Kerala High Court
Mushaque Ahammed @ Muthu vs The Sub Inspector Of Police on 21 May, 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
THURSDAY, THE 21ST DAY OF MAY 2020 / 31ST VAISAKHA, 1942
CRL.A.No.30 OF 2020
AGAINST THE JUDGMENT IN SC (NDPS) NO.160/2018 DATED 21-12-2019
OF SPECIAL COURT (NDPS ACT CASES), VADAKARA
APPELLANT/ACCUSED NOS. 1 AND 2:
1 MUSHAQUE AHAMMED @ MUTHU
AGED 33 YEARS
S/O. SHAIK ALI, MUBARAK MANZIL, KUKKAR, MANGALPADI,
KASARAGODE.
2 IBRAHIM SIKDDIQUE @ SIDDIQUE
AGED 28 YEARS
S/O. MOIDEEN, SIDDIQUE MANZIL, MANNAKUZHI HOUSE,
KODIBEL, KASARAGODE.
BY ADVS.
SRI.T.G.RAJENDRAN
SRI.T.R.TARIN
RESPONDENTS/COMPLAINANT & STATE:
1 THE SUB INSPECTOR OF POLICE,
NILAMBUR POLICE STATION-679329 MALAPPURAM DISTRICT.
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682 031.
SRI AJITH MURALI-PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
05-03-2020, THE COURT ON 21-05-2020 DELIVERED THE FOLLOWING:
Crl.A.No.30/2020
2
"CR"
R.NARAYANA PISHARADI, J
************************
Crl.A.No.30 of 2020
--------------------------------------------
Dated this the 21st day of May, 2020
JUDGMENT
The appellants are the first and the second accused in the case S.C.No.160/2018 on the file of the Court of the Special Judge (NDPS Act Cases), Vatakara.
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, in brief, is as follows: On 19.06.2018, at 13.25 hours, K.M.Biju (PW1), Inspector of Police, Nilambur got reliable information that two persons were carrying ganja in the car KL-21G-2673. PW1 reduced the information received by him into writing and sent it to his superior officer and Crl.A.No.30/2020 3 proceeded to the spot with police party. He reached the spot by 13.50 hours and found the car parked at the side of Nilambur- Kulakandam road. He saw the first accused sitting in the driver's seat and the second accused sitting in the rear seat of the car. There was a bag on the side of each of the accused. PW1 served notice on the accused and made them aware of their right to be searched in the presence of a gazetted officer or a Magistrate. The accused wanted the presence of another officer for conducting the search. PW1 obtained the presence of the Tahsildar (PW5), Nilambur and inspected the two bags in the presence of PW5. The bag, which was found held by the first accused with his hand, contained 20.500 kilograms of ganja. The bag, which was found held by the second accused with his hand, contained 18.000 kilograms of ganja. PW1 arrested the two accused and seized the ganja as per Ext.P4 mahazar. On returning to the police station, PW1 registered Ext.P5 first information report in the matter.
4. The investigation of the case was conducted by PW7 Deputy Superintendent of Police. After completing the Crl.A.No.30/2020 4 investigation of the case, he filed final report against the two accused for the offences punishable under Sections 20(b)(ii)(C) and 29 of the Act.
5. Both accused pleaded not guilty to the charge framed against them by the Special Court under Sections 8(c) and 20(b)
(ii)(C) read with 29 of the Act. During the trial of the case, the prosecution examined PW1 to PW9 and marked Exts.P1 to P22 documents and MO1 to MO5 material objects. No oral evidence was adduced by the accused but Ext.D1 document was marked on their side.
6. The Special Court found both accused guilty of the offence punishable under Section 20(b)(ii)(C) of the Act and convicted them thereunder and sentenced them to undergo rigorous imprisonment for a period of twelve years each and to pay a fine of Rs.1,00,000/- each and in default of payment of fine, to undergo rigorous imprisonment for a period of six months each. Conviction and sentence entered against the two accused in the case by the Special Court are challenged in this appeal. Crl.A.No.30/2020 5
7. Heard learned counsel for the appellants and also the learned Public Prosecutor and perused the records.
8. The prosecution examined nine witnesses. PW1 is the Inspector of Police who detected the offence. PW2 is the registered owner of the car in which the accused and the ganja were allegedly found by PW1. PW3 is the Village Officer who prepared Ext.P14 sketch of the scene of occurrence. PW4 is the Assistant Motor Vehicles Inspector who inspected the car and issued Ext.P15 report and Ext.P16 registration particulars of that vehicle. PW5 is the Tahsildar who was summoned by PW1 to witness the search. PW6 is the Sub Inspector who was present in the police party led by PW1. PW7 is the Deputy Superintendent of Police who conducted the investigation of the case. PW8 is the independent witness examined by the prosecution to prove the occurrence. PW9 is the owner of the shop from where weighing balance was obtained by the police party.
