Kerala High Court
Jagadamma vs State Of Kerala on 14 December, 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
MONDAY, THE 14TH DAY OF DECEMBER 2020 / 23RD AGRAHAYANA, 1942
Crl.Rev.Pet.No.1411 OF 2007
AGAINST THE JUDGMENT IN CRL.APPEAL NO.14/1998 OF ADDITIONAL
SESSIONS COURT-I, MAVELIKKARA DATED 14.10.2005
AGAINST THE JUDGMENT IN CC NO.294/1989 OF JUDICIAL MAGISTRATE OF
FIRST CLASS-1, HARIPAD DATED 31.12.1997
REVISION PETITIONER/5TH ACCUSED/APPELLANT:
JAGADAMMA, D/O.NANI,
THAYIL THEKKATHIL HOUSE,
MANJADITHARA MURI,,
BHARANIKAVU VILLAGE,
MAVELILLARA TALUK.
BY ADVS.
SRI.BASANT BALAJI
SRI.R.GOPAN
RESPONDENT/COMPLAINANT/STATE:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,, ERNAKULAM.
BY SR.PUBLIC PROSECUTOR SRI.M.S.BREEZ
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
14.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.Rev.Pet.No.1411 OF 2007
2
ORDER
Dated this the 14th day of December 2020 The revision petitioner was the 5 th accused in CC No.294 of 1989 on the file of the Judicial First Class Magistrate Court- 1, Haripad and the appellant in Crl.Appeal No. 14 of 1998 on the file of the Additional Sessions Court-1, Mavelikkara. The revision petitioner/5th accused along with four others were chargesheeted by the Excise Inspector, Kayamkulam under Section 55(a) of the Kerala Abkari Act.
2. The prosecution case in brief is that, on 27.07.1988 at about 11.00 p.m, on receiving information PW3, the Circle Inspector of Police, Kayamkulam conducted search and seizure at the residence of the revision petitioner/5 th accused and seized four gunny bags containing ganja with flowers and dry fruits.
3. During the trial of the case, PWs 1 to 7 were examined and marked Exts.P1 to P5 and MO1 on the Crl.Rev.Pet.No.1411 OF 2007 3 prosecution side. On closing the evidence of the prosecution, the accused were questioned under Section 313(1)(b) of the Cr.P.C. They denied all the incriminating circumstances appearing in the evidence against them. DW1 was examined on the side of the accused.
4. On appreciation of the evidence, the trial court acquitted the accused 1 to 4 by its judgment dated 31.12.1997. However, the 5th accused was convicted and sentenced to undergo simple imprisonment for one year and also to pay a fine of Rs.4,000/- and in default of payment of fine to undergo simple imprisonment for a period of two months more for the offence punishable under Section 55(a) of the Abkari Act. Challenging the conviction and sentence, the 5 th accused preferred Crl.Appeal No. 14 of 1998 before the Additional Sessions Court-1, Mavekillara. By its judgment dated 14.10.2005, the learned Additional Sessions Judge dismissed the appeal confirming the conviction and sentence imposed by the trial court.
5. Heard, Sri. Basant Balaji, the learned counsel for the Crl.Rev.Pet.No.1411 OF 2007 4 revision petitioner and Sri.M.S.Breez, the learned Senior Public Prosecutor for the State.
6. The learned counsel for the revision petitioner submitted that PW3 was not an empowered officer to conduct search and seizure of the ganja alleged to have been seized by him as per Section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act'). It is submitted that on the date of conducting search and seizure, the Central Government had not issued requisite notification in the official gazette pertaining to the prohibition against the cultivation of the cannabis plant for the production of ganja or production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State, export inter-State of ganja for any purpose other than medical and scientific purpose. It is further submitted that PW3 conducted search and seizure contrary to the provisions contemplated under Sections 40, 41, 42, 43 and 51 of the NDPS Act and also under Section 100 and 165 of the Code of Criminal Procedure (for short 'the Cr.P.C). It is further submitted that the search and seizure conducted by Crl.Rev.Pet.No.1411 OF 2007 5 PW3 violated both the provisions contemplated under the NDPS Act and under the relevant provisions of the Cr.P.C. Thus, it is submitted that further investigation conducted by the Abkari Officer does not cure the inherent defect in the prosecution case and the very lodging of final report based on illegal search is clearly unsustainable. It is also submitted that on merits there is no evidence on record to conclude that the 5 th accused was in possession of the contraband as alleged by the prosecution.
