Kerala High Court
Mohanan vs State Of Kerala on 30 August, 2024
2024:KER:65965
Crl.Appeal Nos.1477 of 2006 & 1
387 of 2007
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 30TH DAY OF AUGUST 2024 / 8TH BHADRA, 1946
CRL.A NO. 1477 OF 2006
AGAINST THE JUDGMENT DATED 22.07.2006 IN SC (NDPS) No.3
OF 2006 OF SPECIAL COURT FOR NDPS ACT CASES, THODUPUZHA
APPELLANT/1ST ACCUSED:
RAJAN, S/O.GOPALAN, KIZHAKKEKARA HOUSE, NEAR
MAMMATHIKKANAM,, MUSLIM PALLI, RAJAKKADU VILLAGE.
BY ADV SRI.N.A.MURALEEDHARAN
SMT.SANIYA C.V. STATE BRIEF
RESPONDENT/COMPLAINANT:
STATE OF KERALA, REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
SMT.SEENA C, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
21.08.2024, ALONG WITH CRL.A.387/2007, THE COURT ON
30.08.2024 DELIVERED THE FOLLOWING:
2024:KER:65965
Crl.Appeal Nos.1477 of 2006 & 2
387 of 2007
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 30TH DAY OF AUGUST 2024 / 8TH BHADRA, 1946
CRL.A NO. 387 OF 2007
AGAINST THE JUDGMENT DATED 22.07.2006 IN SC (NDPS) NO.3
OF 2006 OF SPECIAL COURT FOR NDPS ACT CASES, THODUPUZHA
APPELLANT/ACCUSED No.2:
MOHANAN, S/O.PONNAYYA
H.NO.VI/708 OF M.G.P., PALLANADU KARA,, MARAYOOR
VILLAGE.
BY SMT.SANIYA C.V., STATE BRIEF
RESPONDENT/COMPLAINANT:
STATE - C.I OF POLICE, MUNNAR, REP. BY THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
SMT.SEENA C, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
21.08.2024, ALONG WITH CRL.A.1477/2006, THE COURT ON
30.08.2024 DELIVERED THE FOLLOWING:
2024:KER:65965
Crl.Appeal Nos.1477 of 2006 & 3
387 of 2007
C.R
JUDGMENT
These appeals are at the instance of accused Nos.1 and 2 respectively in SC (NDPS) No.3 of 2006 on the file of Special Judge for NDPS Act cases, Thodupuzha against their conviction and sentence under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as 'the NDPS Act'), as per judgment dated 22.07.2006.
2. Prosecution case is that, on 06.05.2005, at about 6.45 a.m, the accused were found in possession of dried ganja concealed in their body beneath the shirt, while they were travelling in PPK bus bearing registration No.KL 7K 7003 plying in Kanthalloor-Aluva route.
3. PW1, CI of Police, Munnar, on getting secret information that two persons are transporting ganja in PPK bus, after sending that information in writing to his superior officer, proceeded to Nallathanni, and intercepted the bus and checked the passengers and their luggage along with other police officials. The accused persons were suspected of having concealed something beneath their shirt and so, PW1 and police party wanted to conduct their 2024:KER:65965 Crl.Appeal Nos.1477 of 2006 & 4 387 of 2007 body search. The accused were informed of their right to be searched in presence of a gazetted officer in compliance with the provisions of Section 50 of the NDPS Act. Since the accused expressed their intention to be searched in presence of a gazetted officer, PW3 Tahsildar was asked to be present to witness their body search. On conducting their body search in presence of the Tahsildar, a pink cover containing 1½ kgs of dried ganja tied on the abdomen was seized from A1 and a pink cover containing 1 kg of dried ganja tied on the abdomen was seized from A2. On completing the procedural formalities of arrest of the accused, sampling, labeling etc., the accused were produced before Munnar Police Station where crime No.88 of 2005 was registered against them.
4. On appearance of the accused before the Special Court, charge was framed under Section 20(b)(ii)(B) of the NDPS Act. They pleaded not guilty to the charge and claimed to be tried.
5. PWs 1 to 9 were examined, Exts.P1 to P21 were marked and MOs 1 to 10 were identified, from the side of the prosecution.
6. On closure of prosecution evidence, the accused were questioned under Section 313 of Cr.P.C. They denied all the 2024:KER:65965 Crl.Appeal Nos.1477 of 2006 & 5 387 of 2007 incriminating materials brought on record, and pleaded innocence. Exts.D1 and D2 were marked from their side.
