Kerala High Court
A.R.Ashok Kumar vs State Of Kerala on 23 January, 2009
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 2502 of 2008()
1. A.R.ASHOK KUMAR,
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.JOHN VARGHESE, ASSISTANT SG
For Respondent :SRI.P.K.SAJEEV
The Hon'ble MR. Justice V.K.MOHANAN
Dated :23/01/2009
O R D E R
V.K.MOHANAN, J.
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Crl.A.No. 2502 of 2008
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Dated this the 23rd day of January, 2009
J U D G M E N T
The complainant, viz., Superintendent of Central Excise, Customs Preventive and Intelligence Unit, Divisional Office Road, Thiruvananthapuram, is the appellant. This appeal is preferred against the judgment dated 5.12.2001 in Sessions Case No.378 of 1999 on the file of the court of the Special Judge for trial of cases under the N.D.P.S.Act, Thiruvananthapuram, which is a case instituted upon a complaint preferred by the appellant under Section 36(1)(3)(d) and 36(d)(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the N.D.P.S Act') for the offences punishable under Sections 21, 28 and 23 of the N.D.P.S.Act and Section 135 of the Customs Act, 1962 against the accused two in numbers. The second accused was absconding and hence the case against him is split up and transferred to L.P.Register as L.P.No.4 of 2000. The second respondent herein who is the first accused alone faced the trial. By the impugned judgment, the trial court acquitted the second respondent herein/first accused of all Crl.A.No. 2502 of 2008 :-2-:
the charges levelled against him. It is the above order of acquittal in favour of the first accused, challenged in this appeal.
2. The present appeal is filed with a delay of 1278 days whereas the alleged date of occurrence was on 6.3.1999 and the impugned judgment is dated 5.12.2001. This appeal comes up for admission today nearly after seven years from the date of impugned judgment. The second respondent herein who is the first accused is hereinafter called as only 'the accused'.
3. The prosecution case in a nutshell is as follows:-
On 6.3.1999, PW1, the then Superintendent, Air Intelligence Unit, Air Customs, Thiruvananthapuram received a confidential information that one Abdul Rasheed Abdul Rehman would be proceeding by Air Maldives flight carrying narcotic drug in a black bag. According to the complainant, PW1 recorded the information, sealed in a cover and prepared Ext.P1, the relevant portion of the information in DRI-1 form and conveyed it to PW5 his immediate superior officer at 3 p.m. and as per his instructions, PW1 arranged surveillance inside the terminal building near X-ray unit where the baggages of the passengers are inspected through X-rays. According to the complainant, PW1 sought the assistance of PW2 Ayyappan Nair and one Roy Crl.A.No. 2502 of 2008 :-3-:
Stephen, two trolley retrievers working at Thiruvananthapuram Airport as the independent witnesses. According to the prosecution, after the accused got his baggage X-rayed, PW1 identified him as Abdul Rasheed Abdul Rehman and asked for his travel documents and accordingly, the accused handed over his MO1 passport and MO2 tickets for his travel by Air Maldives flight. It is the further case of the complainant that the accused was then found possessing MO3 black zipper bag and a plastic bag. On examination of the plastic bag, it was found to be contained only his articles for daily use. PW1 thereafter took the accused to the Air Intelligence Unit room along with MO3 zipper bag and the plastic bag. According to PW1, on examination of the plastic bag and the person of the accused, nothing incriminating was found out. On examination of the zipper bag, it was found to be contained vegetables like potatoes, onions etc. On further detailed examination of MO3 bag, PW1 detected three plastic covers containing brown coloured powder and on the reasonable belief that the brown coloured powder found in the plastic covers would be narcotic drug, the same were subjected to test with A1 and A2 solutions from the narcotic drug testing kit. On weighing the drugs, it was found that the total weight of the Crl.A.No. 2502 of 2008 :-4-:
drug was 168.1 grams. Thus, PW1 prepared three samples of 5 gms. each from the 3 packets A,B,C and marked the respective samples as A1,A2,A3, B1.B2,B3 and C1,C2, C3. The remaining contraband articles were separately packed and sealed and those packets were identified as Mos.4 to 6. In each of the packets, PW1 obtained the signature of the accused, the witnesses and he had also put his signature. According to the prosecution, the accused was possessing Ext.P4 identity card issued by the Election Commission, apart from one American 20 dollar note, 3 American 10 dollar notes and 25 Maldives Rupia. According to the prosecution, PW1 prepared Ext.P5 mahazar describing the details and it was signed by the witnesses and the accused and PW1 also affixed his signature. PW1 thereafter served Ext.P6 summons to the accused under Section 67 of N.D.P.S.Act and Ext.P2 embarcation card issued by the Government of India was also in possession of the accused and the accused had signed Ext.P2(a) facing sheet. The accused was also possessing Ext.P3 embarcation-dis-embarcation card issued by the Government of Maldives. On the basis of Ext.P6 summons, the accused prepared Ext.P7 statement voluntarily which contained his signature. It was prepared in triplicate and Crl.A.No. 2502 of 2008 :-5-:
contained the signature of the Gazetted Officer and PW1 and one of the copies was given to the accused. Thereafter, PW1 arrested the accused. Ext.P8 is the arrest memo. Consequently, the case was registered against him as O.S.No.228 of 1999. To show the intimation given to the relatives of the accused regarding the arrest, Exts.P9 and P9(a) postal receipts are also produced. PW1 sent Ext.P10 report to his superior officer detailing the entire steps taken by him. The investigation was handed over to PW5. The accused was produced before the court and was remanded to judicial custody. On the basis of the report filed by the complainant, the sample packets were sent to Cochin Customs House Laboratory and PW4, the Assistant Chemical Examiner issued Ext.P11 report by which it is certified that the sample packets contained heroin, a narcotic drug. On the basis of Ext.P12 report, the other samples were forwarded to Central Revenue Control Laboratory for conducting quantitative test. PW5 questioned the accused and Ext.P13 statement was voluntarily prepared. It is PW5, who filed the complaint, upon which the court took cognizance. Though attempt was made to procure the presence of the second accused, it was not materialised. The case against the second accused was split up Crl.A.No. 2502 of 2008 :-6-:
after completing the steps under Sections 82 and 83 of the Cr.P.C. The second respondent herein/ the first accused remains in judicial custody.
4. After hearing the prosecution and defence, a formal charge was framed against the accused under Sections 21,28 and 23 of the N.D.P.S.Act and Section 135 of the Customs Act and when the charge was read over and explained to the accused, he pleaded not guilty. Consequently, the prosecution adduced evidence consisting of depositions of Pws.1 to 5 and documentary evidence such as Exts.P1 to P13. Mos. 1 to 9 were also identified and marked during the trial. The incriminating circumstances, which emerged during the evidence of the complainant, were put to the accused under Section 313 of the Cr.P.C. and he denied the same. No evidence is adduced from the side of the accused as defence evidence.
5. In this respect, it is relevant to note that though no defence evidence is adduced, the accused had totally denied the prosecution case. He had admitted that he was proceeding to Maldives on 6.3.1999 and he was intercepted by PW1 at Thiruvananthapuram International Airport. The accused contended that he had nothing to do with the narcotic drugs Crl.A.No. 2502 of 2008 :-7-:
seized from MO3 zipper bag. It is his further case that the present case was foisted against him on account of a dispute between the accused and the Intelligence Officer that occurred in the Airport. According to him, when he was standing in the queue at the ticket counter, he was called by the officers and they obtained his passport, ticket and the plastic kit containing his day to day articles and after inspecting them, he was asked to remain there and after sometime, he was taken in a Maruti car to a hospital where he was subjected to medical check up and nothing was recovered from his person and by 8.30 p.m., he was taken back to the Airport and he was asked to sit there and on the next day morning, he was asked to sign in some blank papers. According to him, he was not aware of anything else and he was taken to the court by 12 p.m. and thereafter, he is in jail. He had submitted that he lodged a complaint to the Home Secretary.
