Kerala High Court
Ashkar vs State Of Kerala on 8 July, 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
WEDNESDAY, THE 08TH DAY OF JULY 2020 / 17TH ASHADHA, 1942
CRL.A.No.1305 OF 2015(A)
AGAINST THE JUDGMENT IN SC 209/2015 DATED 11-11-2015 OF VI
ADDITIONAL DISTRICT AND SESSIONS COURT, ERNAKULAM
CRIME NO.8/2013 OF Ernakulam E.E & A.N.S.S. , Ernakulam
APPELLANT/ACCUSED:
ASHKAR
AGED 39 YEARS
S/O. ABOO, PADIYATHUPARAMBIL (H), FORTKOCHI KARA,
FORTKOCHI VILLAGE, KOCHI TALUK, NOW RESIDING AT
THE HOUSE OF T.M.NOUSHAD, TACHAVALLIATH VEEDU,
CHOORNIKARA KARA, ALUVA VILLAGE, ALUVA TALUK.
BY ADV. SRI.P.ANTO THOMAS
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP. BY C.I. OF EXCISE, EE & ANSS, ERNAKULAM,
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
SRI S S ARAVIND - AMICUS CURIAE,
SRI SANTHOSH PETER -SR PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-07-
2020, THE COURT ON 08-07-2020 DELIVERED THE FOLLOWING:
Crl.A. No. 1305 of 2015
2
R. NARAYANA PISHARADI, J
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Crl.A. No. 1305 of 2015
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Dated this the 8th day of July, 2020
JUDGMENT
The appellant is the sole accused in the case S.C.No.209/2015 on the file of the Additional Sessions Court-VI, Ernakulam.
2. The appellant stands convicted and sentenced for committing an offence punishable under Section 8(c) read with Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act').
3. The prosecution case is as follows: On 18.02.2013, the Circle Inspector (PW1) of Excise Enforcement and Anti-narcotic Special Squad, Ernakulam, was conducting patrol duty with excise party. At about 13.00 hours, when he reached near the bus waiting shed at Chunangamvely Junction in Aluva-Perumbavoor road in Aluva East Village, he saw the accused sitting on a motor cycle which was parked on the side of the road. On seeing the vehicle of the excise party, the accused tried to start the motor cycle and to leave the place. PW1 obstructed the accused and questioned him. On suspicion, after Crl.A. No. 1305 of 2015 3 complying with necessary formalities, PW1 conducted search of the body of the accused in the presence of the Excise Circle Inspector (PW3) of Aluva, who had reached there at his request. The accused was wearing a lungi. PW1 found a packet on the right fold of the lungi worn by the accused. The packet contained 35 ampoules, two millilitres each, of the psychotropic substance by name Buprenorphine. PW1 took samples from the contraband substance and prepared Ext.P6 mahazar and seized the articles and arrested the accused.
4. The case against the accused was registered as NDPS CR.No.8/2013. PW1 produced the accused and also the material objects before the court on 19.02.2013. The investigation of the case was conducted by PW5 who was the Excise Circle Inspector of Ernakulam. After completing the investigation, PW5 filed complaint against the accused for the offence punishable under Section 8(c) read with Section 22(c) of the Act.
5. The trial court framed charge against the accused for the offence punishable under Section 8(c) read with Section 22(c) of the Act. The appellant/accused pleaded not guilty and he claimed to be tried.
6. The prosecution examined PW1 to PW5 and marked Exts.P1 to P18 documents and MO1 to MO10 material objects. No evidence was Crl.A. No. 1305 of 2015 4 adduced by the accused.
7. The trial court found the accused guilty of the offence punishable under Section 8(c) read with Section 22(c) of the Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of one year. Conviction and sentence entered against the accused by the trial court are challenged in this appeal.
8. Since the counsel holding the vakkalath for the appellant failed to appear before the court on the hearing dates and since the appellant had sent representation from the jail for speedy disposal of the appeal, this Court appointed Advocate Sri.S.S.Aravind as amicus curiae. I have heard him and the learned Public Prosecutor. I have also perused the records.
9. The prosecution has examined five witnesses. PW1 is the Excise Circle Inspector who detected the offence. PW2 is the Assistant Chemical Examiner who conducted analysis of the samples in the laboratory and issued Ext.P15 chemical analysis certificate. PW3 is the Excise Circle Inspector of Aluva who had reached the spot of the occurrence at the request of PW1 to witness the search. PW4 is the Crl.A. No. 1305 of 2015 5 independent witness examined by the prosecution to prove the occurrence. PW5 is the Excise Circle Inspector of Ernakulam who conducted the investigation of the case.
