Kerala High Court
Melbin Thomas vs The Senior Intelligence Officer on 24 March, 2025
2025:KER:24298
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Crl.Appeal No.60 of 2014
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 24TH DAY OF MARCH 2025 / 3RD CHAITHRA, 1947
CRL.A NO. 60 OF 2014
AGAINST THE JUDGMENT DATED 18.01.2014 IN SC (NDPS)
NO.8 OF 2012 OF THE COURT OF SPECIAL JUDGE (NDPS ACT CASES),
THODUPUZHA
APPELLANT/ACCUSED NO.2:
MELBIN THOMAS
S/O THOMAS VARGHESE @ GEORGE, MOOLEPARAMBIL HOUSE,
THINKALKADU KARA, MUNIYARA, IDUKKI
BY ADVS.SRI.C.K.SREEDHARAN
SRI.SUNNY MATHEW
RESPONDENTS/COMPLAINANT & STATE:
1 THE SENIOR INTELLIGENCE OFFICER
DIRECTORATE OF REVENUE INTELLIGENCE OFFICE,
REGIONAL UNIT COCHIN.
2 THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM 682031
BY ADV SHRI.SREELAL N.WARRIER, SC, GST
INTELLIGENCE ( DIRECTORATE GENERAL-DGGI)
SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/3/2025,
THE COURT ON 24.03.2025 DELIVERED THE FOLLOWING:
2025:KER:24298
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Crl.Appeal No.60 of 2014
C.S.SUDHA, J.
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Crl.Appeal No.60 of 2014
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Dated this the 24th day of March 2025
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the appellant who is accused no.2 in S.C.(NDPS)No.8/2012 on the file of Court of the Special Judge for NDPS Act cases, Thodupuzha, challenges the conviction entered and sentence passed against him for the offence punishable under Section 21(c) of the Narcotic Drugs And Psychotropic Substances Act, 1985 (the NDPS Act).
2. The prosecution case is that on 12/07/2011 at 08:00 am, the Senior Intelligence Officer, Directorate of Revenue Intelligence, Kochi, received information that A1 Biju Joseph was attempting to sell about 5 kgs of hashish oil in and around Kattappana. Information was received that the contraband was likely to be 2025:KER:24298 3 Crl.Appeal No.60 of 2014 brought to Erattayar junction. Pursuant to the information, PW1, Senior Intelligence Officer, was directed to take necessary action. Thereupon, PW1 along with party reached Erattayar junction and put up surveillance. By about 02:00 pm, the team saw few persons moving around in a suspicious manner. Shortly thereafter a Scorpio jeep bearing registration no.KL-06/C-2517 was seen approaching the said persons. The first accused Biju Joseph alighted from the car carrying a white plastic carry bag. PW1 and team found the persons who had gathered there examining the contents of the bag. PW1 and his team approached them and asked A1 about the contents of the bag. The other persons in the group attempted to run away. PW1 and team were able to intercept the first accused and another person. On examining the contents of the carry bag in the possession of A1, it was found to contain 5 packets packed in plain polythene covers each containing a dark coloured semi-solid substance having a pungent smell. The first accused 2025:KER:24298 4 Crl.Appeal No.60 of 2014 Biju Joseph disclosed that the same was ganja oil weighing about 5 kgs and that he had brought the same for sale. PW1 using the field test kit conducted a preliminary test which indicated that the substance was hashish oil (ganja oil). The contraband including the packing material weighed 5060 gms. Hence, the first accused was arrested and the contraband article seized and inventory and mahazar prepared.
3. The statement of the first accused and another person by name Ajeesh was recorded under Section 67 of the NDPS Act. Further investigation was conducted by PW3 regarding the owner of the vehicle in which the first accused had arrived at the scene. PW3 received information that the vehicle was plying at Bodinaikanur, Tamil Nadu. Hence he along with team proceeded to the said place and with the assistance of Tamil Nadu police, intercepted the vehicle at Anakarapetty near Bodinaikanur. When the vehicle was intercepted, the second accused Melbin Thomas 2025:KER:24298 5 Crl.Appeal No.60 of 2014 and one Ullas were present in the vehicle. The statement of the second accused under Section 67 of the NDPS Act was recorded on 23/07/2011. On the basis of the statement of the second accused, he was arrested and necessary formalities were complied with. As per the final report, the accused persons two in number, were alleged to have committed the offences punishable under Sections 21(c), 28 and 29 of the NDPS Act.
