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2024 DIGILAW 268 (KER)

Alavikutty, S/o. Muhammed v. State of Kerala

2024-02-28

K.BABU

body2024
JUDGMENT : Aggrieved by the judgment dated 28.12.2021 passed by the Additional Sessions Judge-I, Alappuzha in S.C.No.690/2019, the accused has preferred this appeal. 2. The accused has been convicted of the offence under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.50,000/- by the impugned judgment. 3. The prosecution case is that at about 3.30 p.m. on 2.5.2019, at the starting point of Colgate junction - Kavunkal road, Valavanad, the accused was found in possession of 2.150 kg of Ganja in a car bearing registration No.KL-10/AQ-4176. 4. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 20(b)(ii)(B) and 25 of the NDPS Act. On the appearance of the accused, charge was framed against him under Section 20(b)(ii)(B) of the NDPS Act. He pleaded not guilty to the charge levelled against him, and therefore, he came to be tried by the trial Court for the aforesaid offence. 5. The prosecution examined PWs 1 to 11 and proved Exts.P1 to P20 and MO1. 6. After the closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused, and hence, he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. DWs 1 and 2 were examined on the defence side. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 20(b)(ii)(B) of the NDPS Act. He was sentenced to undergo rigorous imprisonment for a term of five years and to pay a fine of Rs.50,000/-. 7. Heard Ms. Bleimy T Jose, the learned counsel appearing for the appellant/accused and Sri. G. Sudheer, the learned Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant challenged the judgment of conviction and sentence on the following grounds:- (a) There were pertinent contradictions in the testimonies of the occurrence witnesses. 7. Heard Ms. Bleimy T Jose, the learned counsel appearing for the appellant/accused and Sri. G. Sudheer, the learned Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant challenged the judgment of conviction and sentence on the following grounds:- (a) There were pertinent contradictions in the testimonies of the occurrence witnesses. (b) The trial Court has not considered the probabilities raised in the examination of the accused under Section 313 Cr.P.C. (c) The prosecution failed to prove the question of how the vehicle involved in the case came to be in the possession of the accused. 9. On the date of occurrence, the Excise Inspector, Alappuzha Excise Range (PW1) got reliable information that one person was possessing Ganja in an Alto K10 Car bearing registration No. KL-10/AQ-4176, which was parked at Colgate junction, Valavanad. PW1 reduced the information into writing (Ext.P10) and informed his senior officer. He rushed to the place of occurrence and found the car. The accused was sitting in the driver seat. PW1 informed him of his intention to search his body. He also informed the accused of his right to be searched in the presence of a Magistrate or gazetted officer. The accused informed that the presence of a gazetted officer is necessary. PW1 prepared Ext.P2 intimation to which the accused gave Ext.P2(a) reply. PW1 then requested the Circle Inspector of Special Squad (PW10) to reach the place of occurrence to witness the search. Around 3.30 p.m. PW10 reached the place of occurrence. He received Ext.P3 notice. 10. PW1 searched the body of the accused in the presence of PW10. No contraband substances were recovered from his body. Then PW1 searched the vehicle and found a sack beneath the driver seat. He took the sack, which contained 2.150 kg of Ganja. The Ganja was covered in a polythene cover and tied with cello tape. PW1 prepared Ext.P4 search list. The detecting officer arrested the accused, took the sample from the Ganja and seized the contraband substance, including the sample, by preparing Ext.P7 seizure mahazar. He registered Ext.P8 FIR and produced the properties before the jurisdictional Court as per Ext.P9 property list. PW1 seized the Aadhar card of the accused (Ext.P11), RC particulars, insurance certificate, policy certificate etc., in respect of the vehicle from the dashboard (Exts.P12 to P14). 11. He registered Ext.P8 FIR and produced the properties before the jurisdictional Court as per Ext.P9 property list. PW1 seized the Aadhar card of the accused (Ext.P11), RC particulars, insurance certificate, policy certificate etc., in respect of the vehicle from the dashboard (Exts.P12 to P14). 11. PW1 prepared inventory and photographs of the Ganja in the presence of the Magistrate concerned (Ext.P16 and P15 series, respectively). MO1 is the sack used by the accused to transport the Ganja. PW1 prepared Ext.P17 forwarding note to send the sample for chemical examination. 