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2001 DIGILAW 35 (MAD)

Ashraf v. State of Kerala

2001-01-10

M.R.HARIHARAN NAIR, NAIR

body2001
Judgment: The challenge in the appeal is with regard to the conviction entered against the appellant, who was the accused in S.C.No. 198 of 2000 of the, Special Court for the trial of the N.D.P.S. Act cases, Vadakara, for the offence under Sec. 20(b)(i) of the N.D.P.S. Act and the sentence of rigorous imprisonment for 18 months and fine of Rs. 10,000 (in default, simple imprisonment for 9 months) imposed therefor. 2. The prosecution case is that at about 3.10 p.m. on 23.9.1999, P.W.1, who was the Sub-Inspector of Koyilandy Police Station, in the course of his patrol, found the accused standing near the Koyilandy Girls High School Junction; that on seeing the police party, the accused tried to run away; that he was chased and apprehended and that the accused then revealed the contents of the bag held by him as ganja when it was opened on instructions from P.W.1, found acceptance by the trial Court as it was corroborated by P.W. 2, who is an independent witness, and also by the contents of Ex.P-1 seizure mahazar and Ex.P-12, F.I.R. 3. The appellant was represented by Advocate Sri.V.G. Gopu engaged on State brief. It is stated that the appellant is still undergoing imprisonment as directed in the judgment under appeal. 4. The learned counsel for the appellant submitted that the conviction is unsustainable for more than one reason. According to him, P.W.1, is incompetent to effect the search and seizure in so far as he was not the S.H.O. of the Station. It is also pointed out that there is violation of a mandatory provision viz., Sec. 50 of the N.D.P.S. Act. 5. On the arguments advanced in the case, the points that arise for decision are: (1) Whether the search was by a competent official? (2) Whether there is sufficient evidence to conclude that the accused was found in possession of 255 grams of ganja as alleged? (3) Whether there is violation of Sec. 50 of the N.D.P.S. Act entitling the accused to get an acquittal? (4) Reliefs and costs. 6. Point No.1: It is seen from the evidence of P.W.1 that as on the date of occurrence viz., 23.9.1999, he was the Sub-Inspector of Police, Koyilandy. (3) Whether there is violation of Sec. 50 of the N.D.P.S. Act entitling the accused to get an acquittal? (4) Reliefs and costs. 6. Point No.1: It is seen from the evidence of P.W.1 that as on the date of occurrence viz., 23.9.1999, he was the Sub-Inspector of Police, Koyilandy. The argument of the learned counsel for the appellant that in the absence of proof that he was S.H.O. of the Station he was incompetent to make the search is built upon the decision in Soumini v. State of Kerala, (2001)2 K.L.T. 546. The said decision has been overruled by a Bench of this Court in the decision in Sasi v. State of Kerala, (2001) 3 K.L.T. 396 . It was further found that all officers of the rank of Sub-Inspector of Police are competent to effect search and seizure under Sec.42 of the N.D.P.S. Act as far as this State is concerned. The defence contention based on Souminis case, (2001)2 K.L.T. 546 has therefore to fail. 7. Point No.2: P.W.1 has deposed that on seeing the police party led by him while near Girls High School Junction at about 3.10 p.m. on 23.9.1999, the accused, who was walking along the western side of the road, turned back and ran away. He was chased in the police jeep to some distance and could be apprehended when he fell down. Thereafter, he was questioned and asked about the contents of the bag held by him. The accused did not answer. He was then directed to open the bag and to reveal the contents. There was a black plastic packet inside the bag. On further directions from P.W.1, the said packet was also opened and it was found that there was dry ganja therein. P.W.1 thereafter wanted to make a body search to see whether any further contraband was concealed on his body. At that stage the accused was alerted about his right under Sec. 50 of the N.D.P.S. Act and his option asked for. On the negative answer given by the accused, his body was searched by P.W. 1 himself; but nothing was found concealed on his body. P.W. 1 also spoke about the procedural formalities followed by him in the matter of preparing the samples, seizure mahazar and the like. The above evidence of P.W. 1 is sufficiently corroborated by P.W.2, who is an independent witness. P.W. 1 also spoke about the procedural formalities followed by him in the matter of preparing the samples, seizure mahazar and the like. The above evidence of P.W. 1 is sufficiently corroborated by P.W.2, who is an independent witness. According to him, while he was going along with one Sasi towards Koyilandy, he saw that the accused had been kept under detention West of Balakrishna Mandiram and East of the Railway Station. When he went over to that spot, he saw the accused opening the bag held by him and revealing its contents pursuant to the directions from P.W. 1. The Sub-Inspector after verifying the contents, stated that it was ganja. P.W.2 also gave details of the procedural formalities followed by P.W. 1 in the matter of his asking for option of the accused regarding body search and of the negative answer given by the accused. He has also supported P.W.1 in the matter of evidence relating to preparation of samples and seizure mahazar etc. 8. The learned counsel for the appellant submits that the evidence of the two witnesses is unacceptable in view of the contradiction appearing between their versions in the matter of the time taken for completing the formalities. P.W.2 stated that it took more than half an hour for the steps to be completed, whereas P.W.1 stated that it took about 1 1/2 hours. I do not think that this discrepancy is sufficient to reject the evidence of these witnesses. It, is pertinent in this regard that even P.W.2 stated that he was available at the spot until P.W. 1 left the place on completion of the procedural formalities. The sampling, preparation of mahazar etc., is bound to take considerable time and P.W.2 may not be correct in his statement that the whole procedure was completed in half an hour. Whatever that be, with regard to the material aspects, there is no contradiction and the version of P.W. 1 is fully supported by the contents of contemporaneous document viz., Ex.P-1 seizure mahazar and Ex.P-2, F.I.R., both of which have reached the trial Court on the very next day of the occurrence. The finding of the trial Court that the accused was found in possession of 255 grams of the material which on examination by the expert was found to be genuine ganja as certified in Ex.P-7 report has therefore to stand. 9. The finding of the trial Court that the accused was found in possession of 255 grams of the material which on examination by the expert was found to be genuine ganja as certified in Ex.P-7 report has therefore to stand. 9. It is true that the accused was questioned about his option in the matter of search only after the contraband in question had already been revealed by the accused. The appellant has a contention that even before directing the bag to be opened, P.W.1 was duty bound to alert the accused of his right under Sec. 50 of the N.D.P.S. Act and to call for his option. There is no merit in this contention. Jayaraj v. State of Kerala, (2001)2 K.L.T. 936 is authority for the proposition that the requirements of Sec. 50 of the N.D.P.S. Act would come into play only when the search of a person is carried out and not in the case where it is seized from a bag held by him. In the present case, on being asked to open the bag, the accused himself opened the bag and revealed the, contents. No body search as such was involved in the process. After finding the contents of the bag, P.W. 1, thought it fit to make a body search as well and at that stage he followed the requirement of Sec. 50 of the N.D.P.S. Act. In the circumstances, I do not think that there is any procedural violation in the matter of the seizure effected in the case. 10.Point Nos.3 and 4: In view of my finding on the aforesaid points the conviction entered against the appellant is not liable to be interfered with. The quantum seized is not a small quantity. When the quantum is considered, the sentence imposed, namely, rigorous imprisonment for 18 months and fine of Rs. 10,000 also does not appear to be excessive. The appeal, in the circumstances, is found to be without merit and it is dismissed.