9. In order to appreciate the contentions raised by the learned counsel for the appellants, it would be advantageous to give a brief summary of the testimony of PW1. His testimony is Crl.A.No.30/2020 6 as follows: On 19.06.2018, at 13.25 hours, while he was in the police station, he received reliable information that two persons were sitting inside the car KL-21G-2673 with ganja in their possession. The information was that the car was on Nilambur- Kulakandam road. He prepared Ext.P1 report under Section 42 of the Act and entered it in the general diary and sent the report to the Deputy Superintendent of Police. Thereafter, he proceeded to the spot with police party in two jeeps and reached the spot at the place Kulakandam at about 13.50 hours. The car was found there parked on the northern side of the road. He saw a person sitting in the driver's seat of the car. There was a big bag, black in colour, on the left side of that person. PW1 identified in the court the first accused as the person who was found sitting in the driver's seat. The first accused had placed his hand on the bag on his left side. There was another person sitting in the rear seat of the car. PW1 identified in the court the second accused as the person who was found in the rear seat of the car. There was a big bag, black in colour, on the right side of the second accused and he had placed his hand on that bag. PW1 called two persons Crl.A.No.30/2020 7 who came on a motor cycle as witnesses. He told the accused that search had to be conducted to ascertain whether there was ganja in their possession and that they had the right to demand the presence of a gazetted officer or a Magistrate for that purpose and he asked them whether they wanted to exercise that right. The accused answered him in the positive. Ext.P2 series are the documents prepared by him in this regard. PW1 then prepared a report and sent it to the Tahsildar through Firoz, the Civil Police Officer. He also directed Firoz to bring a weighing balance. The Tahsildar (PW5) reached the place at about 15.10 hours. PW1 then inspected the bag which was held by the first accused. There were ten packets in that bag. When the packets were opened and examined, it was found that they contained ganja. PW1 then inspected the bag which was held by the second accused. There were ten packets in that bag also. When the packets were opened and examined, it was found that they also contained ganja. Since the accused had no permit or licence to possess ganja, PW1 arrested them at 16.00 hours. Ext.P3 series are the arrest memos prepared by him. They bear his signature, Crl.A.No.30/2020 8 the signature of each accused and also the witnesses. The ganja found in the possession of each accused was put in two polythene bags each and sealed and weighed after separately ascertaining the weight of the polythene bags. The weight of the ganja found in the possession of the first accused was 20.500 kilograms. The weight of the ganja found in the possession of the second accused was 18.000 kilograms. PW1 seized the ganja as per Ext.P4 mahazar.
10. PW1 also gave evidence that he returned to the police station and registered Ext.P5 F.I.R. He prepared Ext.P6 report under Section 57 of the Act and sent it to his superior officer. PW1 also gave evidence that he produced the material objects before the Magistrate and that Ext.P7 is the inventory certified by the Magistrate. He also gave evidence regarding the taking of samples in the presence of the Magistrate and production of the material objects before the Special Court.
11. PW5 Tahsildar and PW6 Sub Inspector have also given evidence regarding the seizure of ganja from the possession of the accused. PW8, the independent witness, also supported the Crl.A.No.30/2020 9 prosecution case. The evidence of these witnesses corroborates the testimony of PW1 regarding the occurrence.
12. PW1 has sworn to the entire incident in necessary details. His evidence, with regard to the seizure of ganja from the possession of the accused, is corroborated by the evidence of PW5,PW6 and PW8. The recitals in Ext.P4 mahazar, the contemporaneous document prepared by PW1 at the spot of the occurrence, also corroborate his testimony regarding the occurrence. There is no striking improbability or material contradiction or discrepancy in the evidence of PW1, PW5, PW6 and PW8 regarding the seizure of ganja from the possession of the two accused persons.
13. Identification of the two accused in the court by PW1, as the persons who were found in the car with the bags containing ganja, practically remains unchallenged in his cross- examination.
14. Ext.P20 is the certificate of chemical examination received in respect of the samples sent from the court to the Crl.A.No.30/2020 10 Regional Forensic Science Laboratory. Ext.P20 shows that the samples which were forwarded to the laboratory through the court were found to be ganja.
15. In the written statements filed by the accused under Section 313 Cr.P.C, their plea is as follows: On 18.06.2018, while they were travelling on a motor cycle and when they reached the place Bandiyode in Kasaragode District, a car which came from behind them hit on their motor cycle and an altercation occurred between them and the persons who were travelling in the car. By that time another car came and the persons who were in that car interfered in the matter and an altercation took place with them also. They were police officers in civil dress and they forcibly took the accused to Nilambur police station and falsely implicated them in the case. The plea raised by the accused in this regard is narrated in detail in paragraph 16 of the judgment of the trial court and there is no need to repeat here the details.
