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2002 DIGILAW 463 (KER)

State of Kerala v. Latheef

2002-07-12

M.R.HARIHARAN NAIR

body2002
Judgment :- M.R. Hariharan Nair, J. The state has come up in appeal challenging the acquittal given to respondents 1 and 2 who were the accused in C.C. 99/1997 of the First Additional Sessions Court (special court for trial of N.D.P.S. Act cases, Ernakulam) in ewapect of the offence under Sec. 22 of the N.D.P.S. Act. 2. The prosecution alleged that pursuant to information received at about 9.30 a.m. on 9.8.1997 and after due compliance with sec. 42(2) of the N.D.P.S.Act, PW9-sub Inspectyor proceeded to the building mentioned in the information and found accused 1 and 2 who were man and wife as the sole occupants of the unnamed building. After due compliance with sec. 50 of the N.D.P.S. Act the building was searched and 301 ampules of tidigesic (buprenorphine) each of 2 milli litres capacity intended for injunction were seized from the building.(shed). 3. The reasons given by the trial court for granting acquittal to the accused are the following:- (1) Rather than PW8 who was the Circle Inspector of Excise brought to the scene as witness under sec.50 of the N.D.P.S. Act, PW9-Sub Inspector should have looked for some other officers of the same locality. (2) PW8 examined as witness to the search admitted that he had been a witness for a search in several cases detected by Mattancherry Police. He is hence a stock witness who deserves little credence. (3) Though under sec. 51 of the N.D.P.S. Act the provisions of Cr.P.C. have to be strictly followed in the matter of search, there is lapse in this regard in so far as no respectable person of the locality was cited as witness to prove the search and seizure. (4) The evidence of PW7 village officer is insufficient to establish that the building from where the seizure took place actually was possessed by the accused herein especially when the building had not been numbered by the local authority. (5) It was PW9 who completed the investigation of the case and there was legal infirmity in the detecting officer himself continuing investigation and filing charge sheet. 4. According to the learned Government Pleader, none of these are sufficient or proper reasons justifying acquittal of the accused. 5. Sri. (5) It was PW9 who completed the investigation of the case and there was legal infirmity in the detecting officer himself continuing investigation and filing charge sheet. 4. According to the learned Government Pleader, none of these are sufficient or proper reasons justifying acquittal of the accused. 5. Sri. C.P.Udayabhanu, who appeared for the respondents submitted that the court should be reluctant to upset the acquittal in the absence of compelling reasons and also that reasons given by the trial court are valid. 6. The points for decision thus are:- (i) Whether there is scope for upsetting the decision of the trial court, and (ii) Reliefs. 7. I shall first consider the limits of jurisdiction vested in this court in a case of the present nature. Dhanna v. State of M.P. (AIR 1996 SC 2478) provides that though the Code does not make any distinction between an appeal from acquittal and an appeal from conviction so far as powers of the appellate court are concerned, certain unwritten rules of adjudication have consistently been followed while dealing with appeals against acquittal. Even though the High Court has full power to review the evidence and to arrive at its own independent conclusions irrespective of whether the appeal is against conviction or acquittal, while dealing with an appeal against, the appellate court has to bear in mind: (i) That there is a general presumption in favour of the innocence of the person accused in criminal cases and that presumption is only strengthened by the acquittal. (ii) That every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial court acquitted him he would retain that benefit in the Appellate court also. (iii) The appellate Court in an appeal against acquittal has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, the order of acquittal is liable to be interfered with or disturbed 8. In K.Chinnaswamy Reddy v. State of Andhra Pradesh and another (AIR 1962 SC. 1788) it was held that the appellate jurisdiction in the matter of acquittal should be exercised only in exceptional cases, when there is some glaring defect in the procedure or there is manifest error on a point of law and consequently there has been flagrant miscarriage of justice. Sub-section (4) of sec. 1788) it was held that the appellate jurisdiction in the matter of acquittal should be exercised only in exceptional cases, when there is some glaring defect in the procedure or there is manifest error on a point of law and consequently there has been flagrant miscarriage of justice. Sub-section (4) of sec. 439 of the Cr.P.C. forbids a High Court from converting a finding of acquittal into the one of conviction and that makes it all more incumbent on the High Court to see that it does not convert a finding of acquittal into one of conviction through the indirect method of ordering retrial when it cannot itself directly convert a finding of acquittal into a finding of conviction. The court further proceeded to lay down the type of cases where interference by the Appellate Court in such matters would be justified. These are:- (i) Where the trial court had no jurisdiction to try the case, but still has acquitted the accused. (ii) Where the trial court has wrongly shut out evidence of the prosecution. (iii) Material evidence has been overlooked by the trial court. (iv) Where the court wrongly ruled out evidence which was admissible. 