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2020 DIGILAW 5 (KER)

Rejith v. State of Kerala

2020-01-06

R.NARAYANA PISHARADI

body2020
JUDGMENT : R. Narayana Pisharadi, J. 1. The appellants are the first and the second accused in the case S.C. No. 499/2013 on the file of the Additional Sessions Court-V, Kollam. 2. The appellants stand convicted and sentenced for committing an offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act'). 3. The prosecution case is as follows: On 18.09.2009, at about 21.30 hours, PW1, who was the Excise Inspector of Chadayamangalam Excise Range, was conducting inspection of vehicles at the road in front of Spring Valley Baptist Church near Chunkathara Junction in Kottarakkara. The excise party gave signal to the autorickshaw bearing Reg. No. KL-24-B 537 to stop and the vehicle was stopped. The second accused was the driver of the autorickshaw. Accused 1, 3 and 4 were travelling in that vehicle. When the excise party reached near the vehicle, the third and the fourth accused, who were travelling in the autorickshaw, got down from the vehicle and ran away and escaped. While escaping from the place, the third accused abandoned the bag which he was carrying. There was a suitcase on the lap of the first accused who remained inside the autorickshaw. There was also a bag below the seat of the driver of the autorickshaw. After complying with necessary formalities, the Excise Inspector examined the suitcase which was found in the possession of the first accused. The search was conducted by him in the presence of the Excise Circle Inspector (PW5), who had reached there at the request of the Excise Inspector. The suitcase contained 11.800 kgs of ganja. The bag, which was found below the driver's seat, contained two kilograms of ganja. The bag abandoned by the third accused contained 9.200 kgs of ganja. The Excise Inspector arrested the first and the second accused at the spot. He took samples of the ganja from the suitcase and the two bags and seized the ganja and the samples and other articles as per Ext. P1 mahazar prepared by him at the spot. 4. The case against the accused was registered as CR. No. 1/2009. PW1 arrested the fourth accused on 19.09.2009. He produced the accused who were arrested and also the material objects before the court. P1 mahazar prepared by him at the spot. 4. The case against the accused was registered as CR. No. 1/2009. PW1 arrested the fourth accused on 19.09.2009. He produced the accused who were arrested and also the material objects before the court. After completing the investigation of the case, PW6 Circle Inspector of Excise filed chargesheet against the accused for the offence punishable under Section 20(b)(ii)(C) of the Act. 5. During the trial of the case, the prosecution examined PW1 to PW6 and marked Exts. P1 to P17 documents and MO1 to MO13 material objects. No oral evidence was adduced by the accused. Ext. D1 document was marked at the instance of the third and the fourth accused. 6. The trial court found the third and the fourth accused not guilty of the offence punishable under Section 20(b)(ii)(C) of the Act and acquitted them. The trial court found the first and the second accused guilty of the aforesaid offence and convicted them thereunder. The trial court sentenced the first and the second accused to undergo rigorous imprisonment for a period of ten years each and to pay a fine of Rs. 2,00,000/- each and in default of payment of fine, to undergo rigorous imprisonment for a period of one year each. 7. Heard learned counsel for the appellants and also the learned Public Prosecutor. Perused the records. 8. PW1 Excise Inspector who detected the offence has given evidence in detail narrating the occurrence in which the ganja was seized. He identified the accused in court. He also identified the ganja seized by him and also the suitcase and the bags which contained the ganja. 9. PW2 was the Assistant Excise Inspector who was in the excise party led by PW1. He has also given evidence regarding the seizure of the ganja. 10. PW5 Excise Circle Inspector had reached the spot of the occurrence on the information given by PW1. He has not given evidence in detail regarding the occurrence. His evidence is only that, on getting information from PW1, he reached the spot of the occurrence and that he witnessed the search and seizure made by PW1. 11. PW1 has sworn to the entire incident in necessary details. His evidence, on all material particulars, is corroborated by the evidence of PW2 and also Ext. P1 mahazar and to some extent by the testimony of PW5. 11. PW1 has sworn to the entire incident in necessary details. His evidence, on all material particulars, is corroborated by the evidence of PW2 and also Ext. P1 mahazar and to some extent by the testimony of PW5. There is no striking improbability or material contradiction or discrepancy in the evidence of PW1 and PW2 regarding the seizure of ganja from the bag which was found below the driver's seat in the autorickshaw and the suitcase which was found on the lap of the first accused. 12. Identification of the second accused as the driver of the autorickshaw and the first accused as the person who was carrying the suitcase which contained the ganja by PW1 in the court practically remains unchallenged in his cross-examination. 13. There is no whisper of an allegation that PW1 had any motive to falsely implicate the first accused in such a serious crime. Though it is alleged that PW1 had enmity towards the second accused for the reason that the second accused had refused to be a witness in an abkari case, no material is produced by the second accused to prove this allegation. There is nothing to show that the excise officers have falsely implicated the appellants with a view to settle any personal score with them. In such circumstances, there is no sufficient ground to disbelieve the evidence of PW1 and PW2 regarding the seizure of the ganja from the possession of the appellants. 