Kerala High Court
Noushad vs State Of Kerala on 15 September, 2012
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
WEDNESDAY, THE 12TH DAY OF APRIL 2017/22ND CHAITHRA, 1939
CRL.A.No. 1423 of 2012
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AGAINST THE JUDGMENT IN S.C NO. 478/2011 of ADDITIONAL
SESSIONS JUDGE (ADHOC-I), ERNAKULAM DATED 15-09-2012
APPELLANT/ACCUSED:
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NOUSHAD
S/O.VEERAVUNNI,
VAZHAKKAMADATHIL VEEDU,
NEAR MILLUPADY, VELIYATHUNADU KARA,
U.C.COLLEGE P.O., ALUVA.
BY ADVS.SRI.ANIL K.MOHAMMED
SRI.V.S.MANSOOR
RESPONDENT/COMPLAINANT:
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STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 23/2/2017, THE COURT ON 12.4.2017 DELIVERED THE
FOLLOWING:
P.UBAID, J.
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Crl.A No.1423 of 2012
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Dated this the 12th day of April, 2017
J U D G M E N T
The appellant herein challenges the conviction and sentence against him under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act (for short 'the NDPS Act) in S.C No.478/2011 of the Special Court for the trial of NDPS cases (Additional Sessions Judge, Adhoc I, Ernakulam). The prosecution case is that when the Sub Inspector of Police, Cheranallur conducted a search at the rented house of the appellant, (ground floor of the larger building) on the basis of secret reliable information received by the Commissioner of Police, Kochi, and as directed by the Commissioner of Police, at about 5 pm., on 6.6.2011 the appellant was found possessing a huge quantity of injunction ampoules of Buprenorphine and Diazepam, contained in various carton boxes and carry bags, and kept inside a closed shelf at the said house. The Sub Inspector conducted search in the presence of the owner of the house, occupying the up Crl.A No.1423 of 2012 2 stair portion, and other witnesses. The detecting officer was in fact the Sub Inspector of Eloor at that time, and he was put in charge of the Cheranallor Police Station by the Commissioner of Police. The accused was arrested on the spot, at the rented house, and the huge quantity of psychotropic substance was seized as per a search list and a detection mahazar. The required samples were also collected from the total quantity of substance by the Sub Inspector. Without any delay, the accused and the properties were produced at the Cheranallor Police Station, where the Sub Inspector registered the FIR. Investigation was later taken over by the Circle Inspector of Police, Ernakulam North, and after investigation the Circle Inspector submitted final report in court.
2. The accused appeared before the trial court and pleaded not guilty to the charge framed against him under Section 22(c) of the NDPS Act. The prosecution examined nine witnesses including the detecting officer and proved Exts.P1 to P14 documents. When examined under Section 313 Cr.P.C the accused denied the incriminating circumstances, and projected a defence that this case was falsely foisted against him by the Crl.A No.1423 of 2012 3 police due to some enmity. The accused examined a witness as DW1, and he also proved Exts.D1 to D5 documents. MO1 to MO13 properties were also identified during trial. On an appreciation of the evidence, the trial court found the accused guilty. On conviction he was sentenced to undergo rigorous imprisonment for ten years, and to pay a fine of 1 lakh, by judgment dated 15.9.2012. Aggrieved by the said judgment of conviction, the accused has come up in appeal.
3. When this appeal came up for hearing, the learned counsel for the appellant submitted that the whole prosecution case is doubtful in view of the inconsistency in the evidence of the detecting officer and the independent witnesses, and that the detecting officer had not complied with the statutory requirements under Sections 42, 50 and 57 of the NDPS Act in this case. On the other hand the learned Public Prosecutor submitted that there is clear evidence proving the compliance of all statutory requirements, and there is absolutely no material inconsistency in the evidence given by the detecting officer and the others.
4. Of the nine witnesses examined by the prosecution, PW1 is the Sub Inspector who detected the offence and PW7 to Crl.A No.1423 of 2012 4 PW9 are the Circle Inspectors who investigated the case. The final report was submitted by PW9. PW2 is the Civil Police Officer, who assisted the Sub Inspector in the process of detection, PW3 is the Village Assistant, who prepared the Ext.P12 scene plan, PW4 is an attester to the mahazar as per which the Ext.P10 lease deed under which the house in question was taken on rent by the accused, PW5 is an independent witness, and PW6 is the owner of the house who also witnessed the detection.