10. PW1 has given evidence in detail narrating the occurrence. He has deposed with regard to the steps taken by him before conducting search of the body of the accused. He has also deposed in detail regarding the search of the body of the accused, seizure of the psychotropic substance from the possession of the accused, taking of samples and the arrest of the accused at the spot. He identified the accused in the court as the person from whom the seizure of the contraband substance was made. He also identified in the court the contraband substance seized from the possession of the accused which was retained after taking the samples.
11. PW3 Excise Circle Inspector had reached the spot of the occurrence at the request of PW1. He has deposed that he reached the spot of the occurrence on information given to him by PW1 regarding the detention of the accused there. He has given evidence regarding the seizure of 35 ampoules of Buprenorphine by PW1 on conducting search of the body of the accused. He also gave evidence that he affixed his signature in Ext.P6 mahazar prepared by PW1. Crl.A. No. 1305 of 2015 6
12. PW4, the independent witness examined by the prosecution, supported the prosecution case against the accused. He has deposed that the excise officer conducted search of the body of the accused and seized 35 ampoules of the contraband substance. PW4 identified his signature in Ext.P6 seizure mahazar and also on the labels affixed on the material objects.
13. PW1 has sworn to the entire incident in necessary details. His evidence, with regard to the seizure of the contraband substance from the possession of the accused, is corroborated by the evidence of PW3 and also PW4, the independent witness. The recitals in Ext.P6 mahazar, the contemporaneous document prepared by PW1 at the spot of the occurrence, also corroborate his testimony. There is no striking improbability or material contradiction or discrepancy in the evidence of PW1, PW3 and PW4 regarding the seizure of the contraband substance from the possession of the accused.
14. There is no whisper of an allegation that PW1 had any motive to falsely implicate the accused/appellant in such a serious crime. There is nothing to show that the excise officers have falsely implicated the appellant with a view to settle any personal score with him. In such circumstances, there is no sufficient ground to disbelieve the evidence of PW1, PW3 and PW4 regarding the seizure of the Crl.A. No. 1305 of 2015 7 contraband substance from the possession of the appellant.
15. A suggestion was made to PW1 in the cross-examination that the accused was taken into custody by the excise party from his house on 16.02.2013 and that a complaint had been given in the Aluva police station on that day regarding the missing of the accused. PW1 denied the suggestion that he had taken the accused into custody from his house on 16.02.2013. No steps were taken by the accused to summon from the police station the complaint allegedly given there.
16. Ext.P4 is the search list prepared by PW1. It contains the signature of the accused. PW1 has given evidence to that effect. Ext.P5 is the arrest memo prepared by PW1 at the time of arresting the accused. Ext.P5 also bears the signature of the accused. Ext.P7 is the intimation regarding the arrest of the accused given to his wife. There is no challenge made to the signature of the accused in Exts.P4 and P5 documents. The accused has no case that he had put his signature in these documents not at the spot of the occurrence but at the excise office or some other place. No suggestion to that effect was made to PW1 in the cross-examination. Further, there is the evidence of PW4, the independent witness, regarding the arrest of the accused from the spot of the occurrence. In such circumstances, it is established that the accused was arrested from the spot of the Crl.A. No. 1305 of 2015 8 occurrence and not from any other place.
17. Ext.P15 is the certificate of chemical analysis received in respect of the samples sent for analysis. Ext.P15 shows that Buprenorphine was detected in the samples.
18. There is no challenge made by the accused during the cross- examination of PW1 with regard to the procedure adopted in taking the samples at the spot of the occurrence. The samples were produced before the court without delay and forwarded for chemical examination. The accused has no plea that there was any infirmity or impropriety in the procedure adopted by PW1 in those matters. Ext.P9 property list prepared by PW1 for producing the material objects before the court shows that there was label and seal on the packets containing the samples and the remaining substance. Ext.P10, the copy of the forwarding note submitted by PW1 for sending the samples for analysis, bears the specimen of the seal which was affixed on the sample packets. Ext.P15 chemical analysis report shows that, when the samples reached the laboratory for analysis, the seals on the packets were intact and that they tallied with the sample seal provided in the forwarding note. Therefore, it can be safely concluded that the very same samples taken at the spot of the occurrence from the substance seized from the possession of the accused were produced Crl.A. No. 1305 of 2015 9 before the court and they were forwarded to the laboratory and tested there and that Ext.P15 is the result of the chemical examination done in respect of those samples.
