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2002 DIGILAW 387 (KER)

Mohammed v. State of Kerala

2002-06-20

M.R.HARIHARAN NAIR

body2002
JUDGMENT M.R. Hariharan Nair, J. 1. The accused in S.C.No. 97 of 2000 of the Special Court for trial of N.D.P.S. Act cases, Vadakara, challenges the conviction against him for the offence under S.21 of the N.D.P.S. Act and the sentence of R.I. for 12 years and fine of Rs. 2 lakhs imposed thereof. 2. The prosecution case was that at about 8.15 p.m. on 20.1.2000 PW 2 Circle Inspector of Police, Kottakkal. got information that a person had reached with brown sugar intended for sale in front of the closed room on the ground floor of Canara Bank building at Shankuvatty; that after recording the information and reporting it to the Dy. S.P. he reached the spot at 8.35 p.m.; found the accused standing on the veranda of the closed room aforementioned; that after interception and after conveyance of the right under S.50 of the N.D.P.S. Act to him he was questioned about his option; that on the accused giving a negative reply, which was reduced to writing at the spot vide Ext. P.1, he conducted a body search on the person of the accused which revealed the availability of a plastic cover concealed inside the trousers worn by him and that when this was opened . it was found to be brown sugar. The weight was subsequently ascertained as 100 gms. (102.65 gms including the cover). 3. The Trial Court believed PWs. 1 and 2 and entered the conviction disbelieving the accused with regard to his version in the statement under S.313 of the Cr. P.C. that he was actually taken to custody on the previous day and that after he was taken to custody some others who had been detained in the police station were released. 4. During the arguments learned counsel for the appellant submitted that there was no proper identification of the accused in so far as neither PWl nor PW 2 specifically identified the person in the dock as the person from whom the seizure was effected as alleged in the charge. Yet another contention was the failure on the part of the prosecution to examine the goldsmith, who allegedly fixed the weight of the contraband. This, according to him, is of special significance in view of the fact that the colour of the contraband examined in the laboratory was brownish, whereas the witnesses stated it as yellowish. Yet another contention was the failure on the part of the prosecution to examine the goldsmith, who allegedly fixed the weight of the contraband. This, according to him, is of special significance in view of the fact that the colour of the contraband examined in the laboratory was brownish, whereas the witnesses stated it as yellowish. The further argument is that there was no proper opportunity which enabled the accused to adduce defence evidence in support of his version given under S.313 of the Cr. P.C. 5. On the arguments advanced in the case, the points that arise for decision are: 1. Whether there is sufficient evidence to show that the appellant was the person from whom allegedly the seizure was made? 2. Whether there was sufficient opportunity given to the accused to adduce defence evidence? and 3. Reliefs 6. Point No. 1. I have perused the evidence of PWs 1 and 2, who alone are the witnesses to the.seizure. PW 2 is actually the seizing official himself. However, neither of these witnesses has specifically identified the person in the dock in the Trial Court as the person from whom seizure was effected. Of course reference was made to the fact that the seizure was effected from the 'accused'. But then who was the particular person? Was he the person in the dock? On these aspects no sufficient light is seen in the depositions recorded. The depositions should either have included a specific endorsement by the Judge that the accused in the dock was identified by the witness or that the answer regarding identification was made pointing towards the accused in the dock or some other indication that the witness has identified the person available in the box as the perpetrator of the crime about which the witness is deposing before court. This is so because it is essential in a criminal trial, that the identity of the person who faces the trial as the perpetrator of the crime is established. For this to be achieved the witnesses to the transaction in question should specifically certify the identity of the person . in the dock as the person available at the scene of occurrence, if at all the prosecution case is that the presence of the accused at the scene of occurrence was witnessed by the particular witness. For this to be achieved the witnesses to the transaction in question should specifically certify the identity of the person . in the dock as the person available at the scene of occurrence, if at all the prosecution case is that the presence of the accused at the scene of occurrence was witnessed by the particular witness. This aspect was highlighted by this Court in some earlier judgments; but notwithstanding this even special courts which try cases involving very high punishment do not appear to give sufficient attention to this important aspect. The position is hereby reiterated for strict compliance by the subordinate courts. 