6. Based upon the materials and the pleadings, the trial court framed five issues for its consideration. Finally, the trial court found that though the evidence would conclusively establish that MO3 bag contained a narcotic drug which was seized by PW1, there is no conclusive evidence beyond reasonable doubt Crl.A.No. 2502 of 2008 :-8-:
that the accused was possessing MO3 bag as claimed by the prosecution. It was further held that it couldnot be conclusively held that the accused was possessing MO3 bag on 6.3.1999 as claimed by the prosecution. Thus, according to the trial court, the prosecution had failed to prove that the accused was possessing heroin, a narcotic drug on 6.3.1999. On the basis of the said finding, consequently it was held that the accused is not guilty and he is accordingly acquitted.
7. The case of the prosecution is sought to be proved mainly through the evidence of PW1 who is the detecting officer.
When he was examined, he had deposed in accordance with the allegation of the prosecution, especially with respect to the information, search and seizure. The evidence of PW4 supported by Ext.P11 report shows that when the sealed packets were opened, PW4 found three packets and the seals were intact. As per evidence of PW4, the packets A1,B1,C1 were respectively found weighing 5.126 grams, 5.035 grams and 5.036 grams and the contents of each of the packets were proved to be heroin, a narcotic drug. Ext.P12 report would further show that the packets A2,B2,C2 respectively contained 9.5%, 11.06% and 10.60% of morphine. Schedule 1 of the N.D.P.S.Rules Crl.A.No. 2502 of 2008 :-9-:
establishes that it is a narcotic drug and heroin is a diacetyl morphine. Regarding the search and seizure, the evidence of PW1 is corroborated by the evidence of PW2 and also by Ext.P5 mahazar. On the basis of documentary evidences such as Exts.P11 and P12, the prosecution has claimed that the contraband article alleged to have recovered from the accused is diacetyl morphine which is popularly known as heroin. The defence taken by the accused is that he has nothing to do with the zipper bag or the narcotic drug allegedly concealed in MO3 and seized by PW1. It is also not disputed by the accused that he was intercepted at the International Airport, Thiruvananthapuram when he was at the Airport to proceed to Maldives. MO1 Passport and MO2 Air ticket, Ext.P2 embarcation card and Ext.P3 embarcation-disembarcation card, Ext.P4 identity card etc. are sufficient materials to show that the accused was intercepted as alleged by the prosecution. The specific case of the accused is that when he was about to proceed to Maldives and when he was in the queue in front of the ticket counter, he was called by PW1 and his MO1 Passport, MO2 ticket and a plastic kit containing his articles needed for daily use were taken and he was made to wait at the Airport for sometime and finally, Crl.A.No. 2502 of 2008 :-10-:
after subjecting him to medical check up and thereafter, produced before the court. The trial court, after considering the materials adduced by the prosecution and after thorough evaluation of such materials and evidence, especially in the light of the defence taken by the accused, found that the accused is not guilty and accordingly, he is acquitted.
8. Challenging the order of acquittal, it is argued by the appellant that the court had erroneously and illegally acquitted the accused after having found that MO3 bag contained narcotic drug which was seized by PW1. It is the case of the appellant that Ext.P7 statement given by the accused is believable as the same is admissible as evidence and presumption can be drawn under Section 14 of the Indian Evidence Act. So, the appellant strongly condemned the approach of the court below in not accepting Ext.P7 statement, a document which was voluntarily prepared by the accused. It is also contended that no value was given by the court below for Ext.P10 report which was despatched to the Superior Officer by PW1 immediately on the next day. According to the appellant, the court committed a wrong in not accepting the evidence of PW2 who is an independent witness and who deposed before the court that he Crl.A.No. 2502 of 2008 :-11-:
had witnessed the search and seizure etc. The appellant is also aggrieved in not accepting Ext.P1 by the court below. Thus, according to the appellant, the prosecution has successfully discharged its duty in proving the offence against the second respondent herein/the first accused by producing cogent and satisfactory evidence supported by independent evidence and contemporaneous documents. Therefore, the order of acquittal passed by the court below is liable to be set aside.
