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2025 DIGILAW 1552 (KER)

M. G. Satheesan S/o Gopalan v. State of Kerala

2025-06-02

A.BADHARUDEEN

body2025
JUDGMENT : 1. The sole accused in S.C. No.7/2005 on the files of the Special Court for the trial of Narcotic Drugs and Psychotropic Substances Act, 1985 [hereinafter referred as ‘NDPS Act’ for short], Vadakara, has come up in appeal, challenging the conviction and sentence imposed by the Special Judge, as per the judgment dated 28.11.2006, whereby the accused was found guilty for the offence punishable under Section 20 (b)(ii)(B) of the NDPS Act and accordingly he was convicted and sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.10,000/-. Further, the accused was sentenced to undergo rigorous imprisonment for a period of nine months in default of payment of fine. The State of Kerala, represented by the Public Prosecutor is arrayed as the sole respondent herein. 2. Heard the learned counsel for the appellant as well as the learned Public Prosecutor, in detail. Perused the verdict under challenge and the records of the trial court. 3. Parties in this appeal shall be referred as ‘accused’ and ‘prosecution’ hereafter, for easy reference. 4. In this matter, the prosecution allegation is that, at about 04.15 p.m. on 28.01.2005, the accused was found in possession of 1.500 Kilogram of Ganja, near the Railway gate at Thekkile Peedika, Kannur, for the purpose of sale. On the basis of a secret information, the Sub Inspector, Kannur City Police reached the place of occurrence. Thereafter, in the presence of Tahsildar, on search of the bag possessed by the accused, 1.500 kilogram of Ganja was seized. After the investigation, the Sub Inspector, Kannur City Police Station has filed the Final Report. 5. After, framing charge for the offence under Section 20(b)(ii)(B) of the NDPS Act, the trial court recorded evidence and tried the matter. PWs 1 to 7 were examined and Exts.P1 to P14 and MOs 1 to 7 were marked on the side of the prosecution. After examination of the accused under Section 313(1)(b) of Cr.P.C. DWs 1 to 3 were examined and Exts.D1 to D3 were marked on the side of the accused. That apart, Ext.X1 was also marked as court exhibit. 6. On appreciation of evidence, the trial court convicted and sentenced the accused as stated hereinabove. 7. After examination of the accused under Section 313(1)(b) of Cr.P.C. DWs 1 to 3 were examined and Exts.D1 to D3 were marked on the side of the accused. That apart, Ext.X1 was also marked as court exhibit. 6. On appreciation of evidence, the trial court convicted and sentenced the accused as stated hereinabove. 7. While assailing the conviction and sentence imposed by the trial court, it is argued by the learned counsel for the appellant/accused that, in this matter, Section 42 of the NDPS Act was not properly complied and Ext.P1, the information report under Section 42 and Ext.P6, detailed report under Section 57 of the NDPS Act were not produced before the trial court in time. Later, after starting examination of PW1 and deferring his further examination, those documents were produced. It is argued by the learned counsel for the appellant/accused further that, the case of the accused before the trial court is that, since Sri.Nandakumar, the Probationary Sub Inspector of Kannur City Police, who is familiar with the accused was inimical towards the accused, in the matter of not giving bribe for the purpose of cutting trees from the property of the accused, he falsely fabricated the case and implicated the accused in this crime, without support of any materials, after getting him into custody on 25.01.2005 and keeping him in detention till 28.01.2005. Ext.X1, call details in between telephone numbers of the Probationary Sub Inspector and the house of the accused is given much emphasis by the learned counsel for the accused, in this regard. Therefore, the learned counsel for the appellant/accused would submit that the accused is entitled to get acquittal, since the prosecution case is in the midst of doubts. 8. Per contra, the learned Public Prosecutor would submit that compliance of Section 42 of the NDPS Act would not arise in this case, since the recovery was from a public place, dealt under Section 43 of the NDPS Act. It is also pointed out by the learned Public Prosecutor that, by producing Ext.X1 itself, it could not be said that the Probationary Sub Inspector made calls to the house of the accused demanding bribe, as alleged by the accused and there was no attempt on the part of the accused to examine the Probationary Sub Inspector to prove the said aspect. According to the learned Public Prosecutor, the recovery as deposed by PW1 and supported by PW2, the Gazetted Officer/Tahsildar, Taluk Office, Kannur as well as by PW3, an independent witness, who was present at the time of recovery of the contraband, was near the Railway gate at Thekkile Peedika, i.e. a public place. Therefore, compliance of Section 42 of the NDPS Act is not mandatory in this case. Since the prosecution case is well proved, the conviction and the moderate sentence imposed by the trial court do not require any interference. 