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2004 DIGILAW 233 (KER)

Jaleel v. State of Kerala

2004-06-03

K.A.ABDUL GAFOOR

body2004
Judgment :- The appellant is convicted under section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and has been sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.5,000/- with default sentence of imprisonment for one year. It is contended before me by the counsel for the appellant that the conviction is unjustified as at the time of search of the appellant’s body, a magistrate or a gazetted officer was not present. It is further contended that the alleged Tahsildar PW1 was never present and even in his statement under 161, he had not stated to the Investigation Officer that sealing and sampling were done in his presence. The evidence given by Pw1 in that regard later in the court is subsequent additions. It is further submitted that there was no independent evidence in this case. The only independent witnesses are PW3 and PW4, who attested Ext.P1 mahazar, they turned hostile. Even PW3 admitting signature in Ext.P1 and P4 had also stated that he signed Ext.P1 in the police station. Therefore Ext.P1 mahazar itself is not proved. The further contention raised is that there is no due compliance of the procedure under Sec.55 of the Act, as no separate seal had been put in by the Station House Officer with his initials. Therefore, there is violation of the procedure regarding safeguard. In such circumstances, as the labels in the packets No.1 to 3 had been broken, it can easily be said that there was an attempt of tampering the samples and therefore the benefits arising there from shall be given to the accused. 2. It is contended by the Public Prosecutor that there was no violation of the provisions under Section 55 of the Act. PW1, the Tahsildar was only acting as a Magistrate of witness the search. He does not have the duty to say while making statement under Sec.161 as to whether sampling was done in his presence. The Detecting Officer and the Station House Officer had been one and the same. It has been sworn in by PW6 that he had already sealed the samples at the time of seizure. In such circumstances a further sealing shall not be required in the station. The Detecting Officer and the Station House Officer had been one and the same. It has been sworn in by PW6 that he had already sealed the samples at the time of seizure. In such circumstances a further sealing shall not be required in the station. Further sealing is required only when detecting officer and the station house officer are different and when there is entrustment of the articles seized to the Station House officer. It is further submitted that even PW1, the Tahsildar had submitted before court below that Ext.P1 had been signed by himself and the attesting witnesses. Therefore the evidence of PW3 that he did not sign the mahazar does not affect the prosecution case. Even PW4 had accepted the signature in Ext.P1 as of his own. When PW1 had admitted that he had signed it in the place of occurrence, the subsequent version by PW4 that he signed it in the police station is of no avail for the defence. So the contention of the appellant that there was no presence of a gazetted officer or a Magistrate cannot be accepted in the light of the evidence given by PW1. Even in his statement under Section 161 Cr.P.C. he had stated that body search of accused/appellant was done in his presence. That will be sufficient to complete the statutory formalities. Over and above, he had also deposed before the court below that PW5 had been sent over to him to his office by PW6 and he came to the spot. He witnessed the body search of the accused appellant and the sampling and that he had also put his signature in Ext.P1 mahazar. He had also identified Mos.1 to 3, the samples taken and the whole of the quantity of ganja. In such circumstances, presence of a gazetted officer, PW1, who himself is an Executive Magistrate is proved. 3. It is true that PW1 in his statement under Section 161 Cr.P.C. has not stated anything about the sampling and sealing. That is not required. The duty of PW1 on completion of the search of the body of the accused/appellant. Even then, when examined in the court below, he had spoken to the entire details including sampling and preparation of Ext.P1 mahazar. 4. PW6 is the station house officer. That is not required. The duty of PW1 on completion of the search of the body of the accused/appellant. Even then, when examined in the court below, he had spoken to the entire details including sampling and preparation of Ext.P1 mahazar. 4. PW6 is the station house officer. As spoken to by him, he obtained certain information secretly as to the sale of ganja by the appellant. He entered it in the diary and proceeded immediately and found the accused in suspicious circumstances. He was caught. The presence of PW1 was ensured, as was insisted by the appellant/accused in Ext.P6. There upon the search was conducted. The entire quantity of contraband seized was weighed using a balance in his possession. It was found 1100 gms. 25 gms each was separated as samples, packed differently as Mos.1 to 3, which had been identified by PW1 Tahsildar while in court. Signed seals were also inserted in the packets. After that he came to the station. He himself registered Ext.P7 FIR. In such circumstances a separate sealing is not required as he himself was the Station House Officer. There is no irregularity or non compliance of the provisions under Section 55 of the Act. 5. There is no illegality in relying on the evidence of official witnesses alone, if their version repose confidence in the court. PW1 cannot be stated to be a mere official witness. He had been summoned to the place to witness the search of the body of the appellant as insisted by him. He had spoken to that 1.1 Kg of ganja had been taken from the body of the accused/appellant. Therefore it has been proved that the accused/appellant had been in possession of 1.1 Kg of Ganja, which is more than the small quantity. It is true that PW3 and PW4 who attested the mahazar had turned hostile. PW3 even did not admit the signature in Ext.P1 as his own. But PW4 admitted the signature but gave a different version that he put the signature while in the police station. But in this regard the evidence of PW1, Tahsildar is to the effect that the witnesses had also signed Ext.P1 mahazar at the scene of occurrence itself. PW3 even did not admit the signature in Ext.P1 as his own. But PW4 admitted the signature but gave a different version that he put the signature while in the police station. But in this regard the evidence of PW1, Tahsildar is to the effect that the witnesses had also signed Ext.P1 mahazar at the scene of occurrence itself. When PW4 has admitted the signature in Ext.P1 mahazar and PW1 had stated that the witnesses had signed it at the place of occurrence, the version given by PW4 that it was in the police station cannot be accepted. 6. Therefore there is ample evidence in this case to fasten guilt on the appellant/accused. In the aforesaid circumstances, I feel no reason to interfere with the finding of guilt and conviction and consequent sentence passed by the court below. Appeal is dismissed.