7. Per contra, the learned Senior Public Prosecutor submitted that evidence obtained by illegal search cannot be shut out on that ground alone. The contravention of the Cr.P.C or the NDPS Act are irregularities and the irregularities are not sufficient to exclude relevant evidence merely on the ground that it was obtained by illegal search or seizure. Relying on the order in Crl.M.C.No.995 of 1988, the learned Senior Public Prosecutor submitted that even if the search conducted by PW3 was not in accordance with law, the same could not be brushed aside and the prosecution could be laid under the provisions of Crl.Rev.Pet.No.1411 OF 2007 6 the Abkari Act. It is further submitted that both the trial court as well as the appellate court concurrently held that the 5 th accused had committed the offence and interference in revision would not be required in a case where the entire evidence on record would prove the guilt of the accused.
8. The original 2nd accused filed Crl.M.C.No.993 of 1988 before this Court to quash the final report in Crime No.338 of 1988 of the Kayamkulam Police Station on the ground that pertaining to the offence in question, the Act had not been brought into force by issuance of a notification. This Court found that no notification was issued authorizing the police to conduct search and seizure in respect of the contraband article involved in this case and accordingly, the charge was quashed. However, this Court clarified that merely because the charge was quashed, the same will not stand in the way of final report being laid under the provisions of the Abkari Act.
9. Pursuant to the aforesaid order PW7, the Excise Inspector, Kayamkulam laid the final report before the trial Crl.Rev.Pet.No.1411 OF 2007 7 court for the offence under Section 55(a) of the Abkari Act. After the trial, the accused 1 to 4 were found not guilty and accordingly, they were acquitted. The 5th accused alone was convicted for the offence under Section 55(a) of the Abkari Act. PWs 1 to 5 stated before the trial court that the 5 th accused was present at her residence. It is the case of the prosecution that on 27.07.1988 about 11 p.m, PW3 received information that a Jeep bearing registration No. KBE 8419 was halted in the court-yard of one Pulimoottil Krishnankutty. According to PW3, he along with police party proceeded to the spot and found three persons trying to get into the Jeep and move away from the place. The case is that, on seeing PW3 and police party, the 4th accused had thrown away a gunny bag from the Jeep. It is the case of PW3 that though the police party chased them, they could not get the Jeep. Thereafter, the contents of gunny bag was verified and found that it contained ganja. The ganja items were verified in the presence of PWs 1 and 2. According to PW1, he went to the house of aforesaid Krishnankutty and found the 3rd accused there. It is his case Crl.Rev.Pet.No.1411 OF 2007 8 that on interrogation it was revealed that the accused 1, 2 and 4 brought five bags of ganja from Kattappana in the aforesaid Jeep on the previous night and thereafter, they had kept four gunny bags in the wife house of the 1 st accused, namely the 5th accused. PW3 conducted the search in the house of 5 th accused and seized four bags of ganja. The accused persons were arrested on different dates later.
10. It has come out in evidence that, the accused 1, 2 and 4 brought five bags of ganja from Kattappana in the Jeep on the previous day night and they had kept four gunny bags at the residence of the 5th accused. After taking the evidence, accused 1 to 4 were found not guilty whereas, the 5 th accused was found guilty on the ground that she was in physical possession of the contraband on the date of detention of the offence.