4. Crime no.1/2011, that is Ext.P7 occurrence report, was registered by PW1. The investigation was conducted by PW3, Senior Intelligence Officer, DRI, Kochi, who on completion of the investigation submitted the final report alleging the commission of the aforesaid offences by the accused persons.
5. The first accused absconded and hence the case against him was split up. The second accused was produced before the trial court on the basis of a production warrant issued as he was undergoing sentence in two other cases. After complying with the 2025:KER:24298 6 Crl.Appeal No.60 of 2014 necessary formalities contemplated under Section 207 Cr.P.C., the trial court framed a charge for the offences punishable under Sections 21(c), 28 and 29 of the NDPS Act, which was read over and explained to the second accused to which he pleaded not guilty.
6. On behalf of the prosecution, PW1 to PW3 were examined and Exts.P1 to P18 and MO.1 to MO.12 were marked in support of the case. After the close of the prosecution evidence, the second accused was questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied those circumstances and maintained his innocence.
7. As the trial court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., he was asked to enter on his defence and adduce evidence in support thereof. No oral or documentary evidence was adduced by the second accused.
8. On a consideration of the oral and documentary 2025:KER:24298 7 Crl.Appeal No.60 of 2014 evidence and after hearing both sides, the trial court by the impugned judgment found A2 guilty of the offences punishable under Sections 21(c), 28 and 29 of the NDPS Act. Hence he has been sentenced to undergo rigorous imprisonment for 12 years and fine of ₹1,50,000/- and in default to undergo rigorous imprisonment for one year for the offence punishable under Section 21(c) of the NDPS Act ; rigorous imprisonment for 12 years and fine of ₹1,50,000/- and in default to rigorous imprisonment for one year for the offence punishable under Section 28 and rigorous imprisonment for 12 years and fine of ₹1,50,000/- and in default to rigorous imprisonment for one year for the offence punishable under Section 29 of the NDPS Act. The substantive sentences have been directed to run concurrently. Set off under Section 428 Cr.P.C. has been allowed. Aggrieved, the second accused has come up in appeal.
9. The only point that arises for consideration in this 2025:KER:24298 8 Crl.Appeal No.60 of 2014 appeal is whether the conviction entered and sentence passed against the second accused/appellant by the trial court are sustainable or not.
10. Heard both sides.
11. The prosecution relies on the testimony of PW1 to PW3 to support the case. PW2 an independent witness has been disbelieved by the trial court. PW1 and PW3 are official witnesses. PW1 is the detecting officer and PW3 is the investigating officer. Going by the version of PW1, the first accused arrived at the spot in a Scorpio jeep bearing registration no.KL-06/C-2517. After dropping A1 at the scene of occurrence, the car drove off. PW1 did not see the persons who were inside the car or the driver of the car. The car thereafter was found in the possession of the second accused in Tamil Nadu by PW3, who arrested him. Thereafter the second accused is alleged to have given Ext.P15 confession statement under Section 67 of the NDPS 2025:KER:24298 9 Crl.Appeal No.60 of 2014 Act. The prosecution relies solely on Ext.P15 confession to find the accused guilty of the offence alleged against him. In the light of the dictum in Tofan Singh v. State of Tamil Nadu, (2021)4 SCC 1 : 2020(6) KHC 111, the confession statement is inadmissible in evidence. In the said decision it has been held that the officers who are invested with powers under Section 53 of the NDPS Act are "police officers" coming within the meaning of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under Section 25 of the Evidence Act, and hence cannot be taken into account in order to convict an accused for an offence under the NDPS Act. That being the position, the impugned judgment is liable to be reversed.
In the result, the appeal is allowed. The impugned judgment is set aside. The conviction and sentence imposed by the trial court is set aside and the second accused/appellant is acquitted under 2025:KER:24298 10 Crl.Appeal No.60 of 2014 Section 235(1) Cr.P.C. He is set at liberty and his bail bond shall stand cancelled.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA JUDGE ami/