14. Exts. P3 and P3(a) are the arrest memos prepared by PW1 at the time of arresting the first and the second accused. These documents contain the signature of the appellants as well as their thumb impression. PW1 has given evidence to that effect. His evidence in that regard is not challenged in the cross-examination. There is also no challenge made to the signature and the thumb impression of the first and the second accused in the aforesaid documents. The appellants have no case that they had put the signature and affixed thumb impression in Exts. P3 and P3(a) documents not at the spot of the occurrence but at the excise office or some other place. In such circumstances, it is established that the first and the second accused were arrested from the spot of the occurrence and not from any other place. 15. P3 and P3(a) documents not at the spot of the occurrence but at the excise office or some other place. In such circumstances, it is established that the first and the second accused were arrested from the spot of the occurrence and not from any other place. 15. PW1 has given evidence that he gave intimation regarding the arrest of the first accused to his grandmother and intimation regarding the arrest of the second accused to his father as per Exts. P4 and P4(a) documents. PW1 has given evidence that these documents bear the signature of the grandmother of the first accused and the father of the second accused. Exts. P4 and P4(a) documents are also not challenged in the cross-examination of PW1. These documents also establish the fact that the first and the second accused were arrested from the spot of the occurrence and not from any other place and that due intimation regarding the arrest was given to their near relatives. 16. Ext. P16 is the certificate of chemical examination received in respect of the samples sent from the court to the Forensic Science Laboratory. Ext. P16 shows that the samples which were produced before the court and forwarded to the laboratory were ganja. 17. Ext. P13 is the forwarding note prepared by the Excise Inspector for sending the samples for chemical examination. Ext. P14 is the test memo prepared by him and Ext. P15 is the covering letter addressed to the Director of the Forensic Science Laboratory. There is no challenge made by the appellants in the cross-examination of PW1 with regard to the preparation of any of the aforesaid documents. They have no case that there was any infirmity in the preparation of the aforesaid documents. There is also no challenge made by the appellants to the evidence of PW1 regarding the procedure and process adopted by him for taking the samples at the spot of the occurrence. Therefore, it can be safely concluded that the samples seized from the larger quantity of contraband at the spot of the occurrence were produced before the court and they were forwarded to the laboratory and Ext. P16 is the result of chemical examination in respect of those samples. 18. Therefore, it can be safely concluded that the samples seized from the larger quantity of contraband at the spot of the occurrence were produced before the court and they were forwarded to the laboratory and Ext. P16 is the result of chemical examination in respect of those samples. 18. The main thrust of the contentions raised by the learned counsel for the appellants before this Court was upon violation of the provision contained in Section 50 of the Act by PW1. However, the petition of appeal contains several grounds on which the conviction entered against the appellants is challenged. They are: (1) Absence of independent evidence regarding search and seizure (2) Delay in producing the contraband article before the court (3) Conducting of investigation by the officer who was present at the time of detecting the offence (4) Violation of the provisions contained in Section 42 of the Act (5) Violation of the provisions contained in Section 50 of the Act (6) Violation of the provisions contained in Section 57 of the Act. 19. There is no merit in the contention that the independent witnesses have not supported the prosecution case and therefore, the evidence given by PW1 and PW2 cannot be believed. PW3 and PW4 are the independent witnesses examined by the prosecution. PW3 admitted his signature in Ext. P1 mahazar. He has also given evidence that he signed the mahazar at the spot of the occurrence and many persons, including excise officers, were present there at that time. However, PW3 deposed that he could not state whether the appellants were present at the spot at that time and that he does not know the appellants. 20. It is true that PW3 did not fully support the prosecution case. At the same time, it cannot be found that his evidence does not help the prosecution in any manner. PW3 did not depose with regard to the presence of the appellants at the spot of the occurrence. He also did not state anything regarding the seizure of the ganja by the excise officers. But, his evidence indicates that he had signed Ext. P1 mahazar at the spot of the occurrence and that the excise officers were present there. His evidence in this regard gives assurance to the fact that the evidence of PW1 and PW2 regarding the occurrence is true. 21. But, his evidence indicates that he had signed Ext. P1 mahazar at the spot of the occurrence and that the excise officers were present there. His evidence in this regard gives assurance to the fact that the evidence of PW1 and PW2 regarding the occurrence is true. 21. PW4, the other independent witness, did not support the prosecution case. He denied the signature in Ext. P1 mahazar. Hostility of PW4 cannot persuade the court to find that the prosecution case is false. Courts do come across hostile witnesses, who with impunity speak falsehood before the court. 