7. On analysing the facts and evidence and on hearing the rival contentions from either side, the Special Court found both the accused guilty under Section 20(b)(ii)(B) of the NDPS Act and they were convicted thereunder. They were sentenced to undergo rigorous imprisonment for five years each and to pay fine of Rs.25,000/- each with a default sentence of rigorous imprisonment for six months each. Aggrieved by the conviction and sentence, the 1st accused preferred Crl.Appeal No.1477 of 2006 and the 2nd accused preferred Crl.Appeal No.387 of 2007.
8. Heard learned counsel for the appellants and learned Public Prosecutor.
9. Learned counsel for the appellants would submit that, the accused are absolutely innocent of this crime. According to the appellants, transporting ganja in private buses plying from Marayoor, Kanthalloor etc. is a usual practice. Sometimes Police might have seized unclaimed ganja packets from PPK bus. The 1st accused who was standing in the bus stop and the 2nd accused who was travelling in that bus carrying vegetables were falsely 2024:KER:65965 Crl.Appeal Nos.1477 of 2006 & 6 387 of 2007 implicated in this case.
10. Learned counsel for the 2nd accused would contend that, there was no connection between accused Nos.1 and 2 and the prosecution failed to prove any kind of conspiracy, or any common intention between them. The ganja allegedly seized from the possession of the 2nd accused was only 1kg and so he was not liable to be punished under Section 20(b)(ii)(B) of the NDPS Act and the provision applicable was Section 20(b)(ii)(A) for which the sentence prescribed as on the date of the incident i.e. 06.05.2005 was only rigorous imprisonment for a term which may extend to six months or with fine which may extend to Rs.10,000/- or with both. So, his conviction under Section 20(b)(ii)(B) of the NDPS Act is liable to be set aside. Moreover, since no connection whatsoever was established by the prosecution between accused Nos.1 and 2, they could not have been charged together for a common trial. No independent witnesses supported the prosecution case. The interested testimony of the official witnesses could not have been relied upon by the Special Court to find the accused guilty under Section 20(b)(ii)(B) of the NDPS Act. Apart from that, the procedural formalities prescribed under Sections 42, 50 and 57 of 2024:KER:65965 Crl.Appeal Nos.1477 of 2006 & 7 387 of 2007 the NDPS Act have not been complied with. So, in any view of the matter, his conviction and sentence under Section 20(b)(ii)(B) of the NDPS Act are liable to be set aside.
11. Learned Public Prosecutor would submit that, evidence of PWs 1 to 3 was sufficient to prove that, the accused were found in possession of dried ganja tied on their body beneath their shirt, while they were travelling in PPK bus on 06.05.2005 at about 6.45 a.m. PW1, CI of Police, Munnar categorically deposed before court that, on getting reliable information that two persons travelling in PPK bus are carrying ganja with them, he proceeded to the spot after writing down that information and sending it for sanction to his superior officer for conducting search in that bus. Accordingly, the passengers were checked and accused persons were found concealing something on their body and so, after informing them their right to be searched in presence of a gazetted officer, they were taken down from the bus, and PW3-Tahsildar was informed to be present, to witness the search. At about 8.30 a.m, the Tahsildar reached there and in his presence, PW1 conducted their body search and recovered 1½ kgs of dried ganja from A1, and 1kg of dried ganja from A2 in a pink cover tied on their body 2024:KER:65965 Crl.Appeal Nos.1477 of 2006 & 8 387 of 2007 using jute twine. PW2, the ASI of Police, Munnar and PW3, the Tahsildar, corroborated PW1 in all materials particulars.
12. PW5, the conductor of PPK bus, admitted that, on 06.05.2005, Police party inspected that bus, and he had affixed his signature in Ext.P5 seizure mahazar prepared at the scene by PW1. Though he identified his signature in Ext.P5 mahazar, he denied his 161 statement to the effect that Police took two persons from the bus and searched their body in presence of the Tahsildar. The testimony of PWs 1 and 2 clearly shows that, two persons suspected of keeping something inside their dress were taken down from the bus, and the testimony of PW3 is sufficient to show that after he reached the place of incident, body of the suspected persons were searched by PW1 in his presence. Ext.P8 kachit was executed by PW5 when the bus was received back from Police custody. So, obviously, PW5 was stating falsehood only to save the accused persons.
