Kerala High Court
Ibrahim vs The Sub Inspector Of Police on 1 October, 2013
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
TUESDAY, THE 12TH DAY OF NOVEMBER 2013/21ST KARTHIKA, 1935
CRL.A.No. 1467 of 2013 ()
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(AGAINST THE JUDGMENT IN SC.NO. 51/2012 OF SPECIAL COURT (NDPS ACT
CASES), VATAKARA DATED 01-10-2013)
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APPELLANT/ACCUSED:
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IBRAHIM,S/O.UMMERKUTTY,
PALATHINKAL HOUSE, PAYYAPPARAMBU,
PANDIKKAD, SCHOOLPADI, MALAPPURAM.
BY ADV. SRI.SUNNY MATHEW
RESPONDENT(S)/COMPLAINANT AND STATE:
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1. THE SUB INSPECTOR OF POLICE,
KALIKAVU POLICE STATION,
MALAPPURAM DISTRICT- 673 001.
2. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.PIN- 682 031
BY PUBLIC PROSECUTOR SRI.DHANESH MATHEW MANJOORAN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 12-11-2013, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
sts
P.BHAVADASAN, J.
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Crl.A. No. 1467 of 2013
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Dated this the 12th day of November, 2013
J U D G M E N T
The accused was prosecuted for the offence punishable under Section 20(b)II(B) of NDPS Act. He was found guilty and was convicted and sentenced to suffer rigorous imprisonment for three years and to pay a fine of 75,000/- with a default clause of rigorous imprisonment for six months. Set off as per law was allowed.
2. On 23.07.2012 at about 15.30 hours, the SI of Police, Kalikavu Police Station, on receiving information, intercepted the accused who was found in possession of 2.100kg of 'Ganja' in a white plastic cover wrapped in brown paper near the Chenkode bridge in Karuvarankundu- Kalikavu public road. The search was conducted in the presence of a gazetted officer and samples were taken and all proceedings were completed. Ext.P1 mahazar was prepared and Ext.P2 arrest memo was also drawn up. Crl.A. No. 1467 of 2013 -2- Compliance under Sections 42 and 50 of NDPS Act are as per Exts. P3 and P4. After detection, the Police Officer returned to the Police Station and registered crime as per Ext.P5, FIR. The Investigating Officer obtained a plan of the place of incident and articles seized was sent for chemical analysis and chemical analysis report is marked as Ext.P12. After completing investigation, final report was laid.
3. On appearance of the accused, all formalities were completed. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore examined PWs 1 to 8 and had Exts. P1 to P14 marked. MOs 1 to 6 were got identified and marked.
4. 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. According to him, he was nabbed from his house with 10,000/- and he was framed in the case.
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5. Finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. He examined DW 1. Accepting the evidence of PWs 1, 2 and 3 and finding that all the procedural formalities have been complied with and finding that the articles seized is Ganja, the court below found the accused guilty and conviction and sentence as already mentioned followed.
6. The learned counsel appearing for the appellant contended that conviction and sentence cannot stand and there is no compliance of statutory requirements. It is also pointed out that the evidence of the independent witness is also open to serious doubt and the seizure itself is not established. The learned counsel also pointed out that the sentence imposed is on the high side.
7. PW1 is the independent witness to prove detection, arrest and seizure. According to his testimony, on the date of incident, while he was returning from Karuvarankundu along with another person on a Motor bike, Crl.A. No. 1467 of 2013 -4- they saw the Police intercepting the accused. He speaks about the detection and the search conducted on the body of the accused. He also deposes that a brown paper was recovered from the possession of the accused and on opening it, it was found containing 'Ganja'. He speaks about the samples taken by the SI of Police and also the procedures followed by the Sub Inspector of Police. He identified the signature on the various documents shown to him at the time of evidence. In cross examination, he admitted that he was the regular witness of such seizures and recoveries.
