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2004 DIGILAW 239 (KER)

Euler Waldemar v. The State of Kerala

2004-06-04

K.A.ABDUL GAFOOR

body2004
Judgment :- The accused who is faced with conviction under Section 20 (b)(ii) of the NDPS Act, 1985 has come up with this appeal. He has been sentenced to undergo rigorous imprisonment for 15 years and to pay fine of Rs.1 lakh. According to the court below he has been in possession of 2.20 Kg of Hashish as seized by PW4, upon Ext.P1 Mahazar which was duly proved through PW2, an eye witnesses. 2. The prosecution case was that PW4 the Sub Inspector of Police, Kovalam Police State obtained reliable information that a foreign national was engaged in sale of drugs, residing in a house named ‘Sudhi’ in Avaduthura. There upon he reduced the information he received in writing and sent a report Ext.P3 to his superior officer, PW6 and proceeded to the spot and apprehended the accused. The accused voluntarily took out from a refrigerator kept in the house the contraband in this case, in ten packets. It was seized in the presence of PW1 an independent witness. He was arrested and the case was registered. PW6 the Circle Inspector of police who had been brought to the spot for the purpose of searching the body of the accused as he insisted presence of gazetted officer, later took up the investigation of the case and filed the final report. 3. Considering the contentions and evidence on record, the trial court found that the prosecution was successful to bring guilt home on the accused and that he had committed the offence punishable under Section 20(b)(ii) of the Act. Accordingly he was sentenced as aforesaid. 4. The occurrence was on 12.2.1999. The court below convicted the accused on 17.5.2001. Therefore the case is covered by the provisions as stood before the amendment of the Act by Act 9 of 2001. 5. The accused/appellant contends that he had not been in the possession of the house in question. PW1 had an axe to grind against him as there was a dispute regarding partnership of a restaurant conducted by both of them, that PW4 had not been empowered to detect a case like this as he was only a Sub Inspector on probation, that there was violation of the provisions contained in Section 42(2), 52, 55 and 57 of the said Act and also Sec.58 of the Criminal Procedure Code. The articles said to be seized as per Ext.P1 mahazar were not fully available. When it was sent for examination, certain items were missing. 6. It is submitted by the Public Prosecutor that even a probationary Sub Inspector is a Sub Inspector and the notification issued by the Government of Kerala in G.O.(MS)No.146/90/TD dated 22.10.1990 empowered PW4 to conduct raid, seizure and register a crime under the said Act. Ext.P3 report has been sent by PW4 to PW6, the immediate superior then and there. Therefore, there was no violation of Section 42(2) of the Act. The reasons for arrest is already mentioned in Ext.P1 itself. Therefore there was no need for a separate arrest memo as required under Sec. 52. All the items seized as per Ext.P1 had been duly sealed in accordance with the procedure prescribed and therefore there was no violation of Sec.55. As PW6, his immediate superior was present at the time of seizure and arrest, there was substantial compliance of Sec.57. PW4 has deposed that he had sent necessary intimation to the RDO. Therefore there was no violation of Section 58 of the Cr.P.C. PW5, the chemical analyst revealed that the seals in the MOs concerned were intact. Therefore it cannot be taken that anything was missing from the packet sealed at the time of seizure, as per Ext.P1. Entire articles had been voluntarily given by the accused to the police. Therefore there is no violation in that regard. In this case the sample seal had been taken and forwarded to the court and it has come out in evidence as well. Therefore the contentions of the appellant are not sustainable to invite interference in the impugned conviction, the public prosecutor submits. 7. Ext.P6 report prepared by PW5, the chemical analyst, after examination of Mos.1 to 10, clearly shows that several tests were conducted and all these tests found positive. Microscopic examination also revealed that it was hashish. Therefore it has been proved that Mos.1 to 10 packets contained hashish. 8. The accused is admittedly a French National. He had been in Kovalam since long. According to him he was doing business in precious stones. The building belongs to PW2. PW2 had categorically stated that it had been let out to the accused at the material time. The register as to the stay of foreign national, as contained in Exts.P12 and P13 had been maintained. He had been in Kovalam since long. According to him he was doing business in precious stones. The building belongs to PW2. PW2 had categorically stated that it had been let out to the accused at the material time. The register as to the stay of foreign national, as contained in Exts.P12 and P13 had been maintained. Thus it is clear that the accused had been in occupation of the house named ‘Sudhi’ owned by PW2, as let out to the accused. 