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2018 DIGILAW 775 (KER)

Sidhik v. State of Kerala

2018-10-01

P.UBAID

body2018
JUDGMENT : The appellant in Crl.Appeal No.126 of 2016 is the first accused in S.C.(NDPS) No.39 of 2015 of the Special Court for the trial of NDPS Act cases, Thodupuzha, and the appellant in Crl.Appeal No.894 of 2016 is the second accused therein. They challenge the conviction and sentence against them under S.20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act. 2. The prosecution case is that when the Excise Inspector of the Narcotic Special Squad, Adimali searched the house of the first accused on 29.8.2014 on the basis of secret reliable information, the first accused was found possessing 1.425 Kgs of dried ganja at the kitchen of his house, and the second accused was also seen there examining the quality of ganja as the person who came there to purchase ganja from the first accused. The Excise Inspector arrested the two accused on the spot, and seized the quantity of ganja as per a mahazar. On the basis of the arrest and seizure, he registered the crime and occurrence report, and investigation was taken over by a Circle Inspector of Excise. Another Circle Inspector of Excise of the Squad closed the investigation, and submitted final report in Court. 3. The two accused pleaded not guilty to the charge framed against them by the trial court under S.20(b)(ii)(B) of the NDPS Act, and claimed to be tried. The prosecution examined seven witnesses, and proved Exts.P1 to P17 documents in the trial court. Both the accused denied the incriminating circumstances, when examined under S.313 Cr.P.C. The second accused projected a defence that he has nothing to do with the ganja, and that he had not at any time come to purchase ganja from the first accused. The first accused projected a defence that he has no connection with the house searched by the Excise Inspector. In defence, the accused examined a witness as DW1, and proved Exts.D1 and D2 documents. The MO1 and MO2 properties were also identified during trial. 4. On an appreciation of the evidence, the trial court found both the accused guilty. On conviction, they were sentenced to undergo rigorous imprisonment for five years each and to pay a fine of Rs.50,000/-each under S.20(b)(ii)(B) of the NDPS Act. Aggrieved by the judgment of conviction dated 28.1.2016, the two accused have come up in appeal. 4. On an appreciation of the evidence, the trial court found both the accused guilty. On conviction, they were sentenced to undergo rigorous imprisonment for five years each and to pay a fine of Rs.50,000/-each under S.20(b)(ii)(B) of the NDPS Act. Aggrieved by the judgment of conviction dated 28.1.2016, the two accused have come up in appeal. The two appeals were heard together, and are being disposed of by this common judgment. 5. On hearing both sides, and on a perusal of the materials, I find that there is no satisfactory evidence or material as against the 2nd accused except that he was also seen at the house of the 1st accused, who was found possessing some quantity of ganja, and that even as regards the 1st accused, things are doubtful and that there are some legal infirmities, the benefit of which must go to the 1st accused. 6. This is a case where some quantity of ganja was seized by an Excise Inspector on search at the house of the 1st accused. PW5 is the Excise Inspector, who detected the offence, PW4 is the Excise Circle Inspector who conducted investigation, and PW7 is the Circle Inspector of Excise who closed the investigation and submitted final report. The main evidence in this case is that of PW5. Regarding the compliance of the statutory requirements also, the main evidence is that of PW5. Two independent witnesses examined by the prosecution as PW1 and PW2 turned hostile. They did not in any manner support the prosecution. PW6 is the Assistant Excise Commissioner examined to prove the reports under Ss.42 and 57 of the NDPS Act. 7. The evidence of PW5 as against the 2nd accused is only that when he reached the house of the 1st accused for search, he saw the 2nd accused also there examining the ganja kept by the 1st accused at the kitchen. It is not known why or on the basis of what material, PW5 would say that the 2nd accused came at the house of the 1st accused for purchasing ganja. If at all, it is true that he had come there for the purpose of purchasing some quantity of ganja, that itself cannot be a ground or material to find the 2nd accused guilty under the NDPS Act. If at all, it is true that he had come there for the purpose of purchasing some quantity of ganja, that itself cannot be a ground or material to find the 2nd accused guilty under the NDPS Act. For a conviction as against him, the prosecution must have a definite case against him that he was seen committing any definite offence punishable under the NDPS Act. Just because, the 2nd accused happened to be seen at the house of the 1st accused, the 2nd accused