9. I shall approach the case in hand bearing in mind the legal principles aforementioned. As regards the incompetence of PW8 the learned trial Judge has proceeded as though Sec.50 was attracted to the said search in question. Actually it is not so. As far as search in buildings are concerned it is only sec. 42(1) that applies. The requirements with regard to option to have search conducted in the presence of a Gazetted officer or a Magistrate actually arises only under sec. 50 which applies to search of person as distinct from search of building. In the instant case no personal search is involved and the seizure was only from the building allegedly possessed by the accused. As such there is no question of compliance with sec. 50 and the trial court has proceeded on erroneous premises on that aspect. 10. With regard to incompetence of PW8, he being a person who was admittedly involved in several other cases detected by the Mattancherry Police also, I find no merit. It is like saying that the seizing official himself was involved himself in many cases and as such the detection is inadmissible. This is so because under sec. 10. With regard to incompetence of PW8, he being a person who was admittedly involved in several other cases detected by the Mattancherry Police also, I find no merit. It is like saying that the seizing official himself was involved himself in many cases and as such the detection is inadmissible. This is so because under sec. 50 of the N.D.P.S. Act personal search has to be conducted in the presence of either a Magistrate or a Gazetted Officer of one of the departments mentioned in Sec. 42 in case the accused so opts. The departments contemplated in Sec. 42 are very few and the and the Excise Departments mentioned in Sec. 42, the Police officers have to depend upon officers of such category and it goes without saying that one and the same Gazetted Officer of such department may have to be called in to witness searches in different cases. Hence the mere fact that PW8-Excise Circle Inspector was a witness in many other cases involving detection by the Mattancherry Police is not at all sufficient reason to discard his evidence. 11. The finding that PW9 being the detecting officer was in competent to continue the investigation and to lay charge and as he did the prosecution is vitiated, also is erroneous. A Bench of this court has specifically gone into the said aspect. In Kader v. State of Kerala (2001 KLT 407) it was held that merely because a detecting officer himself investigates the case and files final report before the Court, that would not vitiate the proceedings as far as offences under the N.D.P.S. Act are concerned. 12. The two other aspects that remain to be considered are with respect to the non compliance with the requirements of Sec. 51 and the want of evidence to prove possession of the building. As far as the former is concerned it is true that Pws 1 to 3 cited to prove the search turned hostile. As regards the search, Sec. 51 of the N.D.P.S. Act provides that the provisions of N.D.P.S. Act provides that the provisions of Cr.P.C. shall apply in so far as they are not inconsistent with the provisions of N.D.P.S. Act. As regards the search, Sec. 51 of the N.D.P.S. Act provides that the provisions of N.D.P.S. Act provides that the provisions of Cr.P.C. shall apply in so far as they are not inconsistent with the provisions of N.D.P.S. Act. It is Sec.100 of the Cr.P.C., before making a search, the officer or other person about to make the search has to call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, that is, to attend and witness the same and may issue an order in writing to them or any of them so to do. In the instant case PW9 has no case that he issued any such memo to anyone. No effort the evidence of PW5 to the effect that the 2nd accused is her daughter; that her name finds a place in PW5 ‘s ration card and both the accused have been staying with PW5 in another adjacent building. There is thus no reliable evidence with regard to the ownership and possession of the unnumbered shed from which the recovery was made by PW9. The accused atleast, is entitled to get the benefit of doubt in the matter. 14. Point No. 2:-In view of my findings with regard to the benefit in the matter of search and also as to want of evidence to establish aspect of possession of the building, the acquittal granted to the accused has to stand and in that perspective the appeal is without merit and it is accordingly dismissed.