19. The contentions raised by the learned amicus curiae before this Court are the following: (1) The provisions contained Section 42 of the Act were not complied with by PW1 and it is fatal to the prosecution case. (2) The provision contained in Section 50(1) of the Act was not complied with properly. (3) The provision contained in Section 52(3) of the Act was not complied with by PW1. (4) The investigation of the case was conducted and complaint was filed by an officer who had no authority to do so.
20. There is no merit in the contention raised by the learned counsel for the appellant regarding non-compliance with the provisions contained in Section 42 of the Act.
21. Section 42(1) of the Act provides for entry, search, seizure and arrest without warrant or authorisation. According to this provision, where an empowered officer, who has reason to believe from personal knowledge or information given by any person and who has taken down in writing that any narcotic drug or psychotropic substance in respect of which an offence punishable under the Act has been committed or any document or other article which may furnish Crl.A. No. 1305 of 2015 10 evidence of the commission of such offence is kept or concealed in any building or conveyance or enclosed place, may, between sunrise and sunset, enter into and search any such building, conveyance or place. Section 42(2) of the Act provides that where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.
22. PW1 was an excise officer in the rank of Excise Circle Inspector. He is an empowered officer by virtue of the notification issued by the Government of Kerala as G.O.(MS) No.146/90/TD dated 22.10.1990 under Section 41(2) of the Act by which all police officers in the police department of and above the rank of Sub Inspector of Police and all officers of the Excise Department of and above the rank of Excise Inspectors have been empowered to act under Section 42 of the Act (See Sasi v. State of Kerala : 2001 (3) KLT 396).
23. Section 42 of the Act comprises of two components. One relates to the basis of information, that is, (i) from personal knowledge (ii) information given by person and taken down in writing. The second is that the information must relate to commission of offence punishable under Chapter IV of the Act and/or keeping or concealment of document or article in any building, conveyance or Crl.A. No. 1305 of 2015 11 enclosed place which may furnish evidence of commission of such offence. Unless both the components exist Section 42 of the Act has no application (See Rajendra v. State of M.P : AIR 2004 SC 1103 and Krishna Kanwar v. State of Rajasthan : AIR 2004 SC 2735).
24. In the instant case, PW1 had no personal knowledge or prior information of the accused carrying the contraband substance. Therefore, there was no occasion or necessity for him to act upon any such information. This is a case of chance recovery effected during routine patrolling of the excise party.
25. Section 42 of the Act has no application in the absence of any personal knowledge or information by the detecting officer. In case of chance recovery effected at a public place during routine patrolling of the excise party, the provisions contained in Section 42 of the Act are not attracted (See Ram Kumar v. Central Bureau of Narcotics : (2008) 5 SCC 385).
26. Section 42 of the Act would be invocable only if the search is made by the officer upon prior information. It is settled proposition of law that when such an information or intimation or knowledge comes to the notice of the detecting officer in the course of regular patrolling, it is not necessary to follow the conditions incorporated in Section 42 of the Act (See Hamidhbai Azambhai Malik v. State of Gujarat : Crl.A. No. 1305 of 2015 12
AIR 2009 SC 1378).
27. Section 42(2) of the Act has also no application to the facts of the case. PW1 was an officer in the rank of Excise Circle Inspector. The appellant has no case that PW1 was not a gazetted officer or that he was not an officer authorised by the State Government. When the search is conducted by the detecting officer, who is a gazetted officer himself, Section 42(2) of the Act has no application (See Prabhulal v. Assistant Director : AIR 2003 SC 4311, Srinivas Goud v. State of A.P: AIR 2005 SC 3647 and Sekhar Suman Verma v.
Superintendent of N.C.B : AIR 2016 SC 3193).
28. Learned amicus curiae has contended that there is no reliable evidence to find that the accused was made aware of his right to be searched in the presence of a gazetted officer other than PW1 or a Magistrate and therefore, there was violation of the provision contained in Section 50(1) of the Act.
29. Section 50(1) of the Act mandates that an empowered officer should necessarily inform the suspect about his legal right to be searched in the presence of a gazetted officer or a Magistrate.
30. The Constitution Bench in Vijaysinh Chandubha Jadeja v. State of Gujarat : AIR 2011 SC 77 has held as follows:
"We are of the firm opinion that the object with which Crl.A. No. 1305 of 2015 13 right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search".
31. In the instant case, the evidence of PW1 is that he told the accused that he could legally demand the presence of a Magistrate or a gazetted officer for conducting search of the body. PW1 has also deposed that he gave Ext.P1 notice to the accused in this regard. Ext.P1 notice is in Malayalam. It shows that PW1 had made the accused aware of his right to demand the presence of a gazetted officer or Magistrate for conducting search of the body. What was conveyed to the accused was not that he had an option in that regard but he was made aware of his right.
