Kerala High Court
Raju vs State Of Kerala on 21 June, 2024
"C.R"
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
FRIDAY, THE 21ST DAY OF JUNE 2024 / 31ST JYAISHTA, 1946
CRL.A NO. 276 OF 2008
AGAINST THE JUDGMENT DATED 31-01-2008 IN SC NO.9 OF 2007 ON
THE FILE OF SPECIAL COURT (NDPS ACT CASES), VADAKARA.
APPELLANTS/ACCUSED NOS.1 AND 2 :
1 O.J.RAJU, S/O JOHNY, AGED 42,
URUMBIL HOUSE, PANIKKANKUTTY,
UDUMBANCHOLA, IDUKKI DISTRICT.
2 O.J.JOSEPH, S/O JOHNY AGED 36,
URUMBIL HOUSE, PANIKKANKUTTY,
UDUMBANCHOLA, IDUKKI DISTRICT.
BY ADVS.
SRI.B.RAMAN PILLAI
SRI.ANIL K.MOHAMMED
SRI.R.ANIL
SRI.DELVIN JACOB MATHEWS
SRI.SUJESH MENON V.B.
RESPONDENT/COMPLAINANT :
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SRI. SANAL. P. RAJ - PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10.06.2024,
THE COURT ON 21-06-2024 DELIVERED THE FOLLOWING:
Crl.Appeal No.276 of 2008 2
"C.R"
JOHNSON JOHN, J.
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Crl.Appeal No.276 of 2008
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Dated this the 21st day of June, 2024.
JUDGMENT
The appellants are accused Nos.1 and 2 in S.C No.9 of 2007 on the file of the Special Judge, (NDPS Act Cases), Vadakara. They are challenging the conviction and sentence imposed on them for the offence under Section 20 (b)(II)(c) of the Narcotic Drugs and Psychotropic Substances Act (in short 'NDPS Act).
2. The prosecution case is that on 20-05-2003 at 4.45 p.m, when the Excise Circle Inspector at Excise Check Post, Muthanga, inspected vehicle bearing registration No.TN- 60/7595, a secret cavity was seen under the seat behind the driver seat and 23 packets containing a total 72 Kgs of ganja was seized and it is alleged that the first accused was the driver of the vehicle and the second accused was a passenger and Crl.Appeal No.276 of 2008 3 they were found transporting the ganja and they are thereby alleged to have committed the offence as aforesaid.
3. When the accused persons appeared before the trial court, after hearing both sides, charge was framed under Section 20(b)(II)(c) of the NDPS Act and when the accused persons pleaded not guilty, PWs1 to 9 were examined, Ext.P1 to P12 and MOs 1 to 5 series were marked from the side of the prosecution. No evidence was adduced from the side of the defence. After hearing both sides and considering the oral and documentary evidence on record, the learned Special Judge as per the impugned judgment dated 31-01-2008 convicted and sentenced the accused persons to undergo Rigorous imprisonment for ten years and to pay a fine of Rs.1 Lakh each and in default of payment of fine to undergo Rigorous imprisonment for six months each for the offence under Section 20(b)(II)(c) of the NDPS Act.
4. Heard Sri.R.Anil, the learned counsel for the appellant and Sri.Sanal P.Raj, the learned Public Prosecutor for the State and perused the records.
Crl.Appeal No.276 of 2008 4
5. The point that arises for consideration in this appeal is whether the conviction and sentence passed against the accused are legally sustainable.
6. The main contentions raised on behalf of the appellants are as follows :
(i) The trial court has not considered the statement filed by the accused under Section 233(2) Cr.P.C while appreciating the evidence of material witnesses who supported the prosecution case.
(ii) The trial court has not considered the discrepancy regarding the time of occurrence in Ext.P5 Crime and Occurrence report and Ext.P6 Report for correction of the time of occurrence in Ext.P5.
(iii) There is non-compliance of Sections 52 and 57 of the NDPS Act and the same caused prejudice to the accused and resulted in failure of justice.