12. PW2 was the Excise Inspector, who had accompanied PW1 on the date of occurrence. PW3 was a preventive officer of Alappuzha Intelligence Bureau who was also with PW1. Both of them gave evidence in tune with the evidence of PW1. 13. PWs 5 and 6 are independent witnesses. PW5 stated that he witnessed the seizure of Ganja from the car but later stated that he did not see the excise officials taking Ganja from the car. PW6 deposed that the excise officials took the Ganja from the rear seat of the car. He further deposed that he saw several small packets of Ganja inside the sack. 14. The major challenge raised by the learned counsel for the appellant is based on the contradictions between the testimonies of PWs 1 to 3 and PW6. The prosecution case supported by the oral evidence of PWs 1 to 3 is that the Ganja was seized from beneath the driver seat. PW6, the independent witness, stated that the excise officials took the Ganja from the rear seat of the car. The prosecution did not request the trial Court to declare PW6 as ‘hostile’ to the prosecution case. The learned counsel, relying on State of Rajasthan v. Mana Singh (MANU/RH/1430/2012) and Javed Masood and Another v. State of Rajasthan (2010 KHC 4141) submitted that the evidence of PW6 is binding on the prosecution, which makes the prosecution evidence self-contradictory, and therefore, the appellant is entitled to the benefit of doubt. In Mana Singh (supra), the prosecution relied on the evidence of an independent witness, which was contradictory to the version given by the official witness on the place of recovery. In that case, the prosecution was inclined to own the evidence of the independent witness whose version was contradictory to the prosecution case. But, he was not declared hostile. In Mana Singh (supra), the prosecution relied on the evidence of an independent witness, which was contradictory to the version given by the official witness on the place of recovery. In that case, the prosecution was inclined to own the evidence of the independent witness whose version was contradictory to the prosecution case. But, he was not declared hostile. In Mana Singh, the Apex Court observed as follows:- “Thus, there are pertinent contradictions between the testimonies of Narendra Kumar (PW 14) on the one side, and Gopal Prasad (PW 8), on the other side. Since, the prosecution has not declared Gopal Prasad (PW 8) as a hostile witness it is equally bound by his testimony. Since the prosecution case is replete with lacunae, and with self-contradictory evidence, the learned Judge was certainly justified in granting the benefit of doubt to the accused respondent. Hence, this Court does not find any illegality, or perversity in the impugned judgment. For the reasons stated above, this leave to appeal is devoid of any merit; it is, hereby dismissed.” 15. In Javed Masood (supra), a witness (PW6 therein) testified in clear terms that certain occurrence witnesses (PWs 5, 13 and 14) were not present at the scene of occurrence, which turned contradictory to the prosecution version. The evidence of PW6 therein supported the defence. However, the Public Prosecutor in the trial Court failed to seek permission from the Court to declare him hostile. The Apex Court held that his evidence is binding on the prosecution as it is. Therefore, the Apex Court held that the evidence of that witness cannot be ignored. 16. Under Section 154 of the Evidence Act the Court may, at its discretion, permit the person who calls a witness to put any question to him that might be put in cross-examination by the adverse party. When the witness shows a tendency to favour the adverse party, the party who calls him has a right to put cross-questions to the witnesses. If the Public Prosecutor does not seek permission from the Court to declare the witness hostile, the prosecution is bound by the evidence of that witness. When the witness shows a tendency to favour the adverse party, the party who calls him has a right to put cross-questions to the witnesses. If the Public Prosecutor does not seek permission from the Court to declare the witness hostile, the prosecution is bound by the evidence of that witness. However, it is open to the Public Prosecutor to take a stand during the final consideration of the matter that he is not inclined to own the evidence of any particular witness in spite of the fact that such witness was examined on his side. This legal position is fortified by the decision of the Apex Court in State of Bihar v. Laloo Prasad alias Laloo Prasad Yadav and Another (2002 KHC 1476). 17. In the present case, the learned Public Prosecutor submitted that he is not inclined to own the evidence of PW6. The learned Public Prosecutor further submitted that the oral evidence of PWs 1 to 3 and 10, the official witnesses corroborated by the evidence of PW5 establishes the seizure of Ganja from the possession of the accused. Since the learned Public Prosecutor was not inclined to own the evidence of PW6, his evidence is not bound by the prosecution. 