9. A Division Bench of this court in the decision reported in Sasi v. State of Kerala (2001 (3) KLT 396) has held that every Sub Inspector in the service of the Kerala State Police has been duly empowered by issuing notification already referred to above under Section 42(i) and 67 of the NDPS Act. Of course PW4 had deposed before the court below that he was on probation when he registered the FIR in this case. Rule 2(i) of the Kerala State and Subordinate Service Rules, 1958 makes it clear that; “a person is said to be appointed to a service, when in accordance with these rules or in accordance with the rules applicable at that time, as the case may be, he discharges for the first time the duties of a post borne on the cadre of such service or commences the probation, instruction or training prescribed for members there of.” Therefore, even for commencement of probation one has to be substantially appointed. A person on probation on his appointment to the post of Sub Inspector of police is a member of service duly appointed. Consequently he is covered by the said notification and is accordingly an officer empowered in terms of Section 42(1) of the Act. So it cannot be contended that PW4 was not an empowered officer. The decision cited on behalf of the appellant in Ajayakumar Naik v. State of Orissa (1994 (2) Crimes 1150) does not have any application to the facts of the case. 10. As spoken to by PW4 he received reliable information that a foreign national was engaged in trading of drugs in a house named ‘Sudhi’ within his station limits. According to him he had dispatched Ext.P3 letter to PW6, his immediate superior. 10. As spoken to by PW4 he received reliable information that a foreign national was engaged in trading of drugs in a house named ‘Sudhi’ within his station limits. According to him he had dispatched Ext.P3 letter to PW6, his immediate superior. He refers therein to the reliable information received and mentioned that he was proceeding to the spot.Ext.P3 can be taken as a communication sent in terms of sub section (2) of Section 42. 11. But the point much agitated on behalf of the appellant/accused in this appeal is that no such report had never been sent at all. Therefore, the accused has been deprived of the protection in terms of the said provision. In other words the information received, the seizure made and the arrest recorded are not as if styled in this case, but in some other manner. 12. To elucidate this point the counsel draws my attention to the deposition of PW4, to say that he had not entered dispatch of Ext.P3 in the concerned register kept in his police station. But PW4 has an explanation that, this being a highly confidential matter, he did not record it in the register concerned, but sent confidentially through a police constable to his superior officer, PW6. It is also believable in this case. Simultaneously he was also proceeding to the spot. Necessarily, Ext.P3, if thus duly sent would be received in the office of PW6. 13. But by the time it reached the office of PW6, the raid, seizure and arrest were almost over. Therefore so far as the office of PW6 is concerned, Ext.P3 did not have as much confidentially as it had, at the time of its dispatch by PW4. It had been dispatched from the police station manned by PW4. Necessarily it was incumbent on PW6 to record the receipt of Ext.P3 in the inward register kept in his office. He does not have a case that his office did not keep such a register. But he says that he did not enter it in the inward register. But at the same he had been confronted with Ext.B2, a report submitted from his office to the very same court in connection with another case, wherein he had referred to receipt similar report under Section 42 (2) and its corresponding entry in the inward register, to duly prove that such a report had been received. But at the same he had been confronted with Ext.B2, a report submitted from his office to the very same court in connection with another case, wherein he had referred to receipt similar report under Section 42 (2) and its corresponding entry in the inward register, to duly prove that such a report had been received. Why that procedure has not been adopted in this case is yet to be answered. Therefore it is not conclusively proved that a report in terms of Sec.42 had reached the superior officer. If Ext.P3 had been sent in time, necessarily, it