Crl.Appeal No.276 of 2008 5
(iv) No satisfactory evidence is adduced to prove the manner of sampling as well as its safe custody in tamper free condition.
(v) Admittedly, sample was taken only from one packet out of the 23 packets and there is no evidence regarding the total quantity of ganja in the packet from which the sample was taken.
7. The learned Public Prosecutor argued that the evidence of PWs1 and 2 regarding the arrest and recovery of the contraband items from the possession of the accused is credible and trustworthy and it is also pointed out that drugs like ganja can be identified by their colour, texture and smell and that Sections 52 and 57 come into operation after the arrest and seizure under the Act and even if there is no strict compliance of any of these provisions which contain procedural instructions that by itself will not invalidate the trial or the conviction.
8. PW1 deposed that he was the Excise Circle Inspector at Excise Check post, Muthanga on 20-05-2003 and that day Crl.Appeal No.276 of 2008 6 evening while he was inspecting the vehicles coming from Karnataka side, vehicle bearing Registration No.TN60/7595 came from Karnataka side and apart from the driver, there was only one passenger and when he questioned them on suspicion their answers were contradictory and on further inspection a secret cavity was seen under the seat behind the driver seat. According to PW1 when the said secret cavity was opened, it was found that the same contained 23 packets and when the packets were opened, it was found that the packets contained dry ganja. According to PW1, he took three samples of 25 grams each from one packet in the presence of the accused and witnesses and also affixed seal and label with the signature of the accused persons and witnesses. PW1 further deposed that when the accused were informed about their right under Section 50 of the NDPS Act to have the presence of a Gazetted Officer or Magistrate for their body search they opted for the presence of a Gazetted Officer and thereafter their body search was conducted in the presence of the Sales Tax Officer and Crl.Appeal No.276 of 2008 7 nothing is recovered in the body search of the first accused, but a sum of Rs.520/- was recovered from the second accused.
9. PW1 deposed that he arrested the accused persons and the arrest memo is marked as Ext.P1. PW1 stated that on weighing the 23 packets recovered, it was found to have 72 Kgs. According to PW1, the contraband recovered is packed in two jute sacks and two plastic sacks and sealed. The seizure mahazar is marked as Ext.P2 and the search list as Ext.P3. The plastic sacks are identified as MOs1 and 2 and the jute sacks are identified as MO3 and MO4. However, PW1 would say that now there is no seal in MO1 and that he can see only the remanence of the seal in MO2. According to PW1 he produced the accused persons and the contraband items in the Excise Range Office, Sulthan Bathery and entrusted the same to the Excise Range Officer and also instructed the Excise Range Officer to forward the report as required under Section 57 of the NDPS Act.
Crl.Appeal No.276 of 2008 8
10. PW2 deposed that he was working as Excise Preventive Officer at Excise Checkpost, Muthanga on 20-05- 2003. According to PW2 on that day evening, he inspected vehicle bearing registration No.TN 60/7595 along with PW1 in front of the Check Post and from a secret cavity under the vehicle, they recovered 23 packets containing 72 Kgs of ganja. According to PW2, they took three samples of 25 grams each from one packet and affixed label with the signature of the Circle Inspector, accused persons and witnesses. PW2 stated that the contraband recovered was packed in two plastic sacks and the Circle Inspector sealed the same. According to PW2, they inspected the jeep at about 3.30 p.m and the seizure mahazar was prepared at about 4.45 p.m.
11. PW3 deposed that he was working as Sales Tax Officer at the Sales Tax Check post, Muthanga during 2003 and on the date of occurrence at about 3.30 p.m as per the request of the staff from Excise Check Post, he reached the Excise Office to witness the body search. According to PW3, when the Crl.Appeal No.276 of 2008 9 Excise Circle Inspector conducted the body search of the second accused, Rs.520/- was recovered. PW3 also stated that he witnessed the recovery of ganja from the jeep and that he signed Ext.P2 seizure mahazar and Ext.P3 search list as a witness.