18. The next challenge to the prosecution is that it failed to establish how the vehicle came to the possession of the accused. The prosecution could well establish that the vehicle was in the possession of the accused at the time of occurrence. The fact that the prosecution was not in a position to establish how the vehicle came to the possession of the accused has nothing to do with the merit of the prosecution version. 19. Yet another challenge raised by the learned counsel for the appellant is that the trial Court did not consider the version given by the accused in his examination under Section 313 Cr.P.C. The version given by the accused in his examination under Section 313 Cr.P.C. is as follows:- On 29.4.2019 at 7.30 a.m., he approached Shameer to consume Ganja for his personal use. An excise officer by name Biyas took the accused and Shameer to the excise office. The accused was locked in a cell. The excise officials took his mobile phone and the money with him. At 1.30 p.m., they let off Shameer. The accused was detained there. An excise officer by name Biyas took the accused and Shameer to the excise office. The accused was locked in a cell. The excise officials took his mobile phone and the money with him. At 1.30 p.m., they let off Shameer. The accused was detained there. On 1.5.2019, around 12 p.m. one Sulfiquer was brought to the excise office along with 6 kg Ganja. At 6 p.m., Sulfiquer was brought to the Magistrate. On 2.5.2019, another Shameer @ Shatan was arrested along with 2 kg of Ganja. The accused questioned the excise officials as to why he was detained there. On that day, the accused and Shameer were brought before the jurisdictional Magistrate. 20. It is submitted that the version given by the accused in his examination under Section 313 Cr.P.C. was not considered by the trial Court. The prosecution could establish beyond reasonable doubt that the accused was found in possession of the Ganja from the place of occurrence as pleaded by the prosecution. Therefore, the version given by the accused in his examination under Section 313 Cr.P.C. is not probable. The statement given by the accused in his examination under Section 313 Cr.P.C. cannot be treated as evidence as it is not tested. But the statement made by the accused in his defence under Section 313 Cr.P.C. could certainly be taken aid to give credence to the evidence led by the prosecution. In the instant case, the defence version would not in any way affect the credibility of the prosecution case regarding arrest and seizure. 21. The learned counsel for the appellant relied on Gangadhar alias Gangaram v. State of Madhya Pradesh (2020 KHC 6473) to contend that he was denied the right to a fair investigation. In Gangadhar, the Apex Court, while holding that the investigation was extremely casual, perfunctory and shoddy in nature, observed that the accused therein had been denied the right to a fair investigation, which is but a facet of a fair trial guaranteed to every accused under Article 21 of the Constitution. In the present case, the accused/appellant has failed to show that the investigation was casual and shoddy. The evidence led by the prosecution is sufficient to hold that the accused was found in possession of Ganja. In the present case, the accused/appellant has failed to show that the investigation was casual and shoddy. The evidence led by the prosecution is sufficient to hold that the accused was found in possession of Ganja. Relying on Sanjeet Kumar Singh @ Munna Kumar Singh v. State of Chhattisgarh (2022 KHC 6869) the learned counsel for the appellant submitted that the accused is entitled to the benefit of doubt. In Sanjeet Kumar Singh, the Apex Court held that the moment a doubt is cast upon the most fundamental aspect, namely the search and seizure, the accused is entitled to the benefit of doubt. As the prosecution successfully established the search and seizure, the accused is not entitled to THE benefit of doubt. All the challenges raised by the appellant, therefore, fail. 22. The learned counsel for the appellant further contended that the sentence imposed is exorbitant. The accused was arrested on 2.5.2019. He was an under-trial prisoner during the trial. On 28.12.2021, he was convicted and sentenced to undergo rigorous imprisonment for a period of five years. Set off was allowed for the period of detention undergone by the accused. As of now, he has undergone imprisonment for a period of 4 years and 9 months. The prosecution has no case that the appellant has any antecedents. Having considered the entire circumstances, the substantive sentence of imprisonment awarded to the accused is modified and is limited to the period of sentence already undergone by him. The appeal is partly allowed as above.