cannot be found guilty or convicted. The prosecution must have something definite to prove some sort of connection between the 2nd accused and the quantity of ganja found at the house of the 1st accused. Whatever be the connection between the 1st accused and the 2nd accused, the court cannot convict the 2nd accused when there is no evidence or material to connect the 2nd accused with the quantity of ganja in any manner. It appears that the Excise Inspector arrested the 2nd accused and also arraigned him as an accused only because he was seen at the house of the 1st accused, when the Excise party reached there. I find that in the absence of any evidence, proving the complicity of the 2nd accused, or his connection with the quantity of ganja involved in this case in any manner, he is entitled for acquittal. 8. Now let me see what is the evidence as against the 1st accused. The learned counsel for the 1st accused made arguments before this Court mainly regarding the non-compliance of the statutory requirements under Ss.42, 50 and 57 of the NDPS Act. As regards the compliance of S.42(2) of the NDPS Act, it is well settled by this Court and also the Hon’ble Supreme Court that in a case where any information is received and recorded by the Detecting Officer, and he has also recorded the reasons for immediate search without waiting for orders from the concerned court, he is bound to send a report of the facts to the immediate superior officer within 72 hours as prescribed under sub-s.(2) of S.41 of the NDPS Act. Ext.P5 is said to be the information received by PW5 regarding possession of ganja by the 1st accused at his house and Ext.P6 is said to be the copy of it. Ext.P5 is said to be the information received by PW5 regarding possession of ganja by the 1st accused at his house and Ext.P6 is said to be the copy of it. The original must be sent to the immediate superior officer of the detecting officer, and the copy must be kept by the detecting officer. The Ext.P5 original contains only the initials of somebody, whereas the Ext.P6 copy contains not only such an initial, but also the writings showing the designation of the officer, who received it and also his office seal. It is not known how the writings or the initials or the seal of the Assistant Excise Commissioner, happened to be made in the Ext.P6 copy, because such writings or details are expected only in the original received by the superior officer. Anyway, what is required to be sent under S.42(1) of the NDPS Act is a report in writing about the information received or the information as such, and also the grounds recorded by the detecting officer for the belief for not-waiting for orders from the concerned court. Ext.P5 is not at all a report as meant under S.42(2) of the NDPS Act. 9. There is yet another aspect as regards the Ext.P5 report. What is provided under S.42(2) of the NDPS Act is that the report shall be sent by the Detecting Officer within 72 hours to his immediate superior officer. Ext.P5 is seen sent to the Assistant Excise Commissioner. The report submitted by the Detecting Officer under S.42(2) of the NDPS Act to anybody other than his immediate superior officer cannot be legally accepted as a report meant under S.42(2) of the NDPS Act. Thus, I find non-compliance of S.42(2) of the NDPS Act in this case, and there is not even substantial compliance of S.42 of the NDPS Act. 10. Of course, it is true that the quantity of ganja in this case was seized by the Excise Inspector on search at the house of the accused, and no contraband article was seized on his body search. Ext.P12 series are said to be the consent given by the two accused for body search by PW5 himself under S.50 of the NDPS Act. Ext.P12 series are said to be the consent given by the two accused for body search by PW5 himself under S.50 of the NDPS Act. The evidence given by PW5 is that the two accused were informed by him of their right to be searched in the presence of a Gazetted Officer or a Judicial Magistrate, but they waived the said right and gave consent for body search by him. The position stands now settled that in a case where any contraband article was seized from the hands of the accused, without body search, or from his possession otherwise, there is no necessity of complying with S.50 of the NDPS Act, but in cases where such body search was conducted, though nothing was seized on said search, and seizure was otherwise made, the detecting officer will have to comply with the provisions of S.50 of the NDPS Act also. Of course, here PW5 claims to have complied with the procedure under S.50 of the NDPS Act and he relies on the Ext.P12 series consent given by the two accused. The whole contents including the information given to the accused, and also the name and other details of the witnesses were written therein by the Excise Inspector. Even the waiver portion by which consent was given by the accused, is not seen written in the hand-writing of the accused. This creates a very serious doubt about the genuineness of the Ext.P12 series. The consent given by the two accused by way of Ext.P12 series appears to be really artificial. Thus, compliance of S.50 of the NDPS Act is doubtful, though nothing was in fact seized on the body search of the accused. 