12. In cross examination, PW3 stated that when coming from Karnataka side, Sales Tax Check Post is after the Excise Check Post and according to PW3 when he reached the place of occurrence, other vehicles were also there and he admitted that he did not see as to who took out the ganja from the jeep.
13. PW4 was the Village Officer of Noolpuzha, who prepared Ext.P4 scene plan. In cross examination PW4 stated that he prepared Ext.P4 on the basis of the mahazar and nobody pointed out the place of occurrence to him.
14. PW6 Excise Circle Inspector deposed that he filed the charge sheet as per the direction of the Filtering Committee and in cross examination, he admitted that he has not conducted any investigation in this case.
Crl.Appeal No.276 of 2008 10
15. PW7 deposed that he is conducting a tea shop near the Excise Check Post, Muthanga. According to PW7, the Excise Officials inspected the jeep on the date of occurrence near the Sales tax barricade at about 5.00 p.m, but he would say that he has not witnessed the recovery of ganja from the jeep. PW7 was declared hostile to the prosecution. In cross examination, PW7 stated that the Excise officials used to have food from his shop and that 5 or 6 persons alighted from the jeep and he saw the driver of the vehicle running away from there. According to PW7, the jeep was driven by a person of short stature and not by the accused.
16. PW8 deposed that he is working in an STD Booth near the Check Post at Muthanga. According to PW8, the Excise officials seized ganja from a jeep and the said jeep was seen stopped in front of the Excise Office and 4 or 5 persons alighted from the said jeep and the accused were among them. However, PW8 would say that he did not see the Excise Officials Crl.Appeal No.276 of 2008 11 seizing ganja from the jeep. PW8 was declared hostile to the prosecution.
17. In cross examination, PW8 stated that the Excise Officials used to reach his STD Booth and on the date of occurrence, Jobe (PW2) reached his STD Booth to telephone the Excise Circle Inspector and the Excise Circle Inspector reached there only after half an hour.
18. PW9 was the Excise Circle Inspector of Sulthan Bathery during 2003-2004 and he deposed that the investigation in this case was conducted by CW8, Excise Inspector, A.C Thomas and that now he is in U.S.A. According to PW9, he can identify the handwriting and signature of Excise Inspector A.C Thomas and PW9 stated that Ext.P5 Crime and Occurrence Report is prepared by Excise Inspector Thomas and that the time of occurrence is shown as 9.00 p.m in Ext.P5. According to PW9, Ext.P6 is a report filed by Excise Inspector Thomas for correcting the time of occurrence in Ext.P5 and Crl.Appeal No.276 of 2008 12 Ext.P7 is the Crime and Occurrence Report subsequently filed with the correct time of occurrence as 4.00 p.m.
19. PW9 deposed that Ext.P9 is a report filed regarding the delay in producing the property as per Ext.P8 property list and in Ext.P9 the reason for the delay is stated as the obstruction in the traffic due to the National Harthal on 21-05- 2003.
20. Admittedly, sample was taken only from one packet out of the 23 packets alleged to be recovered from the secret cavity of the jeep.
21. The learned counsel for the appellants pointed out that the procedure required to be followed was that the samples must have been drawn from each of the 23 packets recovered to ascertain the exact nature of the alleged contraband in these packets and it was also pointed out that no field testing kit was used by PWs 1 and 2 at the spot to confirm that the packet contains ganja.
Crl.Appeal No.276 of 2008 13
22. In Gaunter Edwin Kircher v. State of Goa, Secretariat Panaji, Goa ( 1993 (3) SCC 145), the accused was found in possession of two pieces of Charas that weighed 7 and 5 grams respectively, and out of the two pieces, one piece of 5 grams was sent for chemical analysis and the other piece weighing 7 grams was neither sent nor a sample thereof was taken and sent for chemical analysis in the said case. The Hon'ble Supreme Court held that since there was no chemical analysis for the other piece weighing 7 grams, the accused cannot be convicted for the said piece weighing 7 grams and that he can be held liable only for the possession of the piece of 5 grams for which test was conducted.