7. Inspite of the finding that there was no correct identification of the accused, I do not think that the acquittal of the accused would be justified on the above technical ground because here is a case where the witnesses have proved the preparation of Ext. P1, which records the fact that the person who was apprehended by PW 2 was questioned under S.50 of the N.D.P.S. Act with regard to his option and that such person had given the answer in the negative under his signature. A comparison of the writing of the name and signature appearing in Ext P.1. with those in the statement of the present appellant given in court under S.313 of the Cr.P.C. does not given room for an doubt that the person who faced the trial was some one different from the person who gave the particular reply under section.50 of the N.D.P.S. Act, which is seen recorded in Ext. P1. When this aspect was pointed out to the learned counsel for the appellant, it was submitted that even execution of Ext. P1 was not admitted in his answers to question under S.313 of the Cr.P.C. In view of these circumstances I am of the view that it is better to given one more opportunity to get the accused properly identified. 8. Point No.2. I have perused the order sheet maintained by the Trial Court and it is seen that after the accused was questioned under S.313 of the Cr. P.C. on 1.7.2000 the case was adjourned for defence evidence to 4.7.2000. Thus, this is not a case where the trial Judge took up the case for consideration of the matter on the merits immediately after the accused was questioned. P.C. on 1.7.2000 the case was adjourned for defence evidence to 4.7.2000. Thus, this is not a case where the trial Judge took up the case for consideration of the matter on the merits immediately after the accused was questioned. All the same, the fact remains that the accused was not specifically informed of his right to cite defence witnesses. A Bench of this Court has held in Bhadran v. State of Kerala (1993 (2) KLT SN 13) that S.233 of the Cr. P.C. which provides that where the accused is not acquitted under S.232 he should be called upon to enter on his defence and adduce any evidence that he may have in support thereof is mandatory and that it must receive strict adherence. It was further held that the accused must be informed of his right by the trial Judge and an effective and meaningful opportunity to adduce evidence in his defence must be extended to him, when necessary, by giving reasonable adjournments. It was reiterated that even in rases where the accused is represented by counsel, the Court has a duty to inform the accused that he has a right to enter on his defence. In view of the said decision and also considering the submission that the appellant herein was actually represented by a counsel engaged on State Brief, who . probably did not know the need for adducing defence evidence especially in support of the stand taken under S.313 of the Cr. P.C. that he was taken to custody on the previous date and on the date mentioned in the seizure mahazar, I am of the view that it is just and proper to given one more opportunity to the accused to adduce defence evidence. 9. Point No. 3: In view of my findings as above, the conviction and sentence entered against the appellant are set aside and the matter is remitted to the Trial Court with the following directions: 1) Invoking power under S.311 of the Cr. P.C. PWs 1 and 2 should be recalled and an opportunity given to the prosecution to identify the accused in the case. 2. It will be open to the Trial Court to summon and examine the goldsmith invoking the same power as additional witness. 3. On conclusion of the additional evidence as above, the accused will be questioned again under S.313 of the Cr. 2. It will be open to the Trial Court to summon and examine the goldsmith invoking the same power as additional witness. 3. On conclusion of the additional evidence as above, the accused will be questioned again under S.313 of the Cr. P.C. and specifically informed of his right to enter defence as contemplated in the decision aforementioned and a posting given for the said purpose. After considering such defence evidence, if an adduced, and after fresh hearing, the learned special Judge will pass fresh judgment in the case. While doing so the Trial Court will be free to consider the application of the provisions in S.41 of the N.D.P.S. (Amendment) Act (Act 9 of 2001) Also The appeal is disposed of as above.