would reach PW6. This leads to the further conclusion that no report under Section 42 (2), Ext.P3 in this case has been forwarded at all. 14. If Ext.P3 had been prepared in time, necessarily a copy there of ought to have been annexed with FIR sent to the court. But it did not form part of the enclosure to the FIR. Even if report is not thus enclosed to the FIR, in every probability when the final report is given by the investigation officer, PW6, it was incumbent on him to indicate receipt of Ext.P3 and produce it before the court. But he did not do so. It is also relevant to note that Ext.P3 did not contain the seal of the police station or the dispatch number. According to PW4, it is an omission. In respect of a matter like this there would not have been such an omission. This also creates doubt as to whether Ext.P3 has been really forwarded to PW6. 15. In this case no arrest memo was prepared. Grounds of arrest were also not mentioned. PW4 had conceded that he did not prepare any arrest memo. Sec.58 of the Code of Criminal Procedure Code specifically provides that any arrest without warrant by a police officer shall duly intimated to the District Magistrate or Sub Divisional Magistrate as the case may be. According to PW4 he had informed the Sub Divisional Magistrate. But no document has been produced in the court. On the other hand the accused was well successful to examine DW1 and to produce the register kept in the office of the Revenue Divisional Officer, the Sub Divisional Magistrate. No intimation regarding the arrest of the accused has been given over to the Sub Divisional Magistrate in terms of Sec.58 of the Code of Criminal Procedure. On the other hand the accused was well successful to examine DW1 and to produce the register kept in the office of the Revenue Divisional Officer, the Sub Divisional Magistrate. No intimation regarding the arrest of the accused has been given over to the Sub Divisional Magistrate in terms of Sec.58 of the Code of Criminal Procedure. Thus whether there was an arrest as alleged itself is in dispute and it could not be cleared by the prosecution. 16. There is also non compliance of Sec.57 of the Act as well. Sec.57 provides that, wherever any person makes any arrest or seizure under the said Act, he shall make a full report of all the particulars of such arrest or seizure to the immediate superior. No such report has been made by PW4 to PW6. The court below has taken Ext.P4 search memo as due compliance of the requirement under Sec.57. Of course it is not a mandatory requirement. It is only directory in nature. More the more, PW6 the Superior Officer, though for another purpose, was present at the spot of occurrence. So, it cannot be taken that there was violation of Sec.57 as such. But even then it was incumbent on PW4 to make a report atleast later to the superior officer, PW6, because what the section require is “a full report of all particulars of such arrest and seizure”. Nothing of that sort has come in evidence in this case. This confirms the doubt as to the arrest. The place where from he has been arrested and the incident in relation to which he was arrested may also become doubtful; this is being discussed later. 17. Sec.55 of the Act makes it obligatory on the part of the officer concerned to affix his seal to the packets of articles sealed or to take samples from them and all samples so taken shall also be sealed with the seal of the officer in charge of the police station. As held by the apex court in Bala Ram v. State of Rajasthan (1993 (2) Crimes 1130) what is required is not the seal of the police station as it will be available to any police constable but seal of the officer concerned. As held by the apex court in Bala Ram v. State of Rajasthan (1993 (2) Crimes 1130) what is required is not the seal of the police station as it will be available to any police constable but seal of the officer concerned. It is also necessary to keep two samples of the seal separately to be sent to the court and the laboratory to verify whether the seal and samples of the packets sent for analysis are intact. Sample seals have been produced in this case forming part of records of the case. According to PW4, the seal contained the letters KEB. But the sample seals, even on examination by the magnifying glass, do not contain such letters. 