13. Regarding the testimony of PWs 6 and 7, according to the prosecution, they were passengers in PPK bus at the time of detection. Both of them turned hostile to the prosecution and according to them, they signed Ext.P5 mahazar at the Police 2024:KER:65965 Crl.Appeal Nos.1477 of 2006 & 9 387 of 2007 Station when they came there for regular reporting, as they were accused in a murder case. But, both of them admitted their signature in Ext.P5 mahazar as well as in the labels affixed on MOs 3 to 5 and MOs 8 to 10. During cross examination by the 1st accused, PW7 would say that, he had affixed his signature in the CI office before 06.05.2005 also, which gives a clear indication that he signed Ext.P5 as well as the labels in the MOs on 06.05.2005 i.e., on the date of incident. PWs 6 and 7 are co-accused in a murder case. Their hostility will not in any way affect the prosecution case as the testimony of PWs 1 to 3 is unblemished and trustworthy.
14. PW8 who weighed the ganja seized from the accused persons, admitted that, he was the salesman, in the spices section of Munnar Inn hotel. He admitted that, electronic weighing machine was available only in that shop. But, he turned hostile saying that he never weighed the ganja. But, PWs 1 to 3 categorically stated that, PW8 brought the electronic weighing machine, with which the ganja seized from the accused was weighed.
2024:KER:65965 Crl.Appeal Nos.1477 of 2006 & 10 387 of 2007
15. Hostility of independent witnesses is not a ground to disbelieve the testimony of official witnesses if it is found reliable and trustworthy. If the testimony of official witnesses is blemishless and free from suspicion, inspiring confidence of the court, the hostility shown by ill-motivated independent witnesses is of no consequence. When independent witnesses turned hostile after admitting their signature in the documents prepared at the scene of crime, the entire arrest and seizure will not become vitiated. When the evidence of the detecting officer is found reliable and trustworthy, it can be believed and acted upon notwithstanding the hostility shown by the independent witnesses.
16. In the case on hand, ganja packets were seen tied on the body of the accused persons beneath their shirt and it was seized on their body search. That fact is spoken to by PWs 1 to 3 in clear terms. If it was a case of seizure of unclaimed ganja packets from the bus, we could have insisted for corroboration from independent witnesses. But, since the ganja was seized from the body of accused Nos.1 and 2, which is clearly proved through the testimony of PWs 1 to 3, hostility of PWs 5 to 8 will not in any way affect the prosecution case.
2024:KER:65965 Crl.Appeal Nos.1477 of 2006 & 11 387 of 2007
17. Now coming to the compliance of Sections 42(2), 50 and 57 of the NDPS Act, Ext.P1 document clearly shows compliance of Section 42(2). PW4, the Dy.SP, admitted before court that, on receipt of Ext.P1, he had put his initials in it and he had given Ext.P16 letter permitting PW1 to conduct the search. Ext.P6 report was given to PW4 by PW1 regarding arrest and seizure and so much so there is compliance of Section 57 of the NDPS Act. Since body search was conducted in the presence of PW3-Tahsildar, there is proper compliance of Section 50 of the NDPS Act also. So, the contention as to non-compliance of the statutory provisions is liable to be turned down.
18. Learned counsel for the appellants submitted that, the samples were taken in a polythene cover and it was labelled, as seen from Ext.P5 scene mahazar. According to them, there was every chance for replacing that label since it was on a polythene cover. But, PW1, the detecting officer, deposed before court that, the sample was taken in a polythene cover and it was covered with brown paper and the label was affixed on that packet covered with brown paper. Moreover, the appellants had no case before the trial court that the labels on the MOs were replaced. So, such a 2024:KER:65965 Crl.Appeal Nos.1477 of 2006 & 12 387 of 2007 contention is not tenable before the appellate court.
19. Another contention taken up by the learned counsel for the appellants is that, there is delay in reaching the sample packets before the chemical examiner's lab. Ext.P21 chemical analysis report will show that, the sample sent to the lab as per reference letter dated 16.05.2005 reached the lab on the same day and the seals on the packet were found intact and tallied with the sample seal provided by the court. On chemical examination, it was found that, the sample packets contained ganja (Cannabis Sativa).