23. In Union of India v. Bal Mukund & Others ((2009) 12 SCC 161), the Hon'ble Supreme Court held thus in paragraph 36 as follows :
"36. There is another aspect of the matter which cannot also be lost sight of. Standing Instruction No. 1/88, which had been issued under the Act, lays down the procedure for taking samples. The High Court has Crl.Appeal No.276 of 2008 14 noticed that PW7 had taken samples of 25 gm each from all the five bags and then mixed them and sent to the laboratory. There is nothing to show that adequate quantity from each bag had been taken. It was a requirement in law."
24. In Santini Simone v. Department of Customs (2020 SCC OnLine Del 2128), it was held thus :
"54. The next aspect to be examined relates to the testing conducted on the spot and drawing of samples from the charas allegedly recovered from the appellant's trunk. The question to be addressed is whether the samples drawn were representative of the substance recovered from the appellant's baggage. The controversy to be addressed is, essentially, three-fold. The first relates to whether the procedure for drawing samples allegedly followed by the complainant is permissible. Second, whether the substance in all the four pouches was tested prior to it being kept together. Third, whether the contents of the four packets were properly mixed to form a homogeneous mixture and the samples were drawn from the same. "Crl.Appeal No.276 of 2008 15
25. The learned counsel for the appellants pointed out that the settled law is that if it is not practicable to send the entire quantity then sufficient quantity by way of samples from each of the packets recovered should be sent for chemical examination. It is pointed out that when 23 packets were allegedly recovered and sample was taken only from one packet, then the result would be of the total quantity in that particular packet from which the sample was taken and there is no evidence in this case to show the weight of the ganja contained in that particular packet. The evidence of PWs1 and 2 in this case shows that the contents of the packets were mixed only after taking the sample from one packet and therefore, it can be seen that the prosecution has no case that the sample was drawn after mixing the contents in all the 23 packets to make it homogeneous and representative.
26. It is pertinent to note that the Standing Order No.1/88 dated 15-03-88 was issued by the Narcotics Control Crl.Appeal No.276 of 2008 16 Bureau under Section 52 of the NDPS Act and paragraphs 1.6 and 1.7 of the said Order read as under :
"1.6 Quantity of different drugs required in the sample :
The quantity to be drawn in each sample for chemical test should be 5 grams in respect of all narcotic drugs and psychotropic substances except in the cases of Opium, Ganja and Charas/Hashish where a quantity of 24 grams in each case is required for chemical test. The same quantities should be taken for the duplicate sample also. The seized drugs in the packages/containers should be well mixed to make it homogeneous and representative before the sample in duplicate is drawn.
1.7 Number of samples to be drawn in each seizure case :
(a) In the case of seizure of single package/container one sample in duplicate is to be drawn.
Normally it is advisable to draw one sample in duplicate from each package/container in case of seizure of more than one package/container. Crl.Appeal No.276 of 2008 17
(b) However, when the package/containers seized together are of identical size and weight, bearing identical markings and the contents of each package give identical results on colour test by U.N. kit, conclusively indicating that the packages are identical in all respect/the packages/container may be carefully bunched in lots of 10 packages/containers. In case of seizure of Ganja and Hashish, the packages/containers may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample in duplicate may be drawn.
(c) Whereafter making such lots, in the case of Hashish and Ganja, less than 20 packages/containers remain, and in case of other drugs less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn.
(d) If it is 5 or more in case of other drugs and substances and 20 or more in case of Ganja and Hashish, one more sample in duplicate may be drawn for such remainder package/containers.
(e) While drawing one sample in duplicate from a particular lot, it must be ensured that representative drug in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot."
