Kerala High Court
P.Sakkariya vs The Sub Inspector Of Police on 18 February, 2025
Crl.Appeal No.51 of 2014
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2025:KER:13187
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 18TH DAY OF FEBRUARY 2025 / 29TH MAGHA, 1946
CRL.A NO. 51 OF 2014
AGAINST THE JUDGMENT DATED 04.01.2014 IN SC NO.72 OF
2011 OF SPECIAL COURT (NDPS ACT CASES), VADAKARA.
APPELLANTS/ACCUSED NOS.1 AND 2:
1 P.SAKKARIYA
S/O.MUHAMMED, POTTI HOUSE,
PUZHATHI AMSOM, KUNHIPALLI.
2 M.G.MOHANAN
S/O.GOVINDAN, MEMBELLATH HOUSE,
RAJAKUMARI, NADUMUTTAMKARA,
RAJAKKAD, IDUKKI.
BY ADV SRI.SUNNY MATHEW
RESPONDENTS/COMPLAINANT AND STATE:
1 THE SUB INSPECTOR OF POLICE
KANNUR TOWN POLICE STATION.
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,
PIN 682 031.
SRI.VIPIN NARAYAN, PUBLIC PROSECUTOR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
11/02/2025, THE COURT ON 18/02/2025 DELIVERED THE
FOLLOWING:
Crl.Appeal No.51 of 2014
2
2025:KER:13187
C.S.SUDHA, J.
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Crl.Appeal No.51 of 2014
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Dated this the 18th day of February 2025
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the appellants who are accused no.1 and 2 in S.C.No.72/2011 on the file of the Court of the Special Judge (NDPS Act Cases), Vatakara, challenge the conviction entered and sentence passed against them for the offence punishable under Section 22(b)(ii) (B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act).
2. The prosecution case is that on 14/12/2010 while PW3, Circle Inspector of Police, Kannur Town was in his office, he received reliable information that persons travelling in a Honda Activa scooter bearing registration no.KL 13 T 6266 from Kakkad side to Kannur would be carrying/possessing narcotic Crl.Appeal No.51 of 2014 3 2025:KER:13187 drugs/psychotropic substances. Hence, he along with party proceeded to the place and apprehended the accused persons. The first accused was riding the scooter and the second accused was the pillion rider. They were intercepted at Kannur - Kakkad road after Palakkad Swamimadam road junction. On inspecting the bags in their possession, the first accused was found in possession of 2.090 kgs and the second accused, 1.040 kgs of ganja. As per the final report/charge sheet, the accused were alleged to have committed the offences punishable under 20(b)(ii) (B) read with Section 29 of the Act.
3. PW3, Circle Inspector, Kannur Town, the detecting officer, registered crime no.1164/2010, that is, Ext.P10 FIR. PW6, Circle Inspector, Kannur City, the investigating officer, on completion of investigation submitted the final report alleging the commission of the offence punishable under the aforementioned section by the accused persons.
4. On appearance of the accused persons, the trial Crl.Appeal No.51 of 2014 4 2025:KER:13187 court after complying with the formalities contemplated under Section 207 Cr.P.C., framed a charge under Section 20(b) (ii)(B) of the Act, which was framed, read over and explained to the accused persons to which they pleaded not guilty.
5. On behalf of the prosecution, PW1 to PW6 were examined and Exts.P1 to P15 and MO.1 to MO.4 were marked. After the close of the prosecution evidence, the accused persons were questioned under Section 313(1)(b) Cr.P.C. regarding the incriminating circumstances appearing against them in the evidence of the prosecution. The accused persons denied all those circumstances and maintained their innocence.
6. As the trial court did not find it a fit case to acquit the accused persons under Section 232 Cr.P.C., they were asked to enter on their defence and adduce evidence in support thereof. DW1 was examined and Exts.D1 and D2 were marked on behalf of the accused persons.
7. On consideration of the oral and documentary Crl.Appeal No.51 of 2014 5 2025:KER:13187 evidence and after hearing both sides, the trial court by the impugned judgment found the accused persons guilty of the offence punishable under Section 20(b) (ii)(B) of the NDPS Act and hence sentenced them to rigorous imprisonment for 5 years each and to a fine of ₹75,000/- each and in default to rigorous imprisonment for one year each. Set off under Section 428 Cr.P.C. has been allowed. Aggrieved, the accused persons have come up in appeal.
8. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the appellants/accused persons by the trial court are sustainable or not.