9. Having addressed the rival contentions, the questions arise for consideration are: 1. Whether the contention raised by the learned counsel for the appellant/accused that, due to failure to produce Exts.P1 and P6 reports before the Court in time, Section 42 of the NDPS Act could be held as not complied? 2. Whether it is necessary to comply the mandate under Section 42 of the NDPS Act, when the recovery is from a public place? 3. Whether the trial court went wrong in finding that the accused committed the offence punishable under Section 20(b)(ii)(B) of the NDPS Act? 4. Whether the trial court verdict requires interference? 5. Orders to be passed? 10. Addressing point Nos.1 to 3, it is relevant to refer Section 41(2) of the NDPS Act. The same reads as under: 41. 3. Whether the trial court went wrong in finding that the accused committed the offence punishable under Section 20(b)(ii)(B) of the NDPS Act? 4. Whether the trial court verdict requires interference? 5. Orders to be passed? 10. Addressing point Nos.1 to 3, it is relevant to refer Section 41(2) of the NDPS Act. The same reads as under: 41. Power to issue warrant and authorisation- xxx xxx xxx (2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the para-military forces or the armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place. 11. Section 42 of the NDPS Act deals with power of entry, search, seizure and arrest without warrant or authorisation. The same reads as under: 42. 11. Section 42 of the NDPS Act deals with power of entry, search, seizure and arrest without warrant or authorisation. The same reads as under: 42. Power of entry, search, seizure and arrest without warrant or authorisation: (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset— (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: [Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector: Provided further that, if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. 12. Section 43 of the NDPS Act deals with the power of seizure and arrest in public place, wherein it is provided that, any officer of any of the departments mentioned in section 42 may: (a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. 13. In this matter, the recovery as deposed by PW1 and as evident from Ext.P2 seizure mahazar would show that the same was near the Railway gate at Thekkile Peedika, Kannur i.e. a public place, governed under Section 43 of the NDPS Act. When recovery is from a public place, Section 42 of the NDPS Act would not apply. Therefore, Section 42 of the NDPS Act has no application in the instant case. It is relevant to note that Exts.P1 and P6 reports under Sections 42 and 57 of the NDPS Act were given to the Circle Inspector of Police as deposed by PW1 and admitted by PW7. But, it is noticeable that, when PW1 was examined for the first time on 19.10.2005, Exts.P1 and P6 were not produced before the trial court and accordingly examination of PW1 was deferred and subsequently on 14.11.2005, Exts.P1 and P6 were produced before the Court and on 24.04.2006, PW1 was examined further. But, it is noticeable that, when PW1 was examined for the first time on 19.10.2005, Exts.P1 and P6 were not produced before the trial court and accordingly examination of PW1 was deferred and subsequently on 14.11.2005, Exts.P1 and P6 were produced before the Court and on 24.04.2006, PW1 was examined further. Thus, even if it is assumed that compliance of Section 42 of the NDPS Act is mandatory, the same also is complied in this case, since Exts.P1 and P6 reports were produced before the court and tendered in evidence. 14. It is argued by the learned counsel for the appellant/accused that delayed production of Exts.P1 and P6 reports before the court would show that the same are documents created for the purpose of fabricating this case. In fact, this contention could not succeed, since in the instant case, the recovery effected is under Section 43 of the NDPS Act. 15. In this case, the trial court relied on the evidence of PWs 1 to 3 to hold that 1.500 kilogram of contraband was seized from the accused and it was found as Ganja as per Ext.P14 chemical analysis report. During examination of PW1, he deposed that, while he was sitting at the Police station in the evening of 28.1.2005 he got secret reliable information that a person carrying ganja in a black plastic bag had come near the