16. Not even a suggestion was made to PW1 in the cross- examination with regard to the story which was put forward by the accused in the written statements filed by them. No oral Crl.A.No.30/2020 11 evidence was adduced by the accused to prove their plea. If the plea of the accused is to be accepted, it has to be found that PW5 Tahsildar, PW6 Sub Inspector and PW8, the public witness have perjured themselves with a view to implicate the accused in a false case of this nature and with a view to assist PW1 in an endeavour to settle a personal score with the accused. Nothing has been brought out in the cross-examination of these witnesses to reach such a conclusion.
17. Ext.D1 is the extract of the general diary maintained in the Nilambur police station for the period from 17.06.2018 to 19.06.2018. PW1 has stated on cross-examination that he was on duty on 18.06.2018 but he could not remember where he was on duty on that day. The entries in Ext.D1 would show that PW1 was not in charge of Nilambur police station on 18.06.2018. It does not mean that he was in Kasaragod District on that day. No such assumption is possible especially when PW1 was not confronted with the entries in Ext.D1 and when no opportunity was granted to him to offer any explanation or clarification with regard to those entries. If Ext.D1 was summoned and produced Crl.A.No.30/2020 12 only after the cross-examination of PW1, the defence should have taken steps to recall him and further cross-examine him. It was open to the defence to request for recalling the witness for the purpose of further cross-examination to impeach his veracity on the strength of the document which came on record subsequently (See State of Rajasthan v. Teja Ram : AIR 1999 SC 1776). No such course was adopted. In this context, it is also to be noted that PW1 was the Inspector of police (Circle Inspector), Nilambur and not the Sub Inspector of Nilambur police station. There is nothing to show that the only police station under the jurisdiction of PW1 was the Nilambur police station.
18. The entry made as serial No.64 in Ext.D1 general diary would show that PW1 had gone out of Nilambur police station at 08.16 hours on 19.06.2018. The entry made as serial No.68 in Ext.D1 general diary would show that PW1 was in that police station at 13.35 hours on that date. However, there is no entry in Ext.D1 as to the time at which PW1 returned to the police station after going out at 08.16 hours. Learned counsel for the Crl.A.No.30/2020 13 appellants would invite the attention of this Court to the above aspect and contend that the testimony of PW1 that he received information regarding the offence at 13.25 hours on that day at the police station cannot be true. Again, no question was put to PW1 during the cross-examination in this regard. Ext.D1 contains entry regarding receipt of information by PW1 at 13.25 hours. Then, as noticed earlier, without granting any opportunity to PW1 to clarify or explain the position, no inference adverse to the prosecution cannot be made.
19. When the defence did not put any question to the witness in the cross-examination on a material point, it cannot subsequently raise any grievance on such point (See Gian Chand v. State of Haryana : AIR 2013 SC 3395). When it is intended to suggest that a witness is not speaking the truth on a point, it is absolutely essential to direct his attention to the disputed facts and grant him opportunity to offer his explanation on that point (See State of U.P v. Nahar Singh : AIR 1998 SC 1328, Vinod Kumar v. State of Haryana : AIR 2015 SC 1032). It is a settled legal proposition that in case the question Crl.A.No.30/2020 14 is not put to the witness in cross-examination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised (See Paulmeli v. State of Tamil Nadu: (2014) 13 SCC 90).
20. It is well-settled that the prosecution has to stand on its own legs and is required to prove the charge against the accused by adducing cogent and convincing evidence. However, where the defence has not availed the opportunity to put its specific case in the cross-examination of the prosecution witnesses, especially when it alleges that the witnesses have committed perjury with a view to falsely implicate the accused in a serious crime, omission to challenge the evidence given in examination-in-chief on a material or essential point by cross-examination, would result in its failure to impeach the creditworthiness of the prosecution witnesses. If there is a particular fact stated by the prosecution witness in examination-in-chief requires explanation by that witness and the defence failed to ask questions in the cross- examination of such witness on that particular aspect, correctness of such fact cannot be later challenged by the Crl.A.No.30/2020 15 defence, unless correctness or existence of such fact is inherently improbable.