9. On the other hand, the learned counsel appearing for the second respondent argued that the finding arrived on by the court below is fully on the basis of evidence and materials on record and the second respondent/ first accused was given the benefit of doubt as the prosecution failed to prove the case beyond reasonable doubt. Fully supporting the trial court judgment, it is submitted that though Section 42 of the N.D.P.S.Act is not a provision mandatory in nature, the violation of the same is one of the factors which have gone against the prosecution as correctly done by the trial court. The trial court, according to the learned counsel, after elaborate evaluation of the evidence of Pws.1,2 and 5 found that their evidence contained discrepancies, infirmities and contradictions and therefore, in the Crl.A.No. 2502 of 2008 :-12-:
absence of independent evidence, the trial court gave the benefit of doubt in favour of the accused regarding the allegation of possession of MO3 bag etc. It is also the case of the learned counsel that Ext.P7 is not a voluntary statement given by the accused. Therefore, the approach of the trial court in not accepting Ext.P7 as it has lost its character of voluntariness, is absolutely correct. Thus, the learned counsel pointed out that the trial court, which undertook the trial and had occasion to observe the demeanour of witnesses, had come to a conclusion that the second respondent herein/first accused is not guilty and thus the innocence of the accused is once again re-inforced. Further, no case is made out to call for the interference of this Court, and therefore, he submits that the appeal may be dismissed.
10. I have carefully considered the arguments advanced and also perused the evidence and materials on record. The prosecution case is that the accused was found in possession of 168.1 grams of heroin on 6.3.1999 which was concealed in MO3 zipper bag which was held by the second respondent herein at the International Airport, Thiruvananthapuram, who was about to leave for Maldives. As indicated above, the trial court also had Crl.A.No. 2502 of 2008 :-13-:
considered the evidence of PW1 with respect to the search and seizure etc. The above allegation and evidence of the prosecution was carefully scrutinized by the trial court in the background of the plea set up by the defence. In paragraph 6 of the impugned judgment, regarding the prosecution case, it was held that the question is how far the prosecution case is credible and believable. The defence had submitted that Ext.P1 is a concocted document and also argued that there is violation of Section 42 of the N.D.P.S.Act. The trial court found that even if there is violation of the provisions contained in Section 42, it will not vitiate the investigation or the trial. According to PW1, the crime was detected upon the search which was conducted based upon prior information received by him. Ext.P1 is the information. The challenge against Ext.P1 is that though the same is dated 6.3.1999 and it was claimed that the same was forwarded to the superior officer by PW1 forthwith, the same was produced before the court only on 4.9.2001 that too after fixing the schedule of the trial and hence according to the defence, this document was an artificial document which was created, subsequently. After verifying the records, the trial court found that Ext.P1 was not produced along with other contemporary documents. It was also Crl.A.No. 2502 of 2008 :-14-:
found that Ext.P1 was not produced before the court even at the time of filing the complaint before the court. The observation of the trial court that in the complaint, the factum of sending Ext.P1 to the immediate superior officer is conspicuously absent, is factually correct as I am unable to find any such averment in the complaint. Thus, the trial court found that the claim of PW1 that he had sent Ext.P1 report to his superior officer immediately on recording the same is false and incorrect. Thus, after discussing the entire materials on record, the trial court found that though Ext.P1 contained the seal of the Air Customs showing that it was despatched on 6.3.1999, it could have been manipulated subsequently as the corresponding records were not produced to prove that there was a despatch of that letter as shown in the seal. Thus, according to the trial court, there was violation of the provisions of subsection (2) of Section 42 of the N.D.P.S.Act. No materials or arguments are advanced before me to take a different view and therefore, I have to approve the above finding of the court below. Thus, according to me, there was a tendency on the side of the investigating agency to create document against the accused to substantiate the prosecution allegation.
