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2002 DIGILAW 375 (KER)

Sam Swaminathakumar v. State of Kerala

2002-06-18

M.R.HARIHARAN NAIR

body2002
Judgment :- M.R.Hariharan Nair Before the II Additional Sessions Court, Trivandrum (Special Court for Trial of N.D.P.S. Act cases) the petitioner herein raised a contention that instead of the charge under Sections 21 and 22 of the N.D.P.S. Act framed against him, a charge under Section 27 alone can be framed and that after framing of such charge the case be made over to the chief Judicial Magistrate’s Court, Trivandrum for summary trial. The petitioner is aggrieved that the sad request was turned down as per the impugned order and it was found that the special court is competent to proceed with the case. 2. This has had a chequered career. The seizure in question took place on 10.10,1987. 4mgs. of Pethedine Hydrochloride ampulse, 3 Nitrazepam dormin-10 capsules, broken pieces of Pethedine ampoules, two injection syringes, 12 needles and one sterilizer were seized from the Medical shop by name ‘Gemini Medicals, Trivandrum’ owned by the accused. Four 50 mgs. pethedine Hydrochloride ampules and 3 Nitrazepam dormin-10 capsules were actually, in the pocket of the pants worn by the accused. After trial, the special court convicted the accused for the offence under Sections 21 and 22 of the N.D.P.S. Act and sentenced him to undergo R.I. for a period of 18 years and fine of Rs. 2 lakhs and in default by the accused thenconviction and sentence were set aside and the case remanded with direction to consider whether the aforesaid quantity would come within the definition of ‘small quantity’ as contemplated in Sec. 27 of the N.D.P.S. Act. The court found the question against the accused and fresh conviction for offence under Sections 21 and 22 of the Act ensued. The accused was also sentenced to undergo R.I. for 10 years and to pay a fine of Rs. 1 Lakh. The accused challenged that conviction through Crl.A No.329 of 1990 before this court. It was argued that since the detection of the offence was in 1987, which is prior to the amendment, the accused has a right to be tried before a Magistrate summarily as contemplated in Sec. 36 of the Act as it stood then. This court accepted the contention and found that only charge under Sec. 21 would lie. It was argued that since the detection of the offence was in 1987, which is prior to the amendment, the accused has a right to be tried before a Magistrate summarily as contemplated in Sec. 36 of the Act as it stood then. This court accepted the contention and found that only charge under Sec. 21 would lie. The matter was therefore remanded to the Judicial First Class Magistrate’s Court, Trivandrum for fresh trial and disposal and accordingly it was taken to file as S.T. 107 of 1991 and proceeded with. The accused raised a preliminary objection before that court that the Circle Inspector of Excise was incompetent to file a final report in the case. The learned Magistrate rejected the prayer, which was challenged before this court in Crl.R.P.No.317 of 1992. This court accepted the contention of the accused and passed an order of discharge. This court thereafter made the following observation: “It is made clear that the Circle Inspector of Excise can very well report the matter to the police and the police can conduct an investigation and file a report under Sec. 173 Cr.p.c.” In compliance with the said direction the police filed fresh charge sheet before the Special Court for trial of N.D.P.S. Act cases, Trivandrum and cognizance was again taken for the offence under Secs. 21 and 22 of the Act. The case was made over to the Additional Special Court for further trial when contention that charge should be filed under Sec. 27 and that the trial also should be before a Magistrate was repeated by the accused. In the impugned order passed after considering the said submission the special court found that at present only the special court is empowered to take cognizance and to try offender under the Act and under Sec. 36A of the Act all the offences under special enactments are triable only by Special Court. A denovo trial by the special Court was hence found justified. It is aggrieved by the said finding and the refusal to make over the case to the Chief Judicial Magistrate’s Court for trial that the revision is filed. 3. A denovo trial by the special Court was hence found justified. It is aggrieved by the said finding and the refusal to make over the case to the Chief Judicial Magistrate’s Court for trial that the revision is filed. 