21. Exts.P3 and P3(a) are the arrest memos prepared by PW1 at the time of arresting the appellants/accused. The date and time of the arrest are stated in these documents as 19.06.2018 and 16.00 hours. PW1 has stated that the witnesses and the accused put their signature in the arrest memos. PW8, the independent witness also identified his signature in the arrest memos. The accused have no case that Exts.P3 and P3(a) documents do not bear their signature. At the same time, not even a suggestion was made to PW1 in the cross-examination that they had put their signature in Exts.P3 and P3(a) documents not at the spot of the occurrence but at the police station or some other place. In such circumstances, it is established that the accused were arrested from the spot of the occurrence and not from any other place.
22. In the aforesaid circumstances, there is no sufficient ground to find that the police officers have fabricated the case against the appellants with a view to settle any personal score Crl.A.No.30/2020 16 with them. There is no sufficient ground to disbelieve the evidence of PW1, which also stands corroborated by the testimony of other witnesses, regarding the seizure of ganja from the possession of the appellants.
23. The evidence of PW4 Assistant Motor Vehicles Inspector along with Ext.P15 report issued by him would show that, the registration number KL-21G-2673 exhibited on the car in which the accused were found, was fake and the real registration number of that vehicle was KL-21C-2673 and that PW2 was the registered owner of the car. PW2 gave evidence that she had sold the vehicle to one Ani in the year 2014 but she could not produce any documents in that regard. However, the question who was the real owner of the car is quite immaterial. What is material is the fact that the accused and the ganja were found in the car.
25. Learned counsel for the appellants also raised the following contentions: (1) The requirement under Section 42(2) of the Act was not complied with by PW1. (2) There was no proper compliance with the requirement of the provisions contained under Section 50 of the Act. (3) The report sent by Crl.A.No.30/2020 17 PW1 under Section 57 of the Act was not proper. (4) Samples were taken in the absence of the accused and it has caused prejudice to them. (5) Residue of the contraband substance, which remained after taking the samples, was not produced before the court during the trial of the case.
26. Section 42(1) of the Act provides for entry, search, seizure and arrest without warrant or authorisation. According to this provision, where an empowered officer, who has reason to believe from personal knowledge or information given by any person and who has taken down in writing that any narcotic drug or psychotropic substance in respect of which an offence punishable under the Act has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building or conveyance or enclosed place, may, between sunrise and sunset, enter into and search any such building, conveyance or place. Section 42(2) of the Act provides that 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- Crl.A.No.30/2020 18 two hours send a copy thereof to his immediate official superior.
27. Prevention of abuse of the power of search under Section 42 of the Act is the purpose behind the mandatory provision contained in Section 42(2) of the Act. It is now well- settled that compliance with the provisions contained in Sections 42(1) and 42(2) of the Act are mandatory, in cases where these provisions are applicable (See Karnail Singh v. State of Haryana : (2009) 8 SCC 539, Sukhdev Singh v. State of Haryana : AIR 2013 SC 953 and Darshan Singh v. State of Haryana : (2016) 14 SCC 358).
28. In the present case, the evidence of PW1 is that, on 19.06.2018, at 13.25 hours, while he was in the police station, he received reliable information that two persons were sitting inside the car KL-21G-2673 with ganja in their possession. The information was that the car was in Nilambur-Kulakandam road. PW1 has given evidence that he prepared Ext.P1 report under Section 42 of the Act and entered it in the general diary and sent the report to the Deputy Superintendent of Police, before proceeding to the spot. Ext.P4 mahazar also contains recital to Crl.A.No.30/2020 19 this effect.
29. Ext.P1 report contains endorsement by PW7 Deputy Superintendent of Police that he received it on 19.06.2018 itself. PW7 has given evidence also with regard to receipt of Ext.P1 report.
30. Learned counsel for the appellants has contended that the information, which was received by PW1 and which was entered in the general diary, is the information reduced into writing by PW1 under Section 42(1) of the Act and that Ext.P1 is not the information taken down in writing by PW1 under that provision. Therefore, learned counsel would contend that sending of Ext.P1 report by PW1 to his superior officer did not satisfy the requirement under Section 42(2) of the Act. Learned counsel would further contend that sending a copy of the general diary, which contained the information received, to the superior officer of PW1 would only satisfy the requirement under Section 42(2) of the Act. Learned counsel has placed reliance upon the decision of the Apex Court in State of Rajasthan v. Jag Raj Singh : AIR 2016 SC 3041 in support of this contention.
Crl.A.No.30/202020
31. In Jag Raj Singh (supra), when secret information was received by the Station House Officer, as in the present case, he prepared a memo regarding the information and also entered the information in the general diary. But what was sent to the superior officer was another report prepared by him in which there was also discrepancy with regard to the information received. The High Court set aside the conviction and sentence entered against the accused by the trial court, stating as follows:
"From the above examination, it is not found that Ext.P-14 the information which is stated to be received from the informer under Section 42(2) of Act or Ext.P-21, the information given by the informer which is stated to be recorded in the Rozanamacha, copy whereof has been sent to C.O. Nohar, who was the then Senior Officer, Rather, Ext. P-15, the letter which was sent, it is not the copy of Ext.P-14, but it is the separate memo prepared of their own. From the above examination, it is not found in the present case that Section 42 (2) of Act, 1985 is complied with."