18. In this regard the deposition of PW1, the independent witness is very much material. He had specifically deposed that he had only seen the melted vax being used and that he did not see any mark being imposed and that there was no seal mark. Therefore it is doubtful as to whether samples had been properly sealed at all. 19. This conclusion is also probable, when Ext.P10 is taken note of. It is a report filed by PW6, the investigating officer, to the court. It reveals that few of the samples given to the court by him had been found to be unsealed. Therefore, those were returned to him for proper sealing and thereafter it had been properly sealed and given back to the court. That means initially there was no proper sealing. Ext.P10 is the report given by PW6 himself. When there is no sealing as disclosed by the evidence, there is all probability tampering, if it had really been sealed as deposed by PW4. The benefit arising out of such doubt shall go to the accused. Therefore it cannot be taken in this case, in the light of Ext.P10 that, there was due and proper compliance of sealing as required in Sect.55. 20. More over in Ext.P1, it has been recorded by PW4, the detecting officer that the articles seized from the accused were in the shape of sticks and rounds. In the A2 bag mentioned in Ext.P1 there were 68 sticks and in A8 bag mentioned in Ext.P1 there were 9 rounds. These were sent to chemical examination. Examination was conducted by PW5. In the A2 bag mentioned in Ext.P1 there were 68 sticks and in A8 bag mentioned in Ext.P1 there were 9 rounds. These were sent to chemical examination. Examination was conducted by PW5. But he deposed before the court that the packet contained only 66 sticks and six rounds. This is not a simple discrepancy. It means there was no proper counting of the articles when Ext.P1 mahazar had been prepared or else there had been some tampering with the packet. Necessarily it will persuade any court to come to the conclusion that the articles sent to the laboratory might not be perhaps the article seized at the time of preparation of Ext.P1. The benefit of that doubt also shall necessarily go to the accused. This also creates must doubt as to whether there was proper sealing or not as provided in Sec.55. 21. There is much doubt as to whether Ext.P1 mahazar was prepared on seizure of the article from accused/appellant and as to when the crime itself was registered. Ext.P2 is, admittedly by the prosecution, the receipt issued by the husband of PW2, the owner of the building having acknowledged the possession of the building with key. According to PW1, the independent witness, PW4 the detecting officer and PW6, the investigating officer, the key was given after preparation of Ext.P1 mahazar. But a reading of Ext.P1 mahazar discloses that it refers to Ext.P2 receipt issued by the husband of PW2 having taken possession back of the house in question. This cannot tally each other. This version given by PW4 before court does not tally with the version given by himself in Ext.P1 report as to the time of handing over the building back to PW2 or her husband, as to whether it was before preparation of Ext.P1 mahazar or after preparation of Ext.P1 mahazar. 22. There is some other anomaly and discrepancy as well. Ext.P2 refers to crime No.18/99 of the police station manned by PW4. Admittedly by PW4, the crime has been registered after he had seized the articles from the accused after apprehending him and after taking him to the police station. Therefore registration of the crime shall be after the preparation of Ex.P1 and after the party had left from the house named ‘Sudhi’. Admittedly by PW4, the crime has been registered after he had seized the articles from the accused after apprehending him and after taking him to the police station. Therefore registration of the crime shall be after the preparation of Ex.P1 and after the party had left from the house named ‘Sudhi’. As spoken to by PW4, the key had been handed over and Ext.P2 receipt had been obtained immediately when they left the house after seizure. At that time necessarily the crime was not registered, going by the deposition of PW4 himself. Crime was registered later, after reaching the police station. Therefore Ext.P2 cannot refer to the crime No.18/99. But it contains the crime number. The explanation by PW4 is that after coming out of the building he contacted the police station to ascertain the number of the next crime to be registered through wireless. But the handing over is, as it is shown in Ext.P1, before finalizing Ext.P1. Otherwise it will not come in Ext.P1. Thus there is much doubt as to when the seizure was effected, when the receipt was issued, when the crime was registered and when Ext.P1 was prepared. It is thus amply clear that the prosecution had not divulged the real case to the court below. Necessarily the benefit arising out of the same shall also be given to the accused. Accordingly, I set aside the conviction ordered by the court below against the accused in S.C.No.331/99. Consequently, sentence is also vacated. The appellant/accused shall be set at liberty forthwith if he is not wanted in any other case.