Crl.Appeal No.276 of 2008 18
27. In the present case, admittedly, the sample was taken only from one packet out of the 23 packets seized and there is also no evidence as to the weight of total quantity of contraband contained in that packet. In cross examination, PW1 admitted that he could not say from which packet the sample was taken. According to PW1, all the packets were separately weighed, but the weight of each of the packet was not separately recorded. PW2 also admitted in cross examination that he could not say from which packet the sample was taken. According to PW2, the Circle Inspector weighed all the packets separately, but he did not record the weight of each of the packets separately.
28. The learned counsel for the appellants pointed out that PW1 has no case that he complied the mandate of Section 57 of the NDPS Act and he only stated that he instructed the Excise Inspector to forward a report under Section 57 of the NDPS Act and in this case the prosecution has not examined CW8, Excise Inspector, who forwarded Ext.P12(a) report dated Crl.Appeal No.276 of 2008 19 21-05-2003 to the Assistant Excise Commissioner and the prosecution has also not examined the Assistant Excise Commissioner to prove that he received Ext.P12(a) report under Section 57 of the NDPS Act.
29. The learned Public Prosecutor argued that Sections 52 and 57 of the NDPS Act come into operation after the arrest and seizure and that the said provisions contain procedural instructions for strict compliance by the Officers and non- compliance of any of the instructions by itself cannot render the acts done by these Officers null and void, unless it is established that such non-compliance has caused prejudice and resulted in failure of justice. It is true that mere non- compliance or failure to strictly comply with the provisions of Sections 52 and 57 will not vitiate the prosecution unless such non-compliance has caused prejudice and resulted in failure of justice and therefore, it is necessary to analyse the evidence and the merits of the case in view of the above aspects. Crl.Appeal No.276 of 2008 20
30. In the written statement filed under Section 233(2) Cr.P.C, it is stated that the appellants who are brothers visited their sister, who is working as a Staff Nurse at Pooja Hospital, Channapatna on 19-05-2003 and they stayed there on that day and on the next day, i.e., on 20-05-2003, they boarded a bus to Mysore and from Mysore they reached Gundlupet in another bus and since a National Harthal was declared on 21-05-2003, there was no bus for travelling to Kerala and while they were standing in the bus stop, the jeep involved in this case came there and the driver of the jeep invited passengers to Kozhikode and accordingly, the appellants and 4 or 5 other passengers boarded the jeep. It is stated that the jeep was driven by one Mani, a resident of Kambam in Tamil Nadu and during the journey, some other passengers also boarded the jeep and when the jeep reached the Excise Check Post at Muthanga, PW2 (Jobe) and Excise Guard (Latheef) were inspecting 4 or 5 vehicles stopped in front of the jeep and since the Excise Officials were inspecting the vehicles stopped in front of the jeep and there is possibility of delay in inspecting the Crl.Appeal No.276 of 2008 21 jeep, the passengers of the jeep, including the accused persons and the driver of the jeep, alighted from the jeep. Subsequently when the Excise Officials reached near the jeep for inspecting the vehicle, the driver of the jeep and his assistant were not there. It is stated that when the Excise Officials could not find the driver of the jeep, they became angry and for the purpose of enquiring about the driver of the jeep, the accused were summoned to the Check Post and thereafter, detained there. It is stated that subsequently, the Excise Officials produced two sacks stating that the same was recovered from the jeep in which the accused persons travelled and PW2 also informed them that the sacks contained ganja and that in case Excise Officials were not able to apprehend the driver of the vehicle, they will be in trouble. It is stated that subsequently, PW1 reached there after about one hour and they were taken to the Excise Office, Sultan Bathery, along with the vehicle and the sacks. It is stated that the accused are falsely implicated in this case only because the Excise Officials were not able to apprehend the driver of the jeep and that the accused are not Crl.Appeal No.276 of 2008 22 having any connection with the jeep or the contraband items recovered.