The Apex Court dismissed the appeal filed by the State against the acquittal of the accused, holding as follows: Crl.A.No.30/2020 21
"What Section 42(2) requires is that where an officer takes down an information in writing under sub-section (1) he shall sent a copy thereof to his immediate officer senior. The communication Exh. P-15 which was sent to Circle Officer, Nohar was not as per the information recorded in Exh. P-14 and Exh.P-24. Thus, no error was committed by the High Court in coming to the conclusion that there was breach of Section 42(2)".
(emphasis supplied)
32. The decision in Jag Raj Singh (supra) has no application to the facts of the present case. Here, what was sent by PW1 to his superior officer was not a separate memorandum prepared by him. He had sent Ext.P1 itself to his superior officer. Ext.P1 is the information taken down by him in writing. There is no substance in the contention of the learned counsel for the appellants that the entry made in the general diary is the secret information reduced into writing by PW1. In these circumstances, the contention raised by the appellants regarding non-compliance with the requirement under Section 42(2) of the Act is without Crl.A.No.30/2020 22 any merit and it is liable to be rejected.
33. Moreover, this a case in which search and seizure were made by an empowered officer, who is a gazetted officer. PW1 was the Inspector of Police and he was a gazetted officer. When the search and seizure are conducted by the empowered officer, who is a gazetted officer himself, Section 42 of the Act has no application (See Prabhulal v. Assistant Director, Director of Revenue Intelligence : AIR 2003 SC 4311, State of Haryana v. Jarnail Singh : AIR 2004 SC 2491, Srinivas Goud v. State of Andhra Pradesh : AIR 2005 SC 3647, Yasihey Yobin v. Department of Customs : (2014) 13 SCC 344 and Sekhar Suman Verma v. Superintendent of N.C.B :
AIR 2016 SC 3193).
34. 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 in conducting the search.
35. In the first place, the evidence of PW1, along with Exts.P2 and P2(a) notices separately given by him to the Crl.A.No.30/2020 23 accused, shows that he had made the accused aware that they had the right to get the presence of a gazetted officer or a Magistrate for conducting the search. The presence of an independent gazetted officer (PW5 Tahsildar) was obtained also.
36. 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. In case, the recovery of the contraband substance is made from a container being carried by the individual, the provisions of Section 50 of the Act would not be attracted. 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 Rajendra v. State of M.P : AIR 2004 SC 1103, State of Himachal Pradesh v. Pawan Kumar : AIR 2005 SC 2265, State of Rajasthan v. Daulat Ram :Crl.A.No.30/2020 24
AIR 2005 SC 3816, Jarnail Singh v. State of Punjab: AIR 2011 SC 964, Ram Swaroop v. State : AIR 2013 SC 2068 and Kulwinder Singh v. State of Punjab : AIR 2015 SC 2488).
37. In the instant case, the ganja was seized on conducting search of the bags held by the accused. The evidence of PW1 shows that, after conducting search of the bags, he conducted search of the body of the two accused and then their mobile phones, some money and their identity cards were seized. No contraband article was seized on conducting search of the person or body of the two accused.
38. In State of Punjab v. Baljinder Singh : AIR 2019 SC 5298, 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 Crl.A.No.30/2020 25 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".
39. Thus, if a person is found to be in possession of a vehicle, bag, container etc and search of the body of the person as well as the vehicle or the bag or the container is made and if the contraband substance is recovered not on conducting search of the body of the person but from the vehicle or the container, then non-compliance with the requirements under Section 50 of the Act would be of no consequence and the accused will not be entitled to be acquitted on that ground. The dictum laid down in Baljinder Singh (supra) squarely applies to the facts of the present case.
Crl.A.No.30/202026
40. In this context, learned counsel for the appellants has invited the attention of this Court to the decision of the three- Judge Bench of the Supreme Court in Sk.Raju alias Abdul Haque alias Jagga v. State of West Bengal: AIR 2018 SC 4255 wherein it has been held that as soon as the search of a person takes place, the requirement of mandatory compliance with Section 50 of the Act would be attracted, irrespective of whether contraband is recovered from the person of the detainee or not. Learned counsel would point out that Baljinder Singh (supra) does not refer to the earlier decision in Raju alias Abdul Haque (supra).
