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2002 DIGILAW 341 (KER)

Babu v. The State of Kerala

2002-06-03

M.R.HARIHARAN NAIR

body2002
Judgment :- Based on the evidence of PWs.1 to 10, Exts.P1 to P18 and MOs 1 to 5 the Special Court for trial of N.D.P.S. Act cases, Thodupuzha convicted the appellant for the offence under Section 20(b)(i) of the N.D.P.S. Act and imposed the sentence of R.I. for two years and fine of Rs.25,000/- (in default R.I. for six months) therefore. 2. Smt.Saira Ravikumar, who represented the appellant on State Brief, submitted that the appellant has already suffered his term and gone out of the prison. The justifiability of the conviction has, neverthless, to be examined. In that regard she submitted that there is violation of Section 50 of the N.D.P.S. Act in so far as PW9, who was the detecting officer, did not specifically give the option of search before the Magistrate to the accused. It is also argued that the evidence available is insufficient to convict the appellant. 3. The points that arise for decision are: (1) Whether there is adequate evidence to show that the appellant is guilty of the offence? and (2) Whether there is justification for grant of an acquittal on the ground of violation of Section 50 of the N.D.P.S. Act? 4. Point No.1: PW9, who was the Sub Inspector of Kottayam West Police Station, deposed that at about 10.15 a.m. on 22.7.1999 he got information that a person with ganja was available to the east of Anaswara Theatre, Kottayam on the Palace road and that after informing the matter to his official superior through a written report he went over to the spot, apprehended the accused, who, on seeing the police party tried to escape and on subsequent interrogation was convinced that he was there for sale of ganja. Thereafter he asked the accused whether he wanted the presence of a Gazetted Officer for the proposed body search and since the accused wanted such search he sent for PW7, who was a Circle Inspector of Excise and as such a Gazetted Officer and in his presence conducted the search, which revaled the availability of a packet at the waist portion of the accused. On opening the packet it was found to be ganja, the total weight of which was 90 grams. He prepared two samples each of 25 grams. The rest of the ganja was sealed separately. On opening the packet it was found to be ganja, the total weight of which was 90 grams. He prepared two samples each of 25 grams. The rest of the ganja was sealed separately. The details of sampling and sealing of the items were incorporated in Ext.P1 seizure mahazar and got attested by witnesses. Thereafter the accused was taken to the police station and the matter proceeded with. 5. The above version is fully corroborated by PW7, who is the Gazetted Officer aforementioned. PW6, who was an independence witness cited to prove the occurrence admitted his signature in Ext.P1 seizure mahazar, but refused to speak about the details of the search. PW3, who is the goldsmith, spoke about weighing the ganja. PW4, who as a member of the police party accompanying PW9, has corroborated him in full. Hence there is reliable evidence to find that the accused was in fact found in possession of 90 grams of ganja. The report of the analyst marked as Ext.P5 also confirms that chemical analysis confirmed that above fact. In the circumstances it cannot be said that there is want of evidence to conclude that the accused was in possession of 90 grams of ganja as alleged. 6. Point No.2: It is true that PW9 did not specifically mention to the accused the prospect of the search being conducted in the presence of a Magistrate. Nor did he give the option to the accused to search in the presence of a Gazetted Officer or Magistrate. All the same, I do not think this fact is sufficient to give an acquittal to the accused. There is nothing to show that the accused was prejudiced in any way by having the search conducted in the presence of a Gazetted Officer. It is to be mentioned here that PW7 was not an officer of the police department. 7. All the same, I do not think this fact is sufficient to give an acquittal to the accused. There is nothing to show that the accused was prejudiced in any way by having the search conducted in the presence of a Gazetted Officer. It is to be mentioned here that PW7 was not an officer of the police department. 7. The decision in Marakkar v. State of Kerala (2001(3) K.L.T.539, which is a Bench decision of this Court and the decision of a three Judge Bench decision of this Court and the decision of a three Judge Bench of the Apex Court in Joseph Fernandez v. State of Goa (2000) 1 S.C.C. 707) are authorities for the proposition that informing the suspect of his right to be searched before one of the two officers i.e. Gazetted Officer or Magistrate, without mentioning the other, can be taken as substantial compliance with the requirements under Section 50 of the N.D.P.S. act and that in the absence of prejudice the accused cannot be granted an acquittal. In view of these decisions the appellant’s contention that he is entitled to get an acquittal cannot be sustained. In the circumstances the appeal is found to be without merit and it is dismissed.