5. PW1, the Sub Inspector who detected the offence has given definite evidence proving the detection, and his evidence is fully consistent with that of PW2 who had assisted him in the process of detection. Ext.P5 is the search list as per which the contraband articles were seized by the Sub Inspector on search at the house of the accused. It is only a rented house. PW6 is the owner of the said house. He has been occupying the up stair portion. He, and also PW4, proved the Ext.P10 lease deed as per which the ground floor was let out to the accused. At the time of search PW6 was there on the upstairs. The evidence of PW1 is that the search happened to be made as instructed by the Commissioner of Police, Kochi, on the basis of a secret reliable Crl.A No.1423 of 2012 5 information received by him. PW1 was the Sub Inspector of Police, Eloor at that time. The place of detection in this case is within the limits of Cheranalloor Police Station. As the Sub Inspector, Cheranalloor was on leave, the Commissioner of Police authorised and directed PW1 to conduct search at the house of the accused. Accordingly, he sent a report to the superior officer under Section 42 of the NDPS Act and came at the Cheranalloor Police Station by about 4.30 pm. After recording the purpose of search in the general diary, he proceeded to the house of the accused with police party. They reached there at about 4.45 pm. When they reached there the house was seen locked from inside. He called the house owner to witness the search, and a constable in his party procured the presence of two other witnesses also. When knocked at the door the accused came out, and then the Sub Inspector expressed his intention to search the house. The accused was also informed that his body also would be searched. When asked whether the accused required the presence of any gazetted officer or Judicial First Class Magistrate for body search, he answered in the negative, and consented for search by the Sub Inspector himself. Accordingly the Sub Inspector first made a search inside the Crl.A No.1423 of 2012 6 house. When he opened a shelf at the bed room of the house, he could see two cartons containing huge quantity of Buprenorphine (with the trade name Burogesic) injunction. One of the cartons contained 1517 ampoules of 2 ml each and the other contained in 982 ampoules of 2 ml each. When the Sub Inspector opened and examined the two carry bags found inside of the shelf he could see 300 ampoules of Diazepam injunction of 2 ml. each in one of the bags, and 210 ampoules of Lupigesic injunction of 2 ml each in the other bag. When he opened a packet found in the almarah he saw 72 ampoules of Phenergan injunction (2 ml each). He arrested the accused on the spot in presence of witnesses and seized the huge quantity of psychotropic substances. 10 ampoules each was taken from the different quantities contained in different containers. The samples collected from the first carton containing 1517 ampoules were given numbers as S1(1) to S1(10), the samples collected from the other carton containing 982 ampoules were given numbers S2(1) to S2(10), the samples collected from the 300 ampoules of Diazepam were given numbers as S3(1) to S3 (10), the samples collected from the 210 ampoules of Lupigesic contained in the second carry bag were marked as S4(1) to S4 Crl.A No.1423 of 2012 7 (10), and the samples collected from the 72 ampoules of Phenergan injunction were given numbers as S5(1) to S5(10). All the samples were well packed and sealed according to law, and the remaining quantity of ampules were also separately packed and sealed. Labels containing the signature of the accused and the witnesses were affixed on all the packets.
6. PW2 has given evidence fully corroborating by PW1 on all particulars of the search, arrest and seizure. The defence could not bring out anything to discredit the evidence of PW1 and PW2 in their cross examination. PW1 was extensively cross examined as regards the detection process, and also the compliance of the statutory requirements. Inspite of thorough cross examination PW1 affirmed in evidence and stated in definite terms, that he conducted search at the house of the accused, occupied by him as a tenant, after compliance of all the procedural requirements, and that the huge quantity of injunction ampoules of psychotropic substance was seized from his possession. As regards the 72 ampoules of Phenergan seized by the Circle Inspector, no discussion is required because Phenergan is not a psychotropic substance described in the schedule to the NDPS Act. PW1, PW2, PW5 and PW6 have Crl.A No.1423 of 2012 8 proved the search list as per which the contraband articles were seized.
7. That PW1 had conducted a search at the house occupied by the accused as a tenant at about 5 pm., on 6.6.2011 is proved by the evidence of PW5 and PW6 also. PW6 is the owner of the said house. His evidence is that he was in fact on the upstairs when the police party came there, and he came downstairs as requested by the police. By that time some other witnesses were also brought by PW2. PW5 is one among them. In the presence of all, the house was searched and a huge quantity of injunction ampoules was seized by the Sub Inspector. This is the evidence of PW5 also. His evidence is that while he was talking at the locality with one person they saw the police party rushing to the house of the accused. They followed the police party, and they witnessed the search and seizure. PW5 categorically stated that the Sub Inspector had seized huge quantity of injunction ampoules from the possession of the accused. The witnesses stated that the Sub Inspector had searched the body of the accused also, but on body search no contraband article was seized. Only a mobile phone and some amount were seized by the Sub Inspector on body search. All the Crl.A No.1423 of 2012 9 contraband articles were seized on search inside the house, and everything was contained in different containers kept inside a shelf. This is the evidence given by PW5 and PW6. These two witnesses are totally independent witnesses, and they have no reason to help the police to foist a false case.