41. Very recently, in Than Kunwar v. State of Haryana:
(02.03.2020-SC) : MANU/SC/0242/2020, the Apex Court has taken note of the divergent views in Baljinder Singh (supra) and Raju alias Abdul Haque (supra). After making a reference to the decision of the Constitution Bench in State of Punjab v. Baldev Singh : (1999) 6 SCC 172, in Than Kunwar (supra) it has been held as follows:Crl.A.No.30/2020 27
"As already noticed, we are not oblivious of the observation which has been made in the other three Judge Bench judgment of this Court in Sk. Raju (supra), which it appears, was not brought to the notice to the Bench which decided the case later in Baljinder Singh (supra). We notice however that the later decision draws inspiration from the Constitution Bench decision in Baldev Singh (supra). We also notice that this is not a case where anything was recovered on the alleged personal search. The recovery was effected from the bag for which it is settled law that compliance with Section 50 of the Act is not required".
42. In the instant case also no contraband substance was recovered on conducting search of the body of the appellants and therefore, this Court is inclined to follow the decisions in Baljinder Singh (supra) and Than Kunwar (supra) and hold that the provision contained in Section 50(1) of the Act does not apply to the facts of the case.
43. Regarding the contention with regard to Section 57 of the Act, it is to be noted that PW1 has given evidence that he sent Ext.P6 report under Section 57 of the Act to his superior officer. PW7 has given evidence that he had received Ext.P6 Crl.A.No.30/2020 28 report. On a perusal of Ext.P6 report, it can be seen that it contains a narration of everything that took place from the time of receipt of information by PW1 till the registration of Ext.P5 F.I.R in the matter.
44. Ext.P6 report is dated 20.06.2018. The endorsement made by the Deputy Superintendent of Police on it shows that he had received it on the same day.
45. Moreover, when substantial compliance of the requirement under Section 57 of the Act is made, no question of prejudice to the accused arises (See Mohanlal v. State of Rajasthan : AIR 2015 SC 2098 ).
The Apex Court has also held in various decisions that compliance with the provision contained in Section 57 of the Act is not mandatory (See Babubhai
Odhavji Patel v. State of Gujarat : AIR 2006 SC 102 and Bahadur Singh v. State of Haryana : (2010) 4 SCC 445).
46. PW1 has deposed that he produced the ganja and the other material objects before the Judicial First Class Magistrate Crl.A.No.30/2020 29 with Ext.P7 inventory and that the Magistrate certified the inventory. He has also stated that two samples each were taken from the ganja seized from the possession of each of the accused in the presence of the Magistrate as per Ext.P7 mahazar. Ext.P7 mahazar bears the endorsement by the learned Magistrate that the samples were taken in his presence.
47. Learned counsel for the appellants has contended that samples should have been taken at the spot in the presence of the accused and that taking of samples in the absence of the accused was irregular and improper and it has caused prejudice to the accused. There is no merit in this contention. Section 52A of the Act provides for drawing samples in the presence of the Magistrate and it also provides that any list of samples so drawn and certified by the Magistrate shall be treated as primary evidence in respect of the offence. In Union of India v. Mohanlal : (2016) 3 SCC 379, the Supreme Court has held as follows:
"In other words, the process of drawing of samples has to be in the presence and under the Crl.A.No.30/2020 30 supervision of the Magistrate and the entire exercise has to be certified by him to be correct. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-section (2) and (3) of Section 52A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure".
48. In the light of the dictum laid down in Mohanlal (supra), the contention raised by the learned counsel for the appellants regarding the irregularity and illegality in the procedure adopted for taking the samples, does not merit acceptance.
49. Learned counsel for the appellants has also contended that the residue of the ganja, after taking the samples, was not produced and tendered in evidence during the trial of the case and it has caused prejudice to the accused.
Crl.A.No.30/202031
50. In the present case, the judgment of the trial court reveals that the residue of the ganja was not produced and exhibited during the trial of the case. But, the entire quantity of ganja seized was produced before the Magistrate on the next day of the occurrence by the detecting officer with inventory and the inventory was certified by the Magistrate as correct. The samples were taken in the presence of the Magistrate. Ext.P8 mahazar shows that the packets containing the residue were then sealed by using the seal of the Magistrate's Court. The material objects, including the residue, were produced before the Special Court on 22.06.2018 as per Ext.P10 property list. PW1 has given evidence that the residue was in his custody till that time. Ext.P21 series extracts of the entries in the general diary for the dates 20.06.2018 and 22.06.2018 would also show that the residue was in the custody of PW1 after the steps taken on 20.06.2018 under Section 52A of the Act till it was sent to the Special Court on 22.06.2018. The endorsement made by the Special Judge on Ext.P10 shows that the packets containing the residue were ordered to be returned to PW1.