3. Shri.V.N. Achutha Kurup, who argued thencase of the revision petitoner, submitted that according to well accepted principles governing criminal trial the forum for trial has to be governed byn the law as it originally stood was the Magistrate of the First Class and the manner of trial as far as offence under Sec. 27 of the Act is concerned was summary trial. It was also contended that since this Court has already 27 of the N.D.P.S.Act vide Annexure C Judgment, all further proceedings initiated by the Special Court for trial of N.D.P.S. Act cases are without jurisdiction. Lastly it is submitted that the Exercise Inspector who detected the offence was not competent to make searches and seizure under the N.D.P.S. Act and for that reason the entire proceedings have to be stopped. 4. I have heard the learned Government Pleader, would also expressed the view that when there is a seizure effected by an incompetent officer there is no scope for further proceedings. 5. On a consideration of the contentions raised before me, I am of the view that the revision deserves to be allowed for more than on reason. First of all, the consequence of the discharge allowed by this court as per Annex. C judgment was based on a specific finding that the offence in question comes within the purview of Sec. 27 of the N.D.P.S. Act ; that the evidence adduced in the case through DWs 1 to 3 was sufficient to conclude that the quantity and that the accused was holding it for his own personal consumption. In view of the discharge allowed by this Court, there was no scope for any further continuance of the proceedings. But this Court left it open for the police to conduct further investigation under Sec.173 of the Cr.p.c. It is doubtful whether any such direction could have been legally given after entering a specific finding that the accused was liable to be discharged under Sec. 27 of the N.D.P.S.Act. 6. But this Court left it open for the police to conduct further investigation under Sec.173 of the Cr.p.c. It is doubtful whether any such direction could have been legally given after entering a specific finding that the accused was liable to be discharged under Sec. 27 of the N.D.P.S.Act. 6. That apart, here is a case where the detection was made by anExcise Inspector, who admittedly was not competent to make search and seizure with regard to the offence under the N.D.P.S. Act. There was no notification empowering Excise Inspecytors with powers under Secs. 41 and 42 as on 10-10-1987. Such notification came only on 18-2-1990 (vide SRO 1729 and 1730 of 1980 – G.O.(MS) Nos. 145 and 146 of 1990). The question of legality, validity and consequence of the seizure effected by an incompetent official came up for consideration of the Apex Court in State of Punjab v. Balbir Singh (A.I.R. 1994 S.C. 1872). In paragraph 14 of the judgment it was found, after surveying the case law on the point that if arrest or search contemplated in Secs. 41 and 42 was made by any officer not empowered or authorized, it would perse be illegal and would affect the prosecution case and consequently vitiate the trial. The said view has been followed in very many subsequent cases also. (eg. See Roy v. State (2001 (1) K.L.T. 86 (S.C.) In view of the said position, the illegality behind the seizure goes to the roof of the matter and a re-trial for the offence, even if it is ordered before the Magistrate, as prayed for before the Sessions Court, would not yield any result. That apart, the accused herein has already been discharged by this court from offence under Sec. 27 of the Act and there is a specific finding that the seizure in question goes beyond the purview of Secs. 21 and 22, but falls under Sec. 27 itself, for which the discharge is already ordered. 7. In the circumstances I am convinced that there is no scope or need for any further proceedings in S.C.No.34 of 1994 of the II Additional Sessions court, Trivandrum. Continuance of the proceeding in that case will constitute abuse of the process of court and entail wastage of time for all concerned. 7. In the circumstances I am convinced that there is no scope or need for any further proceedings in S.C.No.34 of 1994 of the II Additional Sessions court, Trivandrum. Continuance of the proceeding in that case will constitute abuse of the process of court and entail wastage of time for all concerned. In the circumstances I invoke the power under 482 of the Cr.p.c. and quash the charge and all further proceedings in the said case. It may be mentioned here that this is essential on the facts of this case in view of the direction of the Apex court contained in para 18 of the judgment in Roy’s case (supra). The revision is allowed as above.