20. Learned counsel for the appellants contended that, though the sealed packets marked as S1 and S3 containing 25gms each were sent to the chemical examiner's lab, Ext.P21 chemical analysis report will show that the two packets contained 24.81gm and 23.37gm respectively and so the weight of the packets were not tallying with the prosecution case. But learned Public Prosecutor would submit that, on drying up, the weight of ganja may get reduced, and the minor difference in the weight of the packet is not significant when it is found that the seals on the packet were intact and tallied with the sample seal provided by the 2024:KER:65965 Crl.Appeal Nos.1477 of 2006 & 13 387 of 2007 court. That seems to be the proper answer to the doubt raised by the appellants.
21. Learned counsel for the appellants would say that, when there was reduction of weight in the sample packet received before the lab, the weight was seen increased in the packets produced before the court as per Ext.P7 property list. But, Ext.P7 shows that, the packets weighed 1.700kg and 1.150kg respectively along with its wrappers. The weight of the wrapper was not separately taken and so we cannot say that the weight of ganja produced before court was 1.700kg and 1.150kg respectively, since it was the weight along with its wrappers. So, that contention also cannot be accepted.
22. Another contention taken up by learned counsel for the appellants is that, the trial is vitiated as accused Nos.1 and 2 were charged together, though prosecution failed to show any conspiracy between them, in transporting ganja. According to them, in the absence of any conspiracy, each accused had to be charged separately for the offences committed by each of them. He further argued that Section 218 of Cr.P.C provides for separate charge and separate trial for every distinct offence of which any person is 2024:KER:65965 Crl.Appeal Nos.1477 of 2006 & 14 387 of 2007 accused.
Section 218(1) of Cr.P.C reads thus:
"218. Separate charges for distinct offences.--
(1) For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately".
Learned counsel further argued that, for charging the accused together, the conditions envisaged under Section 223 of Cr.P.C have to be satisfied.
23. Section 223 of Cr.P.C says what persons can be charged jointly and under what circumstances. Section 223 (a) to (d) can be extracted for ready reference.
"223. What persons may be charged jointly.--
The following persons may be charged and tried together, namely:--
(a) persons accused of the same offence committed in the course of the same transaction;
(b) persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence;
(c) persons accused of more than one offence of the same kind, within the meaning of section 219 committed by them jointly within the period of twelve months;
(d) persons accused of different offences committed in the course of the same transaction".
2024:KER:65965 Crl.Appeal Nos.1477 of 2006 & 15 387 of 2007
24. As per Section 223(a), persons accused of the same offence, committed in the course of the same transaction can be tried together. In order to attract that section, the accusation should be that each of the accused had committed the offence in the same transaction. The same offence mentioned therein means an offence arising out of the same act or series of actions. That is clear from the phrase "committed in the course of the same transaction". That implies that the accused should have acted in conceit. Continuity in action is an important test in the matter.
25. The prosecution case is that, PW1 got reliable information that two persons were carrying ganja in PPK bus and on checking the bus, accused Nos.1 and 2 were found sitting on the first and second seat behind the front door and both of them were carrying ganja packets tied on their abdomen with jute twine. The packing also was similar in nature. Ext.P11 bus tickets seized from the accused also will show that, the ticket fare was same in both the tickets and so, their destination also was the same. So, PW1, after conducting their body search in presence of Tahsildar, arrested both of them and a common crime was registered against them 2024:KER:65965 Crl.Appeal Nos.1477 of 2006 & 16 387 of 2007 under Section 20(b)((ii)(B) of the NDPS Act. When the detecting officer gets information that two persons were transporting ganja in a bus, and on inspection two persons sitting in nearby seats, with similar packing of ganja concealed in their body, were found, and both of them were having bus tickets of same fare to same destination, there was every reason for him to believe that they were transporting ganja as part of the same transaction and so much so there was nothing improper if a common crime was registered against them. The investigating officer also was satisfied that the accused persons were transporting ganja as part of a conspiracy and that is why they were charged together and sent for trial. When the attending circumstances show that, two accused persons committed the same offence in the course of same transaction, they can be charged and tried together as it was held in Ayodhya Singh v. State of Rajasthan [AIR 1972 SC 2501]. So, there was no impropriety in charging them together, as PW1 and the investigating officer, from the attending circumstances, believed that they were transporting ganja together as part of the same transaction.