11. Whatever be the volume of evidence proving the factual aspects, the accused will have to be acquitted by the court, if non-compliance of the mandatory statutory requirements is proved before the court, or if proper compliance of the statutory requirements is not proved by the prosecution. Of course, as regards the seizure of some quantity of ganja, PW5 has given evidence. On factual aspects, there is only the evidence of PW5. Even assuming that his evidence on facts can be accepted, the crucial question is whether he had actually complied with the mandatory requirements under Ss.42, 50 and 57 of the NDPS Act. Of course, as regards the seizure of some quantity of ganja, PW5 has given evidence. On factual aspects, there is only the evidence of PW5. Even assuming that his evidence on facts can be accepted, the crucial question is whether he had actually complied with the mandatory requirements under Ss.42, 50 and 57 of the NDPS Act. As regards S.42 of the NDPS Act, I have found non-compliance, and as regards S.50, I have found suspicious compliance or artificial compliance. Now let me come to the report required under S.57 of the NDPS Act. 12. Section 57 of the NDPS Act provides that whenever any person makes any arrest or seizure under the Act, he shall make a full report of all the particulars of such arrest or seizure to his immediate official superior within 48 hours next after such arrest or seizure. The detection in this case was made by PW5, the Excise Inspector. Ext.P17 is said to be the report sent in this case under S.57 of the NDPS Act. This is in fact a report sent by the Circle Inspector of Excise to the Assistant Commissioner of Excise. Instead of the Excise Inspector sending such a report to his immediate superior, the Excise Circle Inspector, who took over investigation, sent a report to the Assistant Excise Commissioner. This is not what is prescribed under S.57 of the NDPS Act. The report submitted under S.57 of the NDPS Act must contain all the details of the detection process including the place searched, the manner of search, the compliance of the requirements under Ss.42 and 50 of the NDPS Act, the details of the contraband seized on arrest, the details of the person arrested on search, the date and time and also the other details of search, the quantity of the contraband seized, the process of collecting sample from the total contraband etc. Such requirements and details are not seen in the Ext.P17 report. If at all, the details therein can be accepted as sufficient as substantial compliance, the material question is whether it can be accepted as the report sent by the Detecting officer to his immediate official superior. The Detecting Officer in this case is PW5, but the said report was sent by the Excise Circle Inspector. If at all, the details therein can be accepted as sufficient as substantial compliance, the material question is whether it can be accepted as the report sent by the Detecting officer to his immediate official superior. The Detecting Officer in this case is PW5, but the said report was sent by the Excise Circle Inspector. A different person is not expected to send a report under S.57 of the NDPS Act, and a superior officer other than the immediate official superior of the detecting officer, is not expected to receive such report. There is no explanation why the Detecting officer did not send the required report to his immediate official superior, or how the Circle Inspector who took over investigation happened to send such a report to the Assistant Excise Commissioner. I find gross non-compliance of the mandatory provisions of S.57 of the NDPS Act in this case. 13. As discussed in the foregoing paragraphs, I find that the prosecution has not proved compliance of the statutory requirements under Ss.42, 50 and 57 of the NDPS Act, or that there is evidence proving non-compliance of these provisions. Non-compliance of such mandatory requirements will constitute legal infirmities affecting the whole prosecution case. When such infirmities are there, the accused cannot be found guilty or convicted, whatever be the nature or the volume of evidence on factual aspects. In the result, the two appeals are allowed. Both the appellants are found not guilty of the offence under S.20(b)(ii)(B) of the NDPS Act, and they are acquitted of the said offence in appeal under S.386(b)(i) Cr.P.C. Accordingly, the conviction and sentence against the two appellants under S.20(b)(ii)(B) of the NDPS Act in S.C.39/2015 of the court below will stand set aside, and the two appellants will stand released from prosecution. If any of them is in custody, he shall be released immediately, if he is not required in any other case.