22. There is also no merit in the contention that there was delay in producing the material objects, including the ganja, before the court. PW1 has given evidence that he produced accused 1, 2 and 4 and the material objects before the court on 19.09.2009. The evidence of PW1 in this regard remains unchallenged in the cross-examination. Ext. P12 is the remand report prepared by PW1. The endorsement of the Magistrate or the Sessions Judge on Ext. P12 shows that accused 1, 2 and 4 were produced before him/her at 20.00 hours on 19.09.2009. (It is not clear from the remand report whether the remand of the accused was made by the Magistrate or the Sessions Judge. The designation of the officer who remanded the accused is not written below the endorsement). The time of production of the accused before the Magistrate or the Sessions Judge indicates that they were produced at his/her residence. Ext. P2 is the crime and occurrence report. Ext. P11 is the seizure report. All these documents bear the initials of the Magistrate or the Sessions Judge with the date 19.09.2009. Presumably, the accused and the material objects were produced before the Magistrate or the Sessions Judge on 19.09.2009 at 20.00 hours and thereafter the records and material objects were entrusted at the office of the court only on the next working day, that is, on 22.09.2009. Apparently, this is the reason for the documents to bear the seal of the court with the date 22.09.2009. Apparently, this is the reason for the documents to bear the seal of the court with the date 22.09.2009. At any rate, the evidence of PW1 that he produced the material objects and the accused before the court on 19.09.2009 remains unchallenged in the cross-examination and his evidence in that regard is corroborated by the fact that the documents, including the crime and occurrence report, seizure report, remand report etc., bear the initials of the learned Sessions Judge or the Magistrate with the date 19.09.2009. 23. There is no substance in the plea of the appellants about non-compliance with the provisions contained in Section 42 of the Act. PW1 has given evidence on cross-examination that he had no prior information regarding the transportation of ganja and that the information was only that there was possibility of transportation of contraband articles through the place of incident. PW1 has specifically stated that he had no information regarding transportation of ganja. Section 42 of the Act has no application in the absence of any personal knowledge or information by the detecting officer. It is a case of chance recovery effected during routine checking of vehicles. In such circumstances, the provisions contained in Section 42 of the Act have no application (See Ram Kumar v. Central Bureau of Narcotics: (2008) 5 SCC 385 ). 24. Section 42 of the Act would be invocable only if the search is made by the officer, upon prior information. It is settled proposition of law that when such an information or intimation or knowledge comes to the notice of the detecting officer in the course of regular patrolling, it is not necessary to follow the conditions incorporated in Section 42 of the Act (See Hamidbhai Azambhai Malik v. State of Gujarat, AIR 2009 SC 1378 ). 25. Moreover, the appellants have no case that PW1 is not a gazetted officer or that he was not an officer authorised by the State Government. When the search is conducted by the detecting officer, who is a gazetted officer himself, Section 42 of the Act has no application (See Sekhar Suman Verma v. Superintendent of N.C.B., AIR 2016 SC 3193 ). 26. There is also no merit in the contention of the appellants that there was violation of the provisions contained in Section 50 of the Act. 27. 26. There is also no merit in the contention of the appellants that there was violation of the provisions contained in Section 50 of the Act. 27. In the first place, the evidence of PW1 shows that he told the appellants that they have got the right to get their body searched in the presence of a gazetted officer or Magistrate and that they informed him that there is no need for the presence of any such person and PW1 himself can conduct search of their person. Inspite of the fact that the appellants were willing to be searched by PW1 himself, he gave information to PW5, his immediate superior officer and PW5 reached the spot and the search was conducted in his presence. 28. In the second place, Section 50 of the Act applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag, or premises. A bag, briefcase or any such article or container, under no circumstances, can be treated as body of a human being. It is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act. The provisions of Section 50 of the Act will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. which (the accused) may be carrying (See State of Himachal Pradesh v. Pawan Kumar, AIR 2005 SC 2265 ). 29. The mandate of Section 50 of the Act is confined to "personal search" and not to search of a vehicle or a container or premises. Section 50 of the Act affords protection to a person in matters concerning "personal search" and stipulates various safeguards. It is only upon fulfilment of and strict adherence to said requirements that the contraband recovered pursuant to "personal search" of a person can be relied upon as a circumstance against the person. The law is well settled that an illicit article seized from the person during personal search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as admissible evidence of proof of unlawful possession of contraband (See State of Punjab v. Baljinder Singh, AIR 2019 SC 5298 ). 