and explained to the accused to which she pleaded not guilty. To prove the prosecution case, the prosecution examined PWs. 1 to 8 and marked Exts. P1 to P11. MOs. 1 to 3 were also marked. On the side of the defence, no oral evidence was adduced, but Ext. D1 was marked. The court below after evaluation of the evidence found the appellant guilty of the offence and convicted and sentenced to undergo rigorous imprisonment for 10 years and also to pay a fine of Rs. 1,00,000/-. In default of payment of fine to undergo rigorous imprisonment for another one year. Against the said judgment of the lower court, this appeal is filed by the convict. 3. Heard both sides. 4. The point for consideration is whether there is any reasonable ground to interfere with the judgment passed by the lower court. The allegation against the appellant is that she had possessed 25 gms. of brown sugar in 149 small packets and the same was recovered by PW 5 as per the direction of PW 1. The accused was found by the southern side of the road near Hydrogenation factory junction near Bangladesh Colony within the jurisdiction of Nadakkavu Police Station. The said allegation is denied by the appellant. 5. Learned counsel for the appellant submitted that the appellant is innocent and she has not committed any offence. Apart from the interested testimony of the official witness, there is no independent evidence to prove the allegations. PWs. The said allegation is denied by the appellant. 5. Learned counsel for the appellant submitted that the appellant is innocent and she has not committed any offence. Apart from the interested testimony of the official witness, there is no independent evidence to prove the allegations. PWs. 1 and 5 are the detecting officers whose evidence cannot be accepted without corroboration. The only independent witness examined to prove the search and seizure did not support the prosecution case. The search and seizure of the contraband article is not properly proved. It is further submitted by the learned counsel that the contraband article which was alleged to be seized by PWs. 1 and 5 were not property packed and sealed. There is no mention of any specimen seal of MOs. 1 series. The mandatory provisions of the NDPS Act were not compiled with and the search and seizure are vitiated by infirmities and illegality. The information which was allegedly received by PW 1 was not reduced into writing. If actually any such information was received, it has to be reduced into writing and reported to the official superior. There is absolutely no evidence to show that information was reduced into writing and it was informed to his official superior. No report was sent to his superior officer. In the absence of any reliable evidence, the lower court ought to have acquitted the appellant. The appellant has nothing to do with the alleged offence. Actually, the accused was taken to the police station along with one Bichathu who had involved in so many narcotic cases. At the instance of the said Bichathu, a false case has been foisted against the accused. It is submitted by the learned Public Prosecutor that the evidence adduced by the prosecution is sufficient enough to prove the guilt of the accused. The search and seizure of MO2 series are proved through the evidence of PWs. 1, 5 and 6. There is nothing to disbelieve the version given by PWs. 1 and 5. Ext. P2 is the F. I. statement of PW. 1 the seizure mahazar as well as the F. I. statement would clearly show that before search and seizure of the contraband article, the mandatory provisions of the NDPS Act has been complied with. The oral evidence of PWs. 1 and 5. Ext. P2 is the F. I. statement of PW. 1 the seizure mahazar as well as the F. I. statement would clearly show that before search and seizure of the contraband article, the mandatory provisions of the NDPS Act has been complied with. The oral evidence of PWs. 1 and 5 would clearly show that before search of the body by PW 5 the accused was informed about her right to be searched in the presence of any Gazetted Officer or a Magistrate. Since she replied that she did not want search in the presence of any Gazetted officer or Magistrate, PW 5, the woman Head Constable conducted the search of the body of the accused in the presence of independent witnesses and recovered a blue plastic cover which contained 149 small packets and on further examination it was found as brown sugar. This version of PW 5 is corroborated by the evidence of PW 1. Even if PW 6 did not fully support the prosecution case, it can be seen that he was present at the scene and he is an attestor to Ext. P2. He has affixed his signature in MOs. 1 and 2. So, the contention of the learned counsel for the appellant that the mandatory provisions of the NDPS Act has not been complied with cannot be accepted. There is nothing to interfere with the conviction and sentence passed by the court below. 