Crl.A. No. 1305 of 201514
32. PW1 has deposed that the accused told him that there was no need to obtain the presence of another person for conducting search of his body and that he gave consent for being searched by PW1 himself. PW1 has stated that the accused wrote Ext.P2 consent letter in his own handwriting and gave it to him. Ext.P2 consent letter confirms this testimony of PW1.
33. In Sekhar Suman Verma (supra), the Apex Court has observed as follows:
"Lastly, so far as compliance of the requirement of Section 50 is concerned, it was found and indeed rightly that the offer to search the appellant was given to him in writing and on his giving consent, he was accordingly searched. The High Court was, therefore, right in upholding the procedure followed by the raiding party for ensuring compliance of Section 50 and rightly held against the appellant on this issue".
34. The decision referred to above would show that, on the basis of the consent letter given by the accused, PW1 could have conducted search of the body of the accused without ensuring the presence of another gazetted officer. However, the evidence of PW1 shows that, despite the consent so given by the accused, he thought it fit to obtain the presence of another gazetted officer. The evidence of PW1 shows that PW1 contacted the Inspector of Police, Aluva to witness the Crl.A. No. 1305 of 2015 15 search but he expressed difficulty to reach the spot as he was on law and order duty. PW1 has given evidence that he thereafter contacted PW3 and obtained the presence of PW3 for conducting search of the body of the accused. The recitals in Ext.P6 mahazar and the evidence of PW3 also corroborate the testimony of PW1 to the above effect. If at all there is any variation or mistake in Ext.P6 mahazar, it is in stating the sequence in which the aforesaid facts but it does not in any manner affect the credibility of the testimony of PW1.
35. Ext.P1 is the notice given to the accused by PW1 making him aware of his right under Section 50 of the Act. Ext.P1 contains the signature of the accused acknowledging receipt of it. Not even a suggestion was made to PW1 in the cross examination that he had not given the notice to the accused. What is required under Section 50 of the Act is to make the suspect or the accused aware of his right to be searched in the presence of a gazetted officer or a Magistrate. In the present case, Ext.P1 notice would reveal that the accused was made aware of his right and it was not merely an option given to him. The suspect person may or may not choose to exercise the right provided to him under Section 50 of the Act. Inspite of the waiver of his right by the accused as stated in Ext.P2 consent letter, the presence of another gazetted officer was obtained to witness the search. In such Crl.A. No. 1305 of 2015 16 circumstances, there was no violation of the provisions contained in Section 50 of the Act.
36. Another contention raised by the learned amicus curiae is that the accused and the seized articles were not produced by PW1 before the officer-in-charge of the nearest police station, or the officer empowered under Section 53 of the Act to conduct the investigation of the case, and that it amounts to violation of the provision contained in Section 52(3) of the Act and it is fatal to the prosecution case.
37. In the present case, PW3 was the Excise Circle Inspector of Aluva and since PW3 himself had witnessed the search and the seizure, it was not necessary to produce the accused and the articles seized before him. The evidence of PW1 shows that he produced the accused and the relevant documents and the material objects before the court concerned on the next day, that is, on 19.02.2013. Therefore, violation of the provision contained in Section 52(3) of the Act has not caused any prejudice to the accused. Moreover, the requirement of the provisions under Section 52(3) of the Act are not mandatory but only directory.
38. The investigation of the case was conducted by PW5. He also filed complaint against the accused in the court. Learned amicus curiae has contended that PW5 was an officer who had no jurisdiction Crl.A. No. 1305 of 2015 17 over the place where the seizure was effected and the offence was committed and therefore, he was not competent to conduct the investigation of the case and to file complaint before the court.
39. The occurrence in this case took place within the territorial limits of Aluva Excise Circle Office. The investigation of the case was conducted by PW5, who was the Excise Circle Inspector of Ernakulam. As per Ext.P14 order dated 22.02.2013, the Deputy Excise Commissioner, Ernakulam had authorised PW5 to conduct the investigation of the case and also to file final report before the court.
40. Section 53(2) of the Act provides that the State Government may, by notification published in the Official Gazette, invest any officer of the department of drugs control, revenue or excise or any other department or any class of such officers with the powers of an officer- in-charge of a police station for the investigation of offences under the Act.
