Kerala High Court
Nasser vs State Of Kerala on 31 October, 2012
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
THURSDAY, THE 28TH DAY OF NOVEMBER 2013/7TH AGRAHAYANA, 1935
CRL.A.No. 1476 of 2013 ()
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AGAINST THE CONVICTION AND SENTENCE IN SC 1454/2008 OF THE FIRST
ADDITIONAL SESSIONS COURT, TRIVANDRUM DATED 31-10-2012
CRIME NO. 56/2008 OF FORT POLICE STATION , THIRUVANANDAPURAM
APPELLANT/ACCUSED:
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NASSER, C.NO.8339, CENTRAL PRISON, TRIVANDRUM
BY ADV. ADV. V.SREEJA [STATE BRIEF]
RESPONDENT/COMPLAINANT:
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STATE OF KERALA
REPRESENTED BY DGP,
HIGH COURT OF KERALA, ERNAKULAM.
R1 BY PUBLIC PROSECUTOR SMT. P. MAYA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28-11-2013, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
sp
P. BHAVADASAN, J.
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Crl. Appeal No.1476 of 2013
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Dated this the 28th day of November, 2013.
JUDGMENT
The accused in this case, who was prosecuted for the offences punishable under Section 20 (b) (ii) (B) and 511 of the NDPS Act. He was found guilty of the offences. Hence he was convicted and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.20,000/- in default, to undergo rigorous imprisonment for one month. Set off as per law was allowed.
2. PW2, on 22.01.2008, while working in the Fort Police Station, who was on duty, received reliable information about a person carrying a packet of ganja near the Manacaud market behind the Corporation building. He, along with his team of officers, went to that place. They found that, on seeing them a person standing at the place became nervous and was trying to get away. He was intercepted and his name was ascertained.
3. On making enquiry about the the packet in his hand, he replied that it was household articles. Feeling suspicious, Crl. Appeal No.1476 of 2013 2 PW2 informed him that they had reliable information that he was possessing ganja and they intended to search him. He was also made aware of the fact that if he so wishes, he could get the presence of a Gazetted Officer. On getting a reply in the affirmative, PW3 was fetched. After ensuring that the police officers did not carry contraband article with them, in the presence of PW3 the packet found with the accused was seized and when it was opened, it was found that it contained ganja. On weighing, it weighed 1.100 Kilograms. PW2 then followed the necessary procedures, had the accused arrested and returned to the Police Station with the contraband articles and the accused. Crime was registered and investigation was conducted by PW4. He had the FSI Report obtained. He completed the investigation and laid charge before the Court.
4. Cognizance of the offence was taken and summons was issued to the accused. On his appearance, formalities were completed and charge was framed for the offences made mentioned earlier. To the charge, the accused pleaded not Crl. Appeal No.1476 of 2013 3 guilty and claimed to be tried. The prosecution, therefore, examined PWs1 to 4 and had Ext.P1 to P12 marked. After the close of prosecution evidence, the accused was questioned under Section 313 Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. He claimed to be a fruit vendor by profession and he used to have frequent quarrels with the police men. Due to that reason he was falsely implicated. Finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. He chose to adduce no evidence. On an appreciation of the material before it, the Court below found that the evidence of PWs 1,2 and 3 clearly establishes the guilt of the accused. Conviction and sentence as already mentioned followed.
5. Since the appellant was in jail, he preferred an appeal from the jail and this Court had appointed Advocate Smt. V.Sreeja on State Brief to appear on behalf of the appellant.
6. In her well-prepared and well-presented arguments, Crl. Appeal No.1476 of 2013 4 the learned counsel for the appellant assailed findings on several grounds. It was pointed out by the learned counsel that this is a case, where Section 50 of the Act is attracted and going by the evidence of PWs 1 and 2, it can be seen that there is no strict compliance with Section 50. If that be so, it vitiates the conviction.
7. Attacking the search and seizure it was contended that none of the independent witnesses have been examined. The learned counsel also pointed out that PW3 is none other than the immediate superior officer of PW2 and that is not the spirit of Section 50 which contemplates an independent Gazetted Officer to be present at the relevant time. It was contended that arrest memo, inspection memo and other documents alleged to have been prepared at the site contain the crime number and that would clearly shows that these documents were subsequently drawn up ie. after registration of the crime.
8. It was then contended that going by the arrest memo, inspection memo etc., it is found that the arrest was intimated Crl. Appeal No.1476 of 2013 5 to the sister of the accused, whose presence is not spoken to by any one of the witnesses. Finally, it is pointed that Ext.P11 is said to have drawn up on 22.01.2008, where it has been produced in Court only on 23.01.2008. These infirmities and lacuna in the prosecution evidence have been omitted to be noted by the Court below and the Court has mechanically acted on the evidence of PW1 and 4 and found the accused guilty. It is contended that the conviction and sentence cannot stand.