6. The evidence of PW 1 shows that on 12.9.1996 at about 4 P.M. he got reliable information that a lady wearing doted white sari and red blouse was carrying brown sugar and proceeding from West Hill side to Beach road. According to him he informed the matter to the Circle Inspector of Police and obtained the authorisation from him. He proceeded to the scene with police party including a Woman Head Constable. When they reached the West Hill near the Hydrogenation factory, they saw the accused proceeding towards south with a blue plastic bag in her hand. She was intercepted and questioned. Search was conducted by PW 5 the Woman Head Constable. As per the prosecution, before search and seizure of the contraband article, the appellant was appraised of her right to be searched in the presence of a Gazetted Officer or Magistrate. She was intercepted and questioned. Search was conducted by PW 5 the Woman Head Constable. As per the prosecution, before search and seizure of the contraband article, the appellant was appraised of her right to be searched in the presence of a Gazetted Officer or Magistrate. But there is nothing on evidence to show that the information which PW 1 received was reduced in writing and a report has been sent to his immediate official superior. It is contended by the defence that the search and seizure of the contraband articles were not proved. PW 6, the only independent witness, did not support the prosecution case. As per S.42 of the NDPS Act, the information received is to be reduced into writing. Here, in the instant case, a detailed description of the person who possessed brown sugar was received by PW 1, the Detecting Officer. But during examination, he has no case that it was reduced into writing and informed his official superior. If it be so, it is against the provisions contained in S.42 of the NDPS Act. Admittedly, PW 1 was Additional S. I. of Nadakkavu Police Station on the date of incident. The prosecution has no case that he was the Station House Officer at the relevant time. So as per S.41, PW 1 is neither empowered officer nor an authorised officer. It is true that there is a Government Notification G. O. (MS) 146/90/TD dated 22.10.1990 whereby the Government of Kerala had empowered all the officers in the Police Department of and above the rank of S. I. of Police and all officers in the Excise Department of and above the rank of Excise Inspector to exercise the power and to perform the duties specified in S.42 of the NDPS Act within the area of their respective jurisdiction. But the notification has not been incorporated as Rule. As per R.78(3), the same has to be placed before Legislature. Nothing has been brought to my notice to show that the notification has been placed before the Legislature and it has become a Rule. Hence it is to be found that PW 1 is neither an authorised officer nor an empowered officer to detect the offence. 7. PW 6, the independent witness never stated that he witnessed the search and seizure of the contraband articles from the possession of the accused. Hence it is to be found that PW 1 is neither an authorised officer nor an empowered officer to detect the offence. 7. PW 6, the independent witness never stated that he witnessed the search and seizure of the contraband articles from the possession of the accused. What he has stated is that he saw some packets in the possession of PW 1. The prosecution has no case that the copy of the mahazar or any document was furnished to the appellant. On the other hand, PW 5 categorically admitted that no such document was given to the accused. During cross examination, PW 1 admitted that he did not furnish any report to his official superior. At the time of recording his 161 Cr. PC statement also, nothing has been stated by him before the Investigating Officer. The same version was given by PW 5 who allegedly searched the body of the accused. The presence of PW 5 is highly suspicious. There is nothing on record to show that she was present at the spot except their evidence during examination. PW 6 never stated either in Chief examination or in cross examination that before search of the body of the appellant either PW 1 or PW 5 informed the appellant regarding her right to be searched in the presence of a Gazetted Officer or a Magistrate. He had denied the signature seen in Ext. P1 and MOs. 1 series and 2. But according to him, he had put his signature in one paper, but denied the signature seen in Exts. P1 and MOs. 1 and 2. As submitted by the learned counsel for the appellant, apart from the interested testimony of PWs. 1 and 5, there is nothing to show that before search and seizure of the article, S.50 of the NDPS Act has been complied with. As per the decision reported in Koluttumottil Razak v. State of Kerala ( 2000 (4) SCC 465 ) if compliance with S.42 and 50 are not established, conviction under S.21 of the NDPS Act cannot be sustained. As per the said ruling, the reliable information which the officer received is to be reduced in writing and the right of the accused to be searched in the presence of a Magistrate or a Gazetted Officer is to be appraised to the accused. As per the said ruling, the reliable information which the officer received is to be reduced in writing and the right of the accused to be searched in the presence of a Magistrate or a Gazetted Officer is to be appraised to the accused. Non compliance with the requirements of S.42 would render the resultant search and seizure suspect, though that by itself may not vitiate the proceedings. Therefore, it is found that the prosecution has not complied with S.42 and 50 of the Act which are mandatory in nature. The other witnesses examined in this case are either formal witnesses or official witnesses. They have no direct knowledge regarding the incident. On a perusal of the entire evidence, I find that the evidence adduced by the prosecution is not sufficient to enter into a conviction. The prosecution has not succeeded in proving the guilt of the accused beyond reasonable doubt. 8. In these circumstances, I am constrained to set aside the conviction and sentence passed against the appellant and the appellant is acquitted. She is set at liberty if she is not required in any other case. The Criminal Appeal is allowed.