2024:KER:65965 Crl.Appeal Nos.1477 of 2006 & 17 387 of 2007
26. When examined before court, PW1, the detecting officer, deposed that though in the arrest intimation, it was stated that the accused were friends, they could not collect any evidence to prove their friendship. During trial, prosecution failed to prove any conspiracy between the accused persons to show that ganja was possessed or transported by them as part of the same transaction. Different persons accused of having committed offences of the same kind cannot be regarded as having committed those offences in the course of the same transaction, unless there is an intimate connection between the different acts as it was held by this Court in State of Kerala v. Wolf Hang Kannad Finert [1995 KHC 18]. Prosecution has to prove continuity of action and community of purpose but they failed to prove it before court. That will not vitiate the trial, as there was every reason for the investigating officer to charge them together, from the attending circumstances aforementioned. Even if prosecution failed to prove conspiracy among the accused, it will not brush aside the offence individually committed by them, if it is capable of such separation. So each accused has to be held responsible for the individual acts committed by each of them, if it will constitute an offence by itself.
2024:KER:65965 Crl.Appeal Nos.1477 of 2006 & 18 387 of 2007 But he cannot be held liable cumulatively for the offence committed by the other accused also. In the case on hand, each accused has to be held responsible for the separate quantity of ganja possessed by each of them. So A2 cannot be held responsible for the ganja possessed by A1 also, in the absence of any evidence to prove conspiracy between them.
27. Learned counsel for the 2nd accused would submit that, the 2nd accused had no connection with the 1st accused and prosecution also failed to prove any conspiracy between them, or to show that they were transporting ganja as part of the same transaction, and so, he cannot be held responsible for the large quantity of ganja possessed by A1. Sl.No.55 in the table under sub clause vii(a) and xxiii(a) of Section 2 of the NDPS Act shows that, upto 1000gm of ganja, it is small quantity and above 20kg, it is commercial quantity. Since prosecution failed to prove beyond reasonable doubt that accused Nos.1 and 2 were transporting ganja concealed in their body as part of the same transaction, this Court is inclined to find them guilty according to the weight of ganja separately possessed by them. If so, the offence committed by the 2nd accused will fall under Section 20(b)(ii)(A) of the NDPS 2024:KER:65965 Crl.Appeal Nos.1477 of 2006 & 19 387 of 2007 Act, as the quantity of ganja seized from him was only 1kg. An offence under Section 20(b)(ii)(A) of the NDPS Act was punishable with rigorous imprisonment for a term which may extend to six months, or with fine, which may extend to Rs.10,000/-, or with both, as on the date of incident i.e. 06.05.2005 i.e., prior to the amended Act 16 of 2014 which came into effect on 01.05.2014.
28. The conviction and sentence of A2 (appellant in Crl.Appeal No.387 of 2007) under Section 20(b)(ii)(B) of the NDPS Act is set aside and he is found guilty under Section 20(b)(ii)(A) of the NDPS Act and he is convicted thereunder. He is sentenced to undergo rigorous imprisonment for six months and fine of Rs.10,000/- (Rupees ten thousand only). In default of payment of fine, he has to undergo rigorous imprisonment for two months more. Set off is allowed for the period undergone by him in custody during trial.
29. As far as the 1st accused is concerned, 1.5kg of ganja was seized from his possession. The offence was committed on 06.05.2005. At that time, he was only 39 years old. About 19 years elapsed since then. The appeal itself was pending before this Court for the last 18 years and it could be treated as a failure of 2024:KER:65965 Crl.Appeal Nos.1477 of 2006 & 20 387 of 2007 the system, to impart timely justice which may be due to various reasons which are often beyond our control.
30. Adverting to the factual situations as above, this Court is inclined to modify and reduce the sentence of A1 (appellant in Crl.Appeal No.1477 of 2006) while upholding his conviction under Section 20(b)(ii)(B) of the NDPS Act. A1 is sentenced to undergo rigorous imprisonment for two years and fine of Rs.20,000/- (Rupees twenty thousand only) and in default of payment of fine, he has to undergo rigorous imprisonment for a period of three months more. Set off is allowed for the period undergone in custody during trial.
The above appeals are allowed in part to the extent as above. The trial court has to take immediate steps for execution of the sentence against accused Nos.1 and 2. Registry of this Court has to forward a copy of this judgment to the trial court forthwith along with the trial court records so as to expedite execution of the sentence by the trial court.
Sd/-
SOPHY THOMAS JUDGE smp