9. The learned Public Prosecutor, on the other hand, contended that the contention based on Section 50 is without any basis for the simple reason that the ganja seized was not from the person of the accused, but from a packet which he was carrying, in which case Section 50 has no application. It was then contended that requirements of law are satisfied by procuring two independent witnesses and that is seen to have been done in the case on hand. May be, that one of them was later on found to be involved in a crime, but that is not a Crl. Appeal No.1476 of 2013 6 ground to suspect their presence.
10. It is also contended that as regards the anomalies in the arrest memo, inspection memo etc. concerned, the learned Public Prosecutor would point out that these infirmities were not put to the officers concerned and their explanation sought for, and in the absence of doing so, the contention cannot be raised at this point of time. No such contention was raised in the lower court. It is too late in the day for the appellant to raise these contentions, which needs probing into facts. The accused should have put to PWs 1 and 2 and sought for the explanation. None of the points urged by the appellant including the presence of Gazetted Officer etc. were raised before the court below nor was it put to the officers concerned and therefore they do not merit consideration at all. It is clear from the evidence of PWs 1 to 3 according to the learned Public Prosecutor that the accused was found in possession of ganja as alleged and the conviction and sentence will have to stand.
Crl. Appeal No.1476 of 2013 7
11. The definite case of the accused is that he was a fruit vendor by profession and he had several quarrels with the police officials. He pointed out that he has been falsely implicated.
12. Going by the evidence of PWs 1 and 2, PW2 had got reliable information regarding a person engaged in sale of ganja in the place made mentioned of and he along with PW1 and others proceeded to the spot. Both PWs1 and 2 would say that they were to locate a person considering the description and on seeing them he became nervous. He attempted to escape, but he was intercepted and asked about the contents of the packet, which had held with him. Both of them say that he replied that it contained household articles. Both PWs 1 and 2 say that they informed the accused that they suspected he possessed ganja and they wanted to search him. They also deposed that he was informed that if he so desirous he could avail of presence of a Gazetted Officer. On his affirmative answer, PW3 was fetched.
Crl. Appeal No.1476 of 2013 8
13. PWs 1 and 2 narrate in detail about the labeling, sampling etc. done and about the numbering of the samples.
14. A contention is taken by the learned counsel for the appellant that even though the labels contained seal, no sample seal is seen affixed in the seizure mahazar that vitiates this proceeding.
15. As rightly pointed out by the learned Public Prosecutor strictly speaking Section 50 has no application to the facts of the case. Section 50 applies in a case where the person of the accused is sought to be searched. It is well settled that if he holds a packet or any other material, which contain the contraband articles, then Section 50 may not be applicable. The mere fact that PWs 1 and 2 say that, he was asked whether he required the presence of a Gazetted Officer may not by except may be determinative of the issue. It has to be shown by the accused that a Section is attracted to the facts of the case. He has not even made any suggestion to the PWs 1 and 2 that ganja was not seized from him. Crl. Appeal No.1476 of 2013 9
16. In the light of the above fact, the contention based on the irregularity in the procedure followed by the PWs 1 and 2 regarding the presence of Gazetted Officer required no consideration.
17. As regards the infirmities pointed out with regard to the arrest memo, inspection memo etc., as rightly pointed by the learned Public Prosecutor there was no question put to PW2 or Investigating Officer in that regard. True, it looks slightly odd that the arrest memo, inspection memo etc., which are presumed to have been drawn up at the time of detection and which is drawn up at a later point of time. Normally, inspection memo and direction memo could not have contained the crime number at that point of time. Any how, as rightly pointed by the learned Public Prosecutor, this was not specifically brought to the notice of the officers concerned and their explanations sought for. In the absence of any opportunity provided to the officers concerned and how the numbers came to be shown in those documents. That Crl. Appeal No.1476 of 2013 10 contention cannot be countenanced.
18. It was very vehemently contented that none of the independent witnesses were examined and that prosecution case rests on the official witnesses, who were parties in the detection squad. On perusal of the records, it is seen that earnest efforts were made by the Court below to procure the presence of the two independent witnesses made mention of in Ext.P1 Mahazar. None of them was available. It is not a case where the prosecution felt shy to examine the witnesses, but it is a case, where inspite of best efforts taken by the prosecution they could not procure the presence of those witnesses.
19. Going by the FSI report as rightly notified by the court below, the article possessed by the accused is ganja.
20. The result is that the court below was perfectly justified in coming to the conclusion that the offence under Section 20 (b) (ii) (B) has been made out. No grounds are made out to interfere with the findings of the court below. Crl. Appeal No.1476 of 2013 11
21. What now remains to be considered is the question of sentence. Considering the quantity of ganja seized and such other facts, it is felt that the sentence awarded is slightly on the high side. Thus, while confirming the conviction for the offence made mentioned of the sentence awarded by the court below is set aside and the accused is sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.15,000/- (Rupees Fifteen thousand only) with default clause of simple imprisonment for three months. Set off as per law is allowed.
Sd/-
P. BHAVADASAN, JUDGE sp //True Copy// P.A. to Judge