Crl.A.No.30/202032
51. This is a case in which the inventory of the articles seized was certified by the Magistrate under Section 52A of the Act. As per Section 52A(4) of the Act, the inventory certified by the Magistrate constitutes primary evidence in respect of the offence. In such a case, production of the bulk quantity of the contraband substance at the time of the trial of the case is not necessary.
52. In Pavithran v. State of Kerala : 2018 (1) KHC 399 : 2018 (1) KLT 517, this Court has held as follows:
"The very purpose of Section 52A is to ensure that the contraband substance is disposed of under the supervision of a Magistrate and if the Magistrate follows the mandate under Section 52A, then the certificate issued by him is per se admissible in evidence and it is not necessary for the police or the investigating agency to produce the bulk seized material which is the case property before the Court. In case Section 52A is not complied with and the seized material is not destroyed, then it is the duty of the prosecution to produce the same before the trial court during the stage of trial".Crl.A.No.30/2020 33
53. Very recently, in State of Rajasthan v. Sahi Ram :
AIR 2019 SC 4723, the Supreme Court has held as follows:
"If the seizure of the material is otherwise proved on record and is not even doubted or disputed the entire contraband material need not be placed before this Court. If the seizure is otherwise not in doubt, there is no requirement that the entire material ought to be produced before the Court. At times the material could be so bulky, for instance as in the present material when those 7 bags weighed 223 kgs that it may not be possible and feasible to produce the entire bulk before the Court. If the seizure is otherwise proved, what is required to be proved is the fact that the samples taken from and out of the contraband material were kept intact, that when the samples were submitted for forensic examination the seals were intact, that the report of the forensic experts shows the potency, nature and quality of the contraband material and that based on such material, the essential ingredients constituting an offence are made out".
54. Again, in Than Kunwar (supra), after surveying the case law on the issue, the Apex Court has re-iterated the principle that, if the seizure is otherwise not in doubt, there is no Crl.A.No.30/2020 34 requirement that the entire material ought to be produced before the Court.
55. In the present case, there can be no doubt with regard to the fact that the samples taken from the very same substance seized from the possession of the accused were forwarded to forensic examination. The link evidence is complete in this case and it does not admit of any doubt. In such circumstances, when primary evidence under Section 52A(4) of the Act regarding the contraband material seized is available, non-production of the bulk quantity of residue before the court at the time of the trial of the case is of no consequence.
56. Conscious possession of the ganja by the appellants stands established from the evidence adduced by the prosecution in the case. The bags containing the ganja were found in the car very near to the accused. There can be no doubt with regard to the fact that the accused were in conscious possession of the contraband article.
Crl.A.No.30/202035
57. The quantity of ganja which has been found in the exclusive possession of the second accused and seized from him is 18.000 kilograms. Still, the trial court convicted him of the offence punishable under Section 20(b)(ii)(C) of the Act on the ground that the total quantity of ganja seized from the possession of the two accused was 38.500 kilograms and it constituted commercial quantity. Learned counsel for the appellants contended that conviction entered against the second accused for an offence under Section 20(b)(ii)(C) of the Act is illegal and improper since no conspiracy to commit the offence was proved by the prosecution.
58. Section 29(1) of the Act states that whoever abets, or is a party to a criminal conspiracy to commit an offence punishable under Chapter IV of the Act, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in Section 116 of the Indian Penal Code, be punishable with the punishment provided for the offence. Crl.A.No.30/2020 36
59. The trial court has found that the prosecution could not prove any conspiracy to commit the offence under Section 20(b)
(ii)(C) of the Act. However, the trial court found that the two accused were found inside a private car and they were in possession of both bags containing ganja.