11. Another ground considered by the court below is Crl.A.No. 2502 of 2008 :-15-:
regarding the alleged recovery of the contraband article from the possession of the accused. After analysis of the evidence of Pws.1 and 5, the trial court has observed that there is discrepancy regarding the procedure and the alleged recovery of the contraband articles. On a reading of deposition of Pws.1 and 5, it can be seen that according to PW1, PW5 was informed about the entire matter only after the accused was taken to Air Intelligence room and by the time, PW1 could intercept the accused and at that point, the time was at 3.45 p.m. According to PW1, he got the information at 3 p.m. and the accused reached at the Airport at about 3.45 p.m. But the evidence of PW5 is that he got the information from PW1 and reached the Intelligence Room by 3.15 p.m. and while so, PW1 and the accused were at the Air Intelligence room. Thus, on the basis of the said evidence, the trial court found that if that be so, the evidence of PW1 that the accused was intercepted at 3.45 pm and taken to the Intelligence Room and thereafter, as agreed to by the accused, PW5 was intimated and he reached there cannot be true. Thereafter, the trial court, on appreciating this evidence in the background of the evidence of PW2, held that the doubt strengthened more. The evidence of PW2 is that while he was Crl.A.No. 2502 of 2008 :-16-:
working as a trolley retriever at the Airport, he was called by PW1 and was taken to the place where baggages were x-rayed and then he found the accused, PW1 and PW5 standing there. Thus, if that evidence is believable, PW5 would have reached there even before the accused was taken to the Air Intelligence room and was standing along with PW1 and the accused. Thus, with respect to the conflict regarding the timing and the violation of Section 42(2) of the N.D.P.S.Act, the trial court found that the genuineness of the prosecution case is doubtful. The above finding is based upon the materials relied on by the prosecution itself. No material is cited or no evidence is shown and no argument is advanced to clear the doubt.
12. The trial court also found that there is no conclusive and acceptable evidence with respect to the recovery of MO3 bag from the possession of the accused. The trial court found that in the deposition of PW2, he had not deposed before the court that he found the accused holding MO3 bag at the Airport. He only deposed that he found PW1 examining MO3 bag. Even according to PW5, he reached at the spot only after the accused was taken to the Intelligence room. Thus, the trial court found that absolutely, there is no evidence to show that MO3 bag was Crl.A.No. 2502 of 2008 :-17-:
recovered from the possession of the accused. Thus, the trial court had finally concluded that the evidence connecting the accused with MO3 bag is seen from the deposition of PW1 and Ext.P7 statement recorded by him. The trial court declined to accept the evidence of PW1 in the absence of corroborating evidence from any independent sources. On evaluation of the entire factual scenario, especially in the light of the fact that the prosecution has a tendency to create concocted document as we have seen with respect to Ext.P1 report, it is not safe to believe the version of PW1 and Ext.P7 statement recorded by him in the absence of independent evidence to corroborate the same.
13. Another important point raised is that the trial court is not justified in rejecting Ext.P7 statement of the accused admitting his guilty. Analysing the evidence of PW1, it can be seen that as per Ext.P6, the accused was directed to appear before PW1 at 7.30 a.m. on 7.3.1999. As per the version of PW1, Ext.P6 was served on the accused after 7 p.m. As per Ext.P6, the accused was directed not to leave the office without permission. Thus, it is crystal clear that the accused was detained in the office of PW1, though the formal arrest was not recorded, right from the evening of 6.3.1999 till Ext.P7 statement Crl.A.No. 2502 of 2008 :-18-:
was recorded. With that reason alone, it cannot be said that Ext.P7 is a voluntary statement. It is to be noted that Ext.P7 is actually written by the Intelligence Officer namely, one Philip Sebastian while PW1 was questioning the accused. Ext.P13 is one of the statements of the accused recorded by PW5 on 24.4.1999 which is written in the handwriting of the accused himself. In Ext.P7 also, the last portion is written by the accused in his handwriting. From the above fact, it has been demonstratively proved that the accused was capable to write whatever he wanted to write and incorporate in Ext.P7 statement.