Thekkile Peedika railway gate. Immediately he recorded the information in the general diary, sent report to the Circle Inspector u/s 42 of the NDPS Act, and proceeded to the place with the Police party including the Probationary Sub Inspector. Ext. P1 is the report so sent to the Circle Inspector. When the Police party led by him reached near the Thekkile Peedika railway gate the accused in this case was seen standing at the side of the road near the railway gate carrying a black plastic bag in his hand. He approached the accused and expressed his intention to search his body and also to examine the bag on suspicion that ganja was being possessed by him. When he asked the accused whether he would require the presence of any Gazetted Officer or Magistrate, the accused answered in the positive, and accordingly he approached the Additional District Magistrate, Kannur. On his request, the Tahsildar John was deputed by the Additional District Magistrate to witness the search. When he asked the accused whether he would require the presence of any Gazetted Officer or Magistrate, the accused answered in the positive, and accordingly he approached the Additional District Magistrate, Kannur. On his request, the Tahsildar John was deputed by the Additional District Magistrate to witness the search. Accordingly, the Tahsildar reached at the spot along with his Junior Superintendent at about 4.15 p.m., and in his presence the body of the accused was searched on the side of the public road near the railway gate. Nothing could be seized on body search, and after body search he examined the plastic bag carried by the accused. MO1 in the said plastic bag which the accused had carried in his hands. When he opened the bag he found a paper packet in a plastic cover inside the bag, and when he opened and examined the said packet he found ganja therein. On examination he was satisfied that it was ganja, and when he got it weighed by a goldsmith, the total quantity was found having a weight of 1.500 Kgs. The accused was arrested on the spot, and the ganja was seized as per Ext.P2 seizure mahazar. A small quantity of 50 grams was taken from the ganja as sample, and it was properly packed and sealed according to law. The residue quantity was also well packed and sealed according to law. Labels containing the signature of the accused and the witnesses including the Tahsildar were affixed on the packets. MO2 is the said sample packet received from the Laboratory after analysis, and MO3 is the packet of residue ganja. The Sub Inspector also identified the signature of the accused on all the packets. He has also stated that the ganja was covered in the MO6 news paper, and the said paper packet was seen in the MO4 plastic cover inside the MO1 plastic bag. MO7 is another plastic cover seen inside the bag. The accused and the properties were taken to the Police station where Ext.P4 FIR was registered, and thereafter he sent Ext.P6 detailed report to the Circle Inspector u/s 57 of the N.D.P.S. Act. 16. MO7 is another plastic cover seen inside the bag. The accused and the properties were taken to the Police station where Ext.P4 FIR was registered, and thereafter he sent Ext.P6 detailed report to the Circle Inspector u/s 57 of the N.D.P.S. Act. 16. Apart from the evidence of PW1, the Tahsildar was examined as PW2 and he has given evidence that, as authorised by the Additional District Magistrate he had gone to witness the search of the body of the accused in this case near the railway gate at Thazhechovva, and after the search of the body of the Sub Inspector by the witnesses in his presence the body of the accused in this case was searched by the Sub Inspector. No contraband article was seized on body search, but when the Sub Inspector opened and examined the MO1 plastic bag which the accused had carried in his hands it was found containing a packet of ganja. When the Sub Inspector weighed it the total quantity was found having a weight 1.500 Kgs, and from the total quantity the Sub Inspector had taken 50 grams as sample. The sample quantity as well as the residue quantity were properly packed and sealed by the Sub Inspector, and labels containing his signature, and also that of the other witnesses and the accused were affixed on the packets. PW2 identified the MO1 sample packet and also the MO3 packet of residue ganja with the labels on it containing his signature. Thus PW2 is definite in his evidence that the MO1 plastic bag was seized by PW1 from the hands of the accused, and when PW1 opened and examined the bag it was found containing a quantity of 1.500 kg of ganja. The accused was arrested on the spot by the Sub Inspector, and the ganja was seized as per Ext.P2 mahazar in which also the Tahsildar has signed as the Officer in whose presence the search was conducted. 