31. PW5 deposed that she is residing at Chennapatna in Karnataka and that the accused are her relatives, who used to visit her house. PW5 deposed that the accused persons came to her house on 19-05-2003. In cross examination, PW5 stated that she is working as a Staff Nurse in Pooja Hospital, Chennapatna and that Chennapatna is between Bangalore and Mysore. She stated that the accused persons reached her house on 19th and on the next day at about 10.00 a.m, they boarded a bus to Mysore from Chennapatna. It is pertinent to note that the above evidence of PW5 before the court is not challenged by the prosecution. The specific case of the defence is that the contraband was not recovered from the possession of the accused persons and they boarded the jeep involved in this case as passengers from Gundlupet because of the National Harthal on 21-05-2003 and the non-availability of the bus for travelling to Kerala. The fact that there was a National Harthal Crl.Appeal No.276 of 2008 23 on 21-05-2003 is also disclosed from Ext.P9 report filed by the Excise Inspector regarding the delay in production of the property before the NDPS Special Court, Vadakara. It is pertinent to note that the only witnesses who supported the prosecution case regarding the occurrence are PWs 1 and 2 Excise officials. Apart from a vague statement by PW1 in chief examination that when he inspected the jeep, only the driver and one passenger were in the vehicle, he has no definite case that he saw any of the accused driving the vehicle. PW2 has also not deposed as to who was driving the jeep when the jeep reached the Excise Check Post at Muthanga. The learned counsel for the appellants pointed out that the evidence of PWs 1 and 2 in cross examination would show that their evidence regarding the occurrence does not tally inasmuch as PW1 has categorically admitted in cross examination that two other vehicles were stopped in front of the jeep for the purpose of inspection and that the jeep involved in this case came there while the Excise Guard was inspecting the other vehicles. But PW2 deposed in cross examination that apart from the jeep Crl.Appeal No.276 of 2008 24 involved in this case there was no other vehicle at the time of occurrence. Even though PW2 stated that he has not witnessed other persons alighting from the jeep, he admitted that the accused persons have not attempted to run away from there. In another part of the cross examination, PW2 stated that the jeep was first inspected by him and at that time he saw two passengers in the said jeep.
32. Admittedly, the contraband items were recovered from a secret cavity under the jeep and in cross examination, PW1 admitted that it was not the Excise Officials or the accused persons, who took out the contraband items from the secret cavity and that the same was done by another person, who was present there. According to PW1, they sought the assistance of another person because of the difficulty in opening the secret cavity by lying under the vehicle. PW2 also admitted the said fact in cross examination. However, PWs 1 and 2 were not in a position to say the name or identity of the person, who opened the secret cavity and took out the contraband items. Crl.Appeal No.276 of 2008 25
33. PWs 7 and 8 are the independent witnesses examined from the side of the prosecution to prove the occurrence. Even though, PWs 7 and 8 were declared hostile to the prosecution, their evidence in cross examination shows that the defence version of the incident is probable. The evidence of PW7 shows that he saw 5 or 6 persons alighting from the jeep and that the jeep was driven by a person of short stature and not by the accused persons in this case. PW8 also deposed that he saw 4 or 5 persons alighting from the jeep and that the accused were among them. Further, PW9 also admitted in cross examination that PWs 7 and 8 had stated to the Investigating Officer that they saw 4 or 5 persons alighting from the jeep.
34. It is well settled that suspicion, however strong cannot take the place of proof. The accused is presumed to be innocent unless proven guilty beyond reasonable doubt. It is true that the offences under the NDPS Act are of serious nature and people indulging in peddling, possession or dealing in any manner with Narcotic drugs are causing havoc to the social Crl.Appeal No.276 of 2008 26 fabric of the society and health of the young and impressionable youth, but the presumption of innocence until proven guilty is one of the fundamental principles of Criminal Jurisprudence. Section 35 of the NDPS Act, deals with the presumption of the culpable mental state of the accused requiring the court to presume the mental state for a prosecution under the Act. Explanation to Section 35 of the NDPS Act provides that "culpable mental state" includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. Sub Section (2) of Section 35 provides that a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability. In Naresh Kumar @ Nitu v. State of Himachal Pradesh ((2017) 15 SCC 684), it was held by the Hon'ble Supreme Court that the presumption under Sections 35 and 54 of the NDPS Act is rebuttable and such a presumption does not dispense with the obligation on the prosecution to prove the charge beyond all reasonable doubt and that the presumptive provision with Crl.Appeal No.276 of 2008 27 reverse burden of proof does not sanction conviction on the basis of preponderance of probability.