11 .Admittedly in this case, PW3 was not an authorized officer to conduct search in accordance with Section 100 and 165 of the Cr.P.C. Going by the provisions under Section 4 of the Cr.P.C., provisions of Cr.P.C are applicable to search and Crl.Rev.Pet.No.1411 OF 2007 9 seizure made under the NDPS Act as well. There is nothing on record to show that the search and seizure allegedly done by PW3 is contrary to the provisions contained under the NDPS Act. In the case on hand, PW3 conducted search and seizure of the contraband although he was not competent to do so under Section 8 of the NDPS Act. However, the law does not prohibit laying of chargesheet by the competent officer in respect of an offence under Section 55(a) of the Abkari Act. Merely because the search conducted by PW3 is not in accordance with the scheme of the NDPS Act or under the Cr.P.C, the same itself is not a ground to disbelieve the version of the prosecution case if other evidence adduced by the prosecution is sufficient to prove the prosecution case. However, when search and seizure is done by an officer not authorized to so, the whole prosecution evidence should be weighed with great care and caution. In otherwords, search and seizure made by an officer not authorized to do so is not a ground to convict and sentence the accused. In the case on hand, though prosecution witnesses were examined, it is crystal clear that the 5 th accused was Crl.Rev.Pet.No.1411 OF 2007 10 implicated in this case based on the interrogation made by PW3 and based on the information furnished by the accused 1, 2 and 4. There are no other reliable evidence to connect the 5 th accused with the crime involved. To prove an offence under Section 55(a) of the Abkari Act, it is incumbent on the part of the prosecution to prove that the accused was in conscious possession of the contraband on the date of detection of the offence. There is nothing on record to prove that the accused was in possession of the contraband consciously on the date of detection of the offence.
12. The 5th accused was implicated based on the information furnished by the other accused and the contraband was seized as per the information furnished by the other accused. There is nothing on record to prove that the 5 th accused was aware that the contraband materials were stored at her house. This is all the more important in a case where accused 1 to 4 were acquitted by the trial court finding that they were not guilty of the offences involved. The 5 th accused, a lady present at her residence was convicted for the offence under Crl.Rev.Pet.No.1411 OF 2007 11 Section 55(a) on the ground that she was in possession of the contraband on the date of detection of the crime. However, accused 1 to 4 were acquitted. It is difficult to imagine that the 5th accused brought these contraband articles from Kattappana to Kayamkulam and was in possession of the contraband at her residence.
13. Further, the chargesheet was filed by the police under Section 55(a) of the Abkari Act questioning all the witnesses involved in this case as if they had jurisdiction to deal with the offenders under Section 55(a) of the Abkari Act. Subsequent to the order in Crl.M.C.No.993 of 1988, the prosecution was handed over to the Abkari Officer and the Abkari Officer - PW7 filed chargesheet. There is no substantial difference between the two chargesheets submitted by the police as well as the Abkari Officer under the Abkari Act. As stated earlier, the search was not conducted in accordance with Section 40 to 43 of the NDPS Act. The search conducted by PW3 under Section 100 and 165 of the Cr.P.C was not in accordance with Section 8 of the NDPS Act. The conviction and Crl.Rev.Pet.No.1411 OF 2007 12 sentence were rendered against the 5th accused mainly based on the search and seizure made by PW3. Though it is only an irregularity, so far as this case is concerned, the trial court convicted the accused and based on the irregular search and seizure. The conviction and sentence imposed against the revision petitioner/5th accused under Section 55(a) of the Abkari Act are not based on evidence and hence, the concurrent findings of conviction and guilt has caused serious prejudice to the 5th accused. Hence, the conviction and sentence imposed by the trial court against the revision petitioner/5th accused are liable to set aside.
In the result, the revision is allowed. The judgment of conviction and sentence imposed by the trial court, which has been confirmed in appeal are set aside. The revision petitioner/5th accused is found not guilty of the offences punishable under Section 55(a) of the Abkari Act and accordingly, she is acquitted thereunder. Cancelling her bail bond, this Court directs that she be set at liberty. If any fine amount is deposited during the pendency of the revision, Crl.Rev.Pet.No.1411 OF 2007 13 pursuant to an interim order of this Court, the same shall be refunded to the revision petitioner/5th accused, in accordance with law. Pending applications, if any, stand disposed of.
Sd/-
N.ANIL KUMAR, JUDGE dlk/14.12.2020