9. Heard both sides.
10. It was submitted by the learned counsel for the appellants/accused persons that there has been violation of the mandatory provisions of Section 42 of the Act and hence the accused persons are entitled to be acquitted. Per contra, it was Crl.Appeal No.51 of 2014 6 2025:KER:13187 submitted by the learned public prosecutor that there has been sufficient compliance of the mandatory provisions and that the impugned judgment calls for no interference.
11. According to PW3, the detecting officer, when he received confidential information about the transit of the contraband, he had reduced the same into writing that is, Ext.P2 and forwarded the same to his superior officer. However, in Ext.P9 mahazar as well as in Ext.P10 FIR, it is stated that he had informed his superior officer over phone. Therefore, referring to Section 42 of the Act, the argument advanced by the learned counsel for the appellant/accused is that there has been non- compliance of the statutory provision and hence on the said sole ground the appellants/accused persons are entitled to be acquitted. On the other hand, it was submitted by the learned public prosecutor that PW3 had informed the receipt of the information over phone to his superior officer. This was sufficient compliance of Section 42 of the Act. Moreover, the information Crl.Appeal No.51 of 2014 7 2025:KER:13187 which was reduced into writing, that is, Ext.P2 was forwarded to the superior officer, which was a subsequent event and hence the same could not have found a place in Ext.P2 mahazar.
12. Section 42 of the Act says that any officer referred to in Section 41 or any such officer empowered by the State, has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed, then he can enter into and search any such building, conveyance or place and effect search and seizure. Therefore, if the officer receives information, then he must reduce the same into writing and send copy of the same within seventy two hours to his immediate superior officer. In Ext.P9 mahazar which is stated to have been prepared contemporaneously at the scene of occurrence pursuant to the search and seizure, the case of PW3 is that he had informed his superior over the phone. There Crl.Appeal No.51 of 2014 8 2025:KER:13187 is no case in Ext.P9 that the information which he is alleged to have received while in the office was reduced into writing and the copy of the same forwarded. In Ext.P10 FIR also the case of PW3 is that on receipt of information he had informed the same to his superior, that is, to the Dy.S.P., over telephone and then along with his team proceeded to the place of occurrence. However, PW3 in the box has a case that on receipt of information he had informed his superior over phone as well as in writing, the copy of which is Ext.P2. This is certainly an improvement made in the story narrated in Ext.P9 and Ext.P10. It is doubtful whether the information had been reduced into writing and a copy of the same forwarded to the superior officer before PW3 is stated to have left for the place of occurrence. This is one aspect which raises doubts regarding the prosecution case.
13. Admittedly, the provisions of Section 52A of the Act has not been complied with. In Bharat Aambale v. State of Chhattisgarh, Crl.Appeal No.250/2025 arising out of Crl.Appeal No.51 of 2014 9 2025:KER:13187 SLP(CRL) No.14420/2024 dated 06/01/2025, the Apex court after referring to the several precedents on the point including Union of India v. Mohanlal, 2016 ICO 558, held that mere non- compliance of the procedure under Section 52A of the Act or the standing order(s)/rules thereunder will not be fatal to the trial unless there are discrepancies in the physical evidence rendering the prosecution's case doubtful, which may not have been there, had such compliance been done. Courts must take a holistic and cumulative view of the discrepancies that may exist in the evidence adduced by the prosecution and appreciate the same more carefully keeping mind the procedural lapses. If the remaining materials on record adduced by the prosecution, oral or documentary inspire confidence and satisfy the court as regards the recovery as well as conscious possession of the contraband from the accused persons, then even in such cases, the courts can without hesitation proceed to hold the accused guilty notwithstanding any procedural defect in terms of Section 52A of Crl.Appeal No.51 of 2014 10 2025:KER:13187 the NDPS Act. Noncompliance or delayed compliance of the said provision or rules thereunder may lead the court to draw an adverse inference against the prosecution. However, no hard and fast rule can be laid down as to when such inference may be drawn, and it would all depend on the peculiar facts and circumstances of each case. Where there has been lapse on the part of the police in either following the procedure laid down in Section 52A of the Act or the prosecution in proving the same, it will not be appropriate for the court to resort to the statutory presumption of commission of an offence from the possession of illicit material under Section 54 of the Act, unless the court is otherwise satisfied as regards the seizure or recovery of such material from the accused persons from the other material on record. Therefore, I will consider whether the materials on record are sufficient to find the accused persons/appellants guilty of the offence alleged against them.