30. The law is well settled that an illicit article seized from the person during personal search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as admissible evidence of proof of unlawful possession of contraband (See State of Punjab v. Baljinder Singh, AIR 2019 SC 5298 ). 30. In the instant case, PW1 has not given evidence regarding the search of the body of the appellants. However, Ext. P1 mahazar shows that he had searched the body of the appellants and no contraband article was found on such search. The ganja was seized from the suitcase which was found in the possession of the first accused and the bag which was found below the driver's seat in the autorickshaw and not on the personal search of the appellants. 31. In Baljinder Singh (supra) the Apex Court has held as follows: "In the instant case, the personal search of the accused did not result in recovery of any contraband. Even if there was any such recovery, the same could not be relied upon for want of compliance of the requirements of Section 50 of the Act. But the search of the vehicle and recovery of contraband pursuant thereto having stood proved, merely because there was non-compliance of Section 50 of the Act as far as "personal search" was concerned, no benefit can be extended so as to invalidate the effect of recovery from the search of the vehicle. Since in the present matter, seven bags of poppy husk each weighing 34 kgs were found from the vehicle which was being driven by accused-Baljinder Singh with the other accused accompanying him, their presence and possession of the contraband material stood completely established". 32. The dictum laid down in Baljinder Singh (supra) squarely applies to the facts of the present case. 33. Section 57 of the Act states that, whenever any person makes any arrest or seizure under the Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior. 34. In the instant case, PW1 did not give any evidence regarding compliance with the provision contained in Section 57 of the Act. 34. In the instant case, PW1 did not give any evidence regarding compliance with the provision contained in Section 57 of the Act. But, at the instance of the third and the fourth accused, the report made by PW1 under Section 57 of the Act to PW5, his immediate superior officer, was got marked as Ext. D1. This report is dated 19.09.2009. Therefore, the appellants cannot contend that there was non-compliance with the provision contained in Section 57 of the Act. 35. It is true that in Ext. D1 report made by PW1 to PW5, it is mentioned that the fourth accused was arrested at the spot. It is evidently a mistake. The report was made by PW1 after the arrest of the fourth accused by him from another place. When PW1 was examined, no question was put to him regarding the discrepancy in Ext. D1 report. Moreover, the appellants, who are the first and the second accused, cannot take any advantage of the fact that Ext. D1 report contains a mistake regarding the arrest of the fourth accused in the case. Further, PW5 was present at the spot of the occurrence itself. 36. PW5 had conducted a part of the investigation of the case. He admitted this fact in the cross-examination. He is a person who was present at the time of the occurrence and who had witnessed the search and seizure made by PW1. Therefore, learned counsel for the appellants contended that the investigation conducted by PW5 has caused prejudice to the appellants. However, the learned counsel has not pointed out what is the prejudice caused to the appellants on account of the investigation conducted by PW5. Evidently, PW5 was not the detecting officer. He had reached the spot of the occurrence at the request of PW1 and he was only present there. He did not take part in the search or the seizure. In such circumstances, the dictum laid down by the Supreme Court in Mohanlal v. State of Punjab, AIR 2018 SC 3853 has no application to the facts of the present case. Rather, the decision of the Apex Court in Varinder Kumar v. State of H.P. 2019(3) SCALE 50 applies to the facts of the present case. 37. Conscious possession of the ganja by the appellants stands established from the evidence adduced by the prosecution in the case. Rather, the decision of the Apex Court in Varinder Kumar v. State of H.P. 2019(3) SCALE 50 applies to the facts of the present case. 37. Conscious possession of the ganja by the appellants stands established from the evidence adduced by the prosecution in the case. The suitcase which contained ganja was on the lap of the first accused. The bag which contained the ganja was below the seat of the driver (second accused) of the autorickshaw. There can be no doubt with regard to the fact that they were in conscious possession of the contraband article. 38. No dispute is raised with regard to the fact that the quantity of ganja seized from the appellants constitutes commercial quantity. The offence under Section 20(b)(ii)(C) of the Act provides for a minimum sentence of rigorous imprisonment of ten years. The trial court has imposed only the minimum sentence of imprisonment on the appellants. The trial court has imposed a sentence of fine of Rs. 2,00,000/- each on the appellants. Considering the quantity of ganja seized from the appellants, the sentence of fine imposed on them also is not excessive. 39. In the aforesaid circumstances, I find no sufficient ground to interfere with the conviction and sentence entered against the appellants for the offence punishable under Section 20(b)(ii)(C) of the Act. The appeal lacks merits and it is liable to be dismissed. Consequently, the appeal is dismissed.