41. Learned Public Prosecutor, on instructions, has submitted that the State Government have not issued any notification under Section 53(2) of the Act investing any officer or class of officers of the Excise Department with the powers of an officer-in-charge of a police station for the investigation of offences under the Act. Absence of a notification issued by the State Government under Section 53(2) of Crl.A. No. 1305 of 2015 18 the Act does not affect the authority of the excise officers to conduct investigation of the case. It only means that an excise officer cannot be deemed to be a police officer for the purpose of investigation under the Act and that he has no authority to file any report as envisaged under Section 173(2) Cr.P.C. He would be entitled to file complaint before the competent court. In the instant case, PW5 did not file any report under Section 173(2) Cr.P.C. He filed only a complaint before the competent court.
42. Section 36A(1)(d) of the Act states that, notwithstanding anything contained in the Code of Criminal Procedure, 1973, a Special Court may, upon perusal of police report of the facts constituting an offence under the Act or upon a complaint made by an officer of the Central Government or a State Government authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial. This provision makes it clear that a Special Court may take cognizance of the offence on a police report or on a complaint made by an officer of the Central Government or State Government authorised by the said Government to file the complaint. It is crystal clear that no officer other than an officer authorised by the government concerned can make a complaint under clause (d) of sub- section (1) of Section 36A of the Act. In the instant case, the court Crl.A. No. 1305 of 2015 19 had taken cognizance of the offence on the basis of the complaint filed by PW5.
43. As per G.O.(MS) No. 168/92/TD dated 20.10.1992 published in the Kerala Gazette Extraordinary dated 20.10.1992, the Government of Kerala have authorised all officers of and above the rank of Excise Inspectors of the Excise Department to file complaints in respect of offences under the Act before the special courts within the area of their respective jurisdiction under clause (d) of sub-section (1) of Section 36A of the Act. This notification reads as follows:
" S.R.O.No.1356/92. -- Under clause (d) of sub- section (1) of Section 36A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985), the Government of Kerala hereby authorise all officers of and above the rank of Excise Inspectors of the Excise Department and all officers of and above the rank of Sub Inspectors of the Police Department to file complaints in respect of offences under the Act before the Special Courts within the area of their respective jurisdiction".
44. The aforesaid notification cannot be understood to mean that all officers of and above the rank of Excise Inspectors of the Excise Department who have jurisdiction over the entire area within the limits of a Special Court have got power or authority to file complaint in respect of an offence under the Act before such court. The power to Crl.A. No. 1305 of 2015 20 file complaint invested as per the above notification is on all officers of and above the rank of Excise Inspectors of the Excise Department in respect of offences under the Act within the area of their respective jurisdiction. The expression "their respective jurisdiction" relates to the excise officers and not to the special courts. It means that, only in respect of offences under the Act committed within the area of his jurisdiction, an excise officer has got power to file complaint.
45. In the instant case, admittedly, PW5 Excise Circle Inspector had no jurisdiction over the place where the offence was committed. The place of occurrence was outside the area of his jurisdiction. Only the State Government has the power to authorise such an officer to file complaint in respect of an offence under the Act before the Special Court. The Deputy Excise Commissioner had no authority to authorise PW5 to file a complaint or final report before the Special Court in respect of an offence committed outside the area of jurisdiction of PW5. It follows that PW5 had no authority to file the complaint in respect of the offence committed in this case.
46. In view of the provision contained in clause (d) of Section 36A of the Act, the Sessions Court or the Special Court had no jurisdiction to take cognizance of the offence on the basis of the Crl.A. No. 1305 of 2015 21 complaint filed by PW5, who was an officer not authorised by the State Government. Cognizance of the offence taken by the court is illegal and non est. It is not a matter of curable irregularity. It is a matter which cuts the root of the prosecution against the accused. The trial itself is vitiated (See Roy v. State of Kerala : AIR 2001 SC 137).
47. In the light of the discussion above, the appellant is entitled to be acquitted solely on the ground that the prosecution against him was based on a complaint filed by an officer who had no authority to file a complaint under clause (d) of Section 36A of the Act and that the court had no jurisdiction to take cognizance of the offence under the Act upon such complaint.
48. Consequently, the appeal is allowed. The order of conviction and sentence passed against the appellant/accused by the trial court under Section 8(c) read with Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act is set aside. The appellant/accused is found not guilty of the aforesaid offence and he is acquitted. He shall be released forthwith, if his detention in jail is not required in connection with any other case.
49. The Registry shall forthwith send a copy of this judgment, for necessary action, to the Superintendent of the prison in which the appellant is detained.
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50. The valuable services rendered by Advocate Sri.S.S.Aravind as amicus curiae in the case are taken note of and appreciated.
Sd/-R. NARAYANA PISHARADI JUDGE lsn