60. In my view, the above approach adopted by the trial court is erroneous. The specific case of the prosecution is that the first accused was having in his possession 20.5000 kilograms of ganja and that the second accused was having in his possession 18.000 kilograms of ganja. The prosecution failed to prove any conspiracy between the accused to commit an offence under Section 20(b)(ii)(C) of the Act. As per Entry 55 of the Notification dated 19.10.2001 issued by the Central Government, which deals with ganja, small quantity has been mentioned as 1000 grams and commercial quantity has been mentioned as twenty kilograms. In such circumstances, the second accused could only be convicted for having in his possession intermediate quantity of ganja and not for having possession of commercial quantity of the contraband material. Crl.A.No.30/2020 37
61. The decision of the Apex Court in Amarsingh Ramjibhai Barot v. State of Gujarat : AIR 2005 SC 4248 supports the above view. It was a case in which the police intercepted two persons by name Amarsingh and Danabhai, when they alighted from a jeep and when they were going to a hotel. The police recovered 920 grams of opium from the plastic bag held by Amarsingh and 4.250 kilograms of opium from Danabhai. Amarsingh and Danabhai were charged with offences punishable under Sections 15, 17 and 18 read with Section 29 of the Act and put up for trial. The trial court held that the prosecution had proved that both the accused were guilty of individually and jointly possessing 920 grams of opium and 4.250 kilograms of opium without any pass or permit and therefore, they were liable to be convicted for the offences punishable under Sections 17 and 18 read with Section 29 of the Act. Both accused filed appeals. During the pendency of the appeal, Danabhai died. In the appeal filed by Amarsingh, the High Court, found that conviction against him under Sections 17 and 18 read with Section 29 of the Act was not correct. On the other hand, Crl.A.No.30/2020 38 the High Court came to the conclusion that he was liable to be convicted under Section 21(c) and also under Section 21(c) read with Section 29 of the Act, for individually being in possession of 920 grams of opium and for being jointly, in conspiracy with the deceased Danabhai, in possession of 4.250 kilograms of the prohibited substance. In the view of the High Court, the total quantity of prohibited substance recovered (personally from the appellant Amarsingh and also from the joint possession of the two accused) being more than commercial quantity, the appellant Amarsingh was liable to be awarded with the minimum punishment of rigorous imprisonment of ten years and fine of Rs.1,00,000/-. The High Court also took the view that, even if the quantity of 920 grams recovered from the appellant Amarsingh alone were to be considered, it would warrant conviction under Section 21(c) of the Act. The Supreme Court upheld the finding of the High Court that the appellant Amarsingh is liable to be convicted for an offence under Section 21(c) of the Act for the reason that he was individually found having in possession of commercial quantity of the contraband substance. Crl.A.No.30/2020 39 But the Apex Court held as follows:
"It is true that the High Court proceeded on the footing that there was a criminal conspiracy between the appellant and the deceased Danabhai Virabhai Rabari. In our view, however, there was no warrant for this conclusion at all as there is no evidence to suggest that there was any such abetment and/or criminal conspiracy within the meaning of Section 29 of the NDPS Act. The appellant and Danabhai Virabhai Rabari were found together, but individually carrying the recovered substances. Hence, it was not possible for the High Court to take the view that Section 29 was attracted".
62. In the present case, the trial court had framed charge against the second accused for the offence under Section 20(b)
(ii)(C) of the Act only with the aid of Section 29 of the Act. Once it is found that the prosecution could not prove conspiracy to commit the offence and when Section 29 of the Act cannot be invoked against the second accused, he cannot be convicted for the offence under Section 20(b)(ii)(C) of the Act. In these circumstances, conviction entered against the second accused by the trial court is to be altered to under Section 20(b)(ii)(B) of the Crl.A.No.30/2020 40 Act and the sentence imposed on him is to be modified. Considering the fact the second accused had in his possession 18.000 kilograms of ganja, I find that it would be proper to impose a sentence of rigorous imprisonment for a period of five years and fine of Rs.50,000/- on him with rigorous imprisonment for a period of six months in case of default in payment of fine.
63. The trial court has sentenced the first accused to undergo rigorous imprisonment for a period of twelve years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of six months. There is no material to show that the first accused is a person who has got criminal antecedents. Considering this aspect, I find that only the minimum sentence of rigorous imprisonment for a period of ten years and fine of Rs.1,00,000/- needs to be awarded to him.
64. Consequently, the appeal is allowed in part and it is ordered as follows:
(1) Conviction of the first appellant/first accused by Crl.A.No.30/2020 41 the trial court under Section 20(b)(ii)(C) of the Act is confirmed.
(2) The sentence of rigorous imprisonment for a period of twelve years imposed on the first appellant/first accused by the trial court is modified and reduced to rigorous imprisonment for a period of ten years. The sentence of fine of Rs.1,00,000/- (Rupees one lakh only) imposed on him by the trial court with default sentence of imprisonment is confirmed.
(3) Conviction of the second appellant/second accused by the trial court under Section 20(b)(ii)(C) of the Act is altered to conviction under Section 20(b)(ii)(B) of the Act.
(4) The sentence imposed on the second appellant/second accused by the trial court for the offence under Section 20(b)(ii)(C) of the Act is set aside. He is sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.50,000/- (Rupees fifty thousand only) and in default of payment of fine, to undergo rigorous imprisonment for a period of six months for the offence under Section 20(b)(ii)(B) of the Act.Crl.A.No.30/2020 42
(5) The appellants/accused are entitled to the benefit of set off under Section 428 Cr.P.C.
(sd/-) R.NARAYANA PISHARADI, JUDGE jsr True Copy PS to Judge