17. That apart, PW3, an independent witness, who put signature in Ext.P2 seizure mahazar deposed that, on the way along the road with his friend Shameen he saw the accused in this case being questioned by PW1 near the railway gate, and as requested by the Sub Inspector, he along with his friend Shameen waited there. 17. That apart, PW3, an independent witness, who put signature in Ext.P2 seizure mahazar deposed that, on the way along the road with his friend Shameen he saw the accused in this case being questioned by PW1 near the railway gate, and as requested by the Sub Inspector, he along with his friend Shameen waited there. Thereafter the Sub Inspector left the place leaving the accused in the custody of the Probationary Sub Inspector, and after some time the sub inspector and the Tahsildar reached at the spot. The Sub Inspector had also brought a goldsmith to the place. The body of the accused was searched by the Sub Inspector, but nothing was seized. Thereafter the Sub Inspector examined the MO1 plastic bag seized from the hands of the accused. When the bag was opened they saw a packet of ganja therein. The total quantity of ganja was in a paper packet, the said paper packet was put in a plastic cover, and the said plastic cover containing the packet of ganja was taken from the MO1 plastic bag. When the goldsmith weighed the ganja as asked by the Sub Inspector it was found having a weight of 1.50 Kgs, and from the total quantity the sub Inspector had taken 50 grams as sample. The sample packet and also the packet of remaining ganja were well sealed, and labels containing his signature and also signature of others were affixed on the packets. The witness identified MO2 the sample packet and also MO3 the residue packet bearing labels containing his signature. Thus PW3 is definite and consistent in evidence that the Sub Inspector had seized 1.500 Kgs of ganja from the possession of the accused, and the ganja packet was carried by the accused in his MO1 plastic bag. 18. According to the learned counsel for the accused, PW3 is cordial with the Police and his version is not believable. In the instant case, on getting information regarding possession of Ganja by the accused in a public place, after getting the same recorded in the General Diary, the Sub Inspector of Police proceeded to the place of occurrence and restrained the accused to conduct search in the presence of PW2, the Gazetted Officer and PW3, an independent witness. In the instant case, on getting information regarding possession of Ganja by the accused in a public place, after getting the same recorded in the General Diary, the Sub Inspector of Police proceeded to the place of occurrence and restrained the accused to conduct search in the presence of PW2, the Gazetted Officer and PW3, an independent witness. Though, nothing was recovered on searching the body of the accused, when the bag possessed by the accused was searched, 1.500 kilogram of Ganja was seized, which was measured by PW4. 19. During cross-examination of PWs 1 to 3, nothing extracted to disbelieve the evidence given by them. The trial court also found that nothing extracted to disbelieve the evidence given by PW2, the Tahsildar and PW3, an independent witness, to be hostile to the accused to say lie before the Court, as contended by the accused. 20. Even though, it is argued by the learned counsel for the accused that, the accused was nabbed on 25.01.2005 and detained in custody till 28.01.2005, for getting money for the purpose of cutting trees from the property of the accused as bribe, as deposed by the accused himself as DW3, during court questioning he deposed that bribe was asked by the Probationary Sub Inspector of Police for relieving the accused from the crime registered under the NDPS Act (the present case). 21. It is pointed out by the learned Public Prosecutor that, the accused was charge sheeted for having committed the offence punishable under Section 20(b)(i) of the NDPS Act vide Crime No.210/1998 of Tirur Police Station and was sentenced for a period of three years and to pay fine of Rs.10,000/- as per Ext.P13 judgment in S.C. No.86/1991. 22. It is pointed out by the learned counsel for the accused that in appeal, this Court set aside Ext.P13 judgment arose out of Crime No.210/1998 of Tirur Police Station and acquitted the accused in the said case. He has given reliance on the evidence of PW7 during cross- examination, in this regard. On perusal of the evidence given by PW7, what is deposed by him is that, he did not know about the acquittal of the accused in the said case and he did not enquire about the appeal. 