14. PW3, the then Circle Inspector, Kannur Town is Crl.Appeal No.51 of 2014 11 2025:KER:13187 stated to be the detecting officer. PW1, who is alleged to have been in his team when he proceeded to the place of occurrence, was A.S.I. Police Control Room, Thalassery. According to PW1, on 14/12/2010, he had gone to the office of the Circle Inspector, Kannur to have a discussion relating to a theft case. While he was in the office of the Circle Inspector, the latter received reliable information relating to the transport of narcotic drugs and as directed by the Circle Inspector, that is, PW3, he had accompanied him to the scene of occurrence and was present during the search and seizure. To disprove this fact, the appellants/accused examined DW1, the SHO, Thalassery police station. Ext.D1 is the copy of the general diary dated 14/12/2010 of Thalassery police station. Ext.D2 is the copy of the general diary for the period from 12/12/2010 to 15/12/2010. DW1 deposed that as per Ext.D1, on 14/12/2010 PW1 was on duty with the Circle Inspector. DW1 did not specify whether the said Circle Inspector was the Circle Inspector, Thalassery or whether it was Crl.Appeal No.51 of 2014 12 2025:KER:13187 Circle Inspector, Kannur town. Therefore, the trial court concluded that PW1 could have been with the Circle Inspector, Kannur also, that is, PW3. On what basis such a conclusion has been arrived at is not clear. DW1 was examined specifically to prove the case of the appellants/accused that PW1 was not with PW3 on the date of the incident. It is pertinent to note that there was no cross examination of DW1 by the prosecutor. It appears that PW1 on the relevant day was with the Circle Inspector, Thalassery and not with PW3, Circle Inspector, Kannur town. Therefore, the prosecution case that PW1 was in the team along with PW3 on the relevant day is highly doubtful.
15. Admittedly, the sampling was done by PW3, who deposed that he had affixed the seal of the SHO on the sample packet as well as the packet containing the residue ganja. No specimen impression of the seal alleged to have been affixed has been given in Ext.P9 mahazar. The specimen impression of the seal has not been produced separately also. It is true that Crl.Appeal No.51 of 2014 13 2025:KER:13187 Ext.P13 copy of the forwarding note contains the specimen impression of the seal of the SHO. Ext.P15 chemical analysis report shows that the sample tested was contraband substance. However, mere production of a laboratory report that the sample tested is contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be correlated. (See Vijay Pandey v. State Of U.P. , AIR 2019 SC 3569)
16. Here I refer to the dictum of the Division Bench of this Court in Ravi v. State of Kerala, 2011 (3) KLT 353, in which it has been held that prosecution has a duty to show that the sample allegedly drawn from the contraband article, said to have been seized from the possession of the accused, reached the hands of the chemical examiner in a full proof condition. It is true that the said decision was rendered interpreting the provisions of the Kerala Abkari Act, 1077. The sampling procedure followed by the officer concerned under both the Acts are more or less the same. Here though PW3, who is stated to Crl.Appeal No.51 of 2014 14 2025:KER:13187 have drawn samples from the contraband seized from the accused says that he had affixed the seal of the SHO on the sample packet as well as the packet containing the residue, the specimen impression of the seal has not been given in Ext.P9 mahazar. He has also not produced the same separately. Therefore, when the specimen of the seal affixed on the sample is not produced before the court and forwarded to the chemical examiner for verification to ensure that the sample seal so provided is tallying with the seal affixed on the sample, no evidentiary value can be attracted to the to the chemical analysis report. Ext.P15 chemical report despite the absence of the sample seal being provided, it is certified that the seal of the sample cover was intact and that it tallied with the sample seal provided. It is true that Ext.P13 forwarding note refers to a specimen seal. But there are no materials to ascertain whether this was the sample seal affixed on the sample. No evidentiary value can be given to Ext.P15 chemical report in the absence of any link evidence to show that the very same sample Crl.Appeal No.51 of 2014 15 2025:KER:13187 which was drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner. In these circumstances, I find that the accused persons are entitled to the benefit of doubt.
In the result, the appeal is allowed and the conviction and sentence imposed against the appellants by the trial court for the offences punishable under Section 20(b) (ii)(B) of the Act is set aside. The accused persons are acquitted under Section 235(1) Cr.P.C. They are set at liberty and their bail bond shall stand cancelled.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA JUDGE Jms