35. In this case the prosecution has not examined CW8, Excise Inspector, who conducted the investigation and there is nothing in evidence to show that any investigation is conducted regarding the source of the ganja seized or the owner of the jeep bearing registration No.TN60/7595. The prosecution has also not produced the registration particulars of the said vehicle. Therefore, I find force in the argument of the learned counsel for the appellants that the non-examination of the Investigating Officer has caused serious prejudice to the accused persons. The two fundamental principles while appreciating the evidence in a criminal case are that the guilt against the accused is to be proved beyond reasonable doubt and the burden on the accused is not so heavy to prove the plea taken by him and the accused can discharge the burden by showing the preponderance of probability to rebut the presumption.
Crl.Appeal No.276 of 2008 28
36. As noticed earlier, PWs 7 and 8 are the independent witnesses examined from the side of the prosecution and their evidence clearly shows that they saw 5 or 6 passengers in the jeep involved in this case and PW7 also deposed that the jeep was driven by a person of short stature and not by the accused persons in this case. The evidence of PW8 who is working in an STD Booth near the Check post shows that Preventive Officer Jobe, who is examined as PW2 telephoned PW1 Circle Inspector from the STD Booth and the Circle Inspector reached there only after half an hour and therefore the presence of PW1 at the place of occurrence at the time of recovery of the ganja from the jeep is doubtful. The specific case of the accused is that they boarded the jeep as passengers from Gundlupet while they were returning from the house of PW5 who is their sister and that the jeep was driven by one Mani, a native of Tamil Nadu and they have no other connection with the jeep or the contraband items recovered and that they were detained in the Excise Office while the Excise Officials were searching for the driver of the jeep and subsequently when the Excise Officials Crl.Appeal No.276 of 2008 29 were not able to apprehend the driver of the jeep, they were falsely implicated in this case. The discrepancy regarding the time of occurrence in Ext.P5 Crime and Occurrence Report and Ext.P6 Report for correction of the time of occurrence from 9.00 p.m on 20-05-2003 to 4.00 p.m on 20-05-2003 will also indicate that the case put forward by the defence is probable. It is pertinent to note that the alleged occurrence was on 20-05- 2003 and Ext.P6 Report for correcting the time of occurrence in Ext.P5 Crime and Occurrence report is dated 22-05-2003. The decision of the Hon'ble Supreme Court in Naresh Kumar's case (supra) shows that when independent witnesses are available and the prosecution initially seeks to rely upon them it cannot suddenly discard the said independent witnesses when it finds them inconvenient. It is pertinent to note that in this case, PWs 7 and 8, the independent witnesses examined, have not supported the prosecution regarding the alleged recovery of the contraband from the possession of the accused persons and this Court find that the evidence of PWs 1 and 2 regarding the occurrence and alleged recovery of the contraband from the Crl.Appeal No.276 of 2008 30 possession of the accused persons does not inspire confidence and therefore on a careful re-appreciation of the entire evidence, this Court find that the prosecution has failed to establish foundational facts beyond all reasonable doubt and in that circumstance, the impugned judgment is liable to be set aside and the appeal is to be allowed.
In the result, the appeal is allowed and the conviction and sentence passed against the appellants/accused Nos.1 and 2 in S.C No.9 of 2007 on the file of the Special Judge, (NDPS Act Cases), Vadakara is set aside and they are acquitted of the offence under Section 20(b)(II)(c) of the NDPS Act. The bail bond executed by the appellants/accused Nos.1 and 2 shall stand cancelled and they are set at liberty forthwith.
Sd/- JOHNSON JOHN, JUDGE.
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