23. He has given reliance on the evidence of PW7 during cross- examination, in this regard. On perusal of the evidence given by PW7, what is deposed by him is that, he did not know about the acquittal of the accused in the said case and he did not enquire about the appeal. 23. In this matter, the crucial question to be considered is whether non compliance of Section 42 of the NDPS Act, would go to the root of the matter? As already discussed, in the instant case, compliance of Section 42 of the NDPS Act is not mandatory. Since the recovery was from a public place, Section 43 of the NDPS Act would apply. Otherwise, Section 42 of the NDPS Act was complied as already discussed. 24. Section 20 of the NDPS Act provides that: 20. Punishment for contravention in relation to cannabis plant and cannabis — Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder — (a) cultivates any cannabis plant; or (b) produces, manufactures, possesses sells, purchases, transports, imports inter- State, exports inter-State or uses cannabis, shall be punishable - (i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; (ii) where such contravention relates to sub-clause (b) — (A) and involves small quantity, with rigorous imprisonment for a term which may extend to [one year], or with fine which may extend to ten thousand rupees, or with both; (B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees; (C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. 25. 25. Section 22(b) deals with Punishment for contravention in relation to psychotropic substances, wherein it is provided that, whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter- State or uses any psychotropic substance shall be punishable — (a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to [one year], or with fine which may extend to ten thousand rupees, or with both; (b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees; (c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. 26. In this matter, the quantity of Ganja seized from the accused is 1.500 kilogram, i.e. intermediate quantity dealt under Section 22(b) of the NDPS Act. 27. Regarding Ext.X1, the call details alleged to be in between the Probationary Sub Inspector and the house member of the accused, as pointed out by the learned counsel for the accused, the same is during the period from 25.01.2005 to 28.01.2005. But, what is the purpose for which the calls are made is not known and the evidence given by DW3 in this regard is also contrary as already observed. The best person to speak about the same is the Probationary Sub Inspector, who made the call. Although, he was cited as a prosecution witness, the prosecution did not examined him. Then also, the accused could very well examine him as a defence evidence to prove his case. But no such course of action is seen adopted by the accused. 28. Although, he was cited as a prosecution witness, the prosecution did not examined him. Then also, the accused could very well examine him as a defence evidence to prove his case. But no such course of action is seen adopted by the accused. 28. In the case at hand, as already discussed, red handed recovery of 1.500 kilogram of Ganja from the possession of the accused from a public place is proved by the evidence of PWs 1 to 3 and out of which, PW2 is a Gazetted Officer and PW3 is an independent witness. Merely relying on Ext.X1, the learned counsel for the appellant/accused argued that the accused has been trapped in this case with ulterior motives, without adducing cogent evidence to support the said contention. Further, the evidence given by DW3, the accused himself, in this regard is absolutely contrary. Therefore, the trial court rightly found that the accused herein committed the offence punishable under Section 20(b)(ii)(B) of the NDPS Act and thereby convicted the accused. Thus, the conviction imposed by the trial court does not require any interference. 29. Ultimately, the the learned counsel for the appellant/accused sought leniency in the matter of sentence. 30. Considering the facts and circumstances of this case, I am of the view that some leniency in the matter of sentence can be considered. Accordingly, this appeal is allowed in part. The conviction stands confirmed and sentence stands modified, whereby the accused is sentenced to undergo rigorous imprisonment for a period of 18 months and to pay fine of Rs.10,000/- (Rupees Ten Thousand Only). In default of payment of fine, the accused shall undergo rigorous imprisonment/default imprisonment for a period of two months. The accused is directed to appear before the trial court on 02.07.2025 to undergo the modified sentence. In default to do so, the trial court is directed to execute the sentence, as per law, without fail. 31. Registry is directed to forward a copy of this judgment to the trial court for information and compliance, forthwith.