But, it is proved that the handwriting contained in Ext.P7 is that of one Philip Sebastian and not the handwriting of the accused and the same was recorded when PW1 was questioning the accused and that too, when the accused was under his custody, though the custody is not formally recorded. Therefore, I find no illegality or wrong in the finding of the court below that there is genuine doubt with regard to the voluntary nature of Ext.P7 statement. Thus, the trial court was not prepared to accept Ext.P7 confession statement of the accused which was obtained from him while he was under custody. In the above factual situation, I am also of the opinion that Ext.P7 cannot be treated as a Crl.A.No. 2502 of 2008 :-19-:
genuine and voluntary statement of the accused. Hence, the approach of the court below is absolutely correct.
14. Thus, on the basis of the available materials and evidences, especially with regard to the shabby nature of the evidence adduced by the prosecution, that too are not free from doubt and contradictions, it is found that there was an attempt on the part of the detecting officer to create artificial documentary evidence to strengthen the prosecution case. So on evaluation and assessment of the entire evidence and the prosecution case, it cannot be said that the prosecution has succeeded in establishing the case against the accused beyond reasonable doubt.
15. Thus, it can be seen that the trial court, based upon the materials and evidence on record, found that the prosecution has miserably failed to establish its case beyond reasonable doubt. I have already examined the correctness of the finding arrived at by the court below. On such re-appreciation of the evidence and examination of the observation and finding arrived at by the court below, I am of the view that nothing is brought out to take a different view from that of the trial court. In the decision reported in Ghurey Lal v. State of U.P. [2008(4) KLT SN 17 Crl.A.No. 2502 of 2008 :-20-:
(C.No.17)], the Apex Court has laid down certain circumstances under which the appellate court can interfere with an order of acquittal. In the said decision, the Honourable Supreme Court had held that unless there are very substantial and compelling reasons, the appellate court shall not interfere with the order of acquittal passed by the court below. The above position has been reiterated by the Apex Court as per its decision reported in Murugan and Anr. v. State Rep.by Public Prosecutor, Madras, Tamil Nadu and Anr. [2008(7) Supreme 260] and State of Punjab v. Sukhchain Singh and Anr. [2008(8) Supreme 776]. Again, the Apex Court, in the decision reported in Batcu Venkateswarlu and Ors. v. Public Prosecutor High Court of A.P. (2009(1) Supreme 67), had held that in the case of acquittal, there is a double presumption in favour of the accused and there must be substantial and compelling reasons for holding that the trial court was wrong. In the light of the discussion regarding the factual position and the evidence and as I have approved the finding arrived at by the court below, I find no compelling and substantial reasons to interfere with the order of acquittal passed by the court below.
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16. It is also pertinent to note that the alleged date of occurrence was on 6.3.1999 and the date of the impugned judgment is on 5.12.2001. Nearly ten years are over from the date of occurrence, when considering this appeal. So in this belated stage as there is no compelling and substantial reason to interfere with the order of acquittal, the appeal is only to be dismissed.
17. In the result, upholding the finding of the trial court that the prosecution has failed to prove the offence charged against the accused, the order of acquittal is confirmed and accordingly, this appeal is dismissed.
V.K.Mohanan, Judge MBS/ Crl.A.No. 2502 of 2008 :-22-:
V.K.MOHANAN, JJ.
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J U D G M E N T Crl.A.No. 2502 of 2008 :-23-:
DATED: -1-2009