8. PW2 is the Sub Inspector of Police who was the detecting officer. He would depose that on getting secret information about the sale of Ganja, he had gone to the place of occurrence after sending a report under Section 42 of NDPS Act to his Superior Officer. After having the necessary equipments for the purpose of detection, he reached near the Chengode Bridge. He happened to see a Crl.A. No. 1467 of 2013 -5- person who matched the identification which he received, standing with a plastic cover in his hand. He was questioned and asked about the contents of the bag. He would say that the accused did not disclose the contents of the bag. PW2 would say that he then informed the accused that he suspected that the accused was in possession of Ganja and informed about the legal right which he had to have the presence of a Magistrate or a Gazetted Officer, if he so insisted. On the affirmative answer given by the accused, Excise CI was brought to the spot and in his presence, the search was conducted and after confirming that the Police party have no contraband articles with them, the articles in the possession of accused was seized. On examination, it was found containing 'Ganja'. This witness would say that the 'Ganja' weighed 2.100kg. He took three samples each containing 50gms of 'Ganja' and affixed label on the same and numbered it as S1, S2 and S3. Remaining 'Ganja' was packed in a polythene cover and on that also seal was Crl.A. No. 1467 of 2013 -6- affixed and signatures were obtained. The money found in the pocket of the accused was also taken possession of and Ext.P1 mahazar was prepared. They returned to the station and registered crime as Crime No. 179/2012 as per Ext.P5, FIR. The materials seized were produced before court on 24.07.2012 and he speaks about having been questioned by the Investigating Officer.
9. Ext.P3 shows that he had sent the necessary intimation to the superior officer under Section 42 of NDPS Act and Ext.P4 shows that he had complied with Section 50 of the NDPS Act also. It is come out from the evidence of PW2 that as required by the accused, the Excise CI was brought to the spot and search was conducted in his presence. PW3 was one of the Police Party who had gone for detection of the same. PW4 was the Excise Inspector who was brought from the station in whose presence the search was conducted. Even though, PWs 3 and 4 were cross examined at length, nothing could be brought out from their Crl.A. No. 1467 of 2013 -7- evidence to make their testimony suspicious.
10. PW8 is the CI of Police, the Investigating Officer of this case who deposes having received Ext.P3 report under Section 42 of the NDPS Act and also speaks about having received Ext.P6 report under Section 52 of the NDPS Act. He claims to have prepared Ext.P9 scene mahazar and he also deposes that he has prepared a forwarding note to send the material objects for chemical examination. Forwarding note is marked as Ext.P11. He obtained the chemical analysis report and speaks about having laid the final report.
11. The accused had attempted to show that he was nabbed in the presence of DW1, who is none other than the wife of the accused. The court below has considered her evidence in considerable detail and has come to the conclusion that her evidence is not capable of acceptance and the story that the accused was nabbed from his house also cannot be accepted.
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12. The evidence of PWs 1, 2 and 3 clearly show that there was a detection as put forward by the prosecution. The evidence of PW4 is sufficient to show that there was contraband substance seized which would attract the provisions of NDPS Act.
13. Strictly speaking, there was no body search because the accused was found carrying the contraband articles in a plastic bag. Whatever that be, even assuming that Section 50 of the NDPS Act is applied, there is sufficient compliance with the same. The court below was therefore perfectly justified in coming to the conclusion that the offences have been established. Conviction has only to stand.
14. The learned counsel appearing for the appellant then contended that there is no criminal antecedents for the accused and some leniency may be shown with regard to the sentence.
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15. There is nothing to show that the appellant is a habitual offender or that he has criminal antecedent. Considering the said fact, it is felt that some leniency need be shown with regard to the sentence.
In the result, while confirming conviction of the accused for the offence under Section 20(b)II(B) of NDPS Act, the sentence imposed by the court below is set aside and instead he is sentenced to undergo rigorous imprisonment for 18 months and to pay a fine of 25,000/- in default of payment of which he shall suffer two months simple imprisonment. Set off as per law is allowed.
P.BHAVADASAN JUDGE ds