8. On an appreciation of the evidence given by PW1, PW2, PW5 and PW6 I find that all these witnesses are consistent on all material particulars concerning the search made by PW1, the body search made by him, the arrest of the accused, the seizure of huge quantity of psychotropic substance, and also the sampling process done by the Sub Inspector at the spot of detection itself. I find no inconsistency in the evidence of these witnesses, as the defence would contend. Of course, some minor differences can be seen here and there, but I do not find any serious infirmity, or inconsistency in their evidence. It stands well proved by evidence that at about 5 pm., on 6.6.2011 PW1 had conducted a search at the house of PW1, occupied by him as a tenant, and the said house belongs to PW6. The detection process was well witnessed by PW6 and PW5. Seizure of huge quantity of psychotropic substance contained in 3009 ampoules of Buprenorphine and Diazepam injunction stands well proved by Crl.A No.1423 of 2012 10 the evidence of the material witnesses, including PW1. The samples collected by PW1 were produced in court and sent for analysis to the laboratory. Ext.P14 is the report of chemical analysis. This report shows that when received at the laboratory the seals on all the samples were intact, and the seals tallied with the sample seals provided. The report shows that on analysis at the laboratory, Buprenorphine was detected in the ampoules marked as item Nos.S1 and S2 series, Diszepam was detected in the ampoules marked as item Nos.S3 series and Promethazine was detected in the ampoules marked as S5 series. The report shows that no Narcotic Drug or Psychotropic Substance was detected in the ampoules marked as the item No.S4 series. These ampoules were taken from the total quantity of 210 Lupigesic injunction ampoules. The S5 series samples were taken from the 72 ampoules of Phenergan. The content therein was identified as Promethazine but it is reported that Promethazine is not a psychotropic substance within the purview of the NDPS Act. Thus the chemical analysis report shows that Buprenorphine, which is definitely a psychotropic substance, was detected in the S(1) series sample taken from the total quantity of 1517 ampoules and also in the S(2) series Crl.A No.1423 of 2012 11 samples taken from the total quantity of 982 ampoules. So also Diazepam was detected in the S(3) series of samples taken from the total quantity of 300 ampoules of Diazepam injunction. Of course, no psychotropic substance was detected in the S4 series samples taken from the total quantity of 210 Lupigesic injunction ampoules. Though Promethazine was detected in the S5 series samples taken from the 72 samples of Phenergan, the report shows that Promethazine is not a psychotropic substance under the NDPS Act.
9. The report of chemical analysis shows that the weight of one ampoule of injunction taken from the total quantity of 1517 ampoules is 1.98 gms., the weight of one ampoule of injunction taken from the 982 ampoules is 2.140 gms. and the weight of one ampoule of Diazepam injunction is 2.10 gms. Thus, I find that the total quantity of psychotropic substance in the total quantity of injunction ampoules seized by the police very well constitutes the commercial quantity.
10. Now the question is whether PW1 had complied with the statutory requirements in the process of detection. His evidence is that before proceeding for search, he had sent a report of search under Section 42 of the NDPS to the Circle Crl.A No.1423 of 2012 12 Inspector, and after the detection process he had sent another report under Section 57 of the NDPS Act to the Circle Inspector, containing all the required details. He proved Ext.P7, the report under Section 42 of the NDPS Act, and Ext.P8 the report under Section 57 of the NDPS Act, sent by him without any delay. It was submitted by the learned counsel that these reports are not properly proved by the Circle Inspector, who received the report. The proper person to prove the report is the person who sent the report. The reports contain the initials put by the Circle Inspector of Police. As regards the compliance of Section 50 of the NDPS Act PW1 stated that he had duly informed the accused about his precious right under the law to be searched in the presence of a gazetted officer or a Judicial Magistrate. Though he was informed so, the accused waived his right and consented to be searched by him. In fact no contraband article, or no quantity of psychotropic substance was seized by the police on body search of the accused. All the articles were seized on house search. What the police seized on body search is only a mobile phone and some amount. Anyway, the compliance of Section 50 of the NDPS Act is also proved by PW1, though such compliance does not assume importance in this case, because Crl.A No.1423 of 2012 13 the entire quantity of psychotropic substance was seized on house search. Thus, I find that PW1 had complied with the statutory requirements under Sections 42, 50 and 57 of the NDPS Act in the detection process. Ext.P8 report contains all the required details to be furnished under Section 57 of the NDPS Act. That the Sub Inspector did not obtain a written consent of the accused for body search, is not material in this case, because the evidence given by the PW1 and other material witnesses will show that PW1 had duly informed the accused about his right to be searched in the presence of a gazetted officer or a Judicial Magistrate. That the accused waived his right is also proved by them.
11. As discussed above, I find on an analysis of the entire evidence in this case that the prosecution has well proved the case beyond any reasonable doubt, that when PW1 conducted a search at the house of the accused occupied by him as a tenant under PW6, at about 5 pm, on 6.6.2011 he was found possessing commercial quantity of psychotropic substances in the form of Buprenorphine injunction and Diazepam injunction. This is punishable under Section 22(c) of the NDPS Act. I find that the conviction is only to be confirmed in appeal.
Crl.A No.1423 of 2012 14
12. The sentence imposed by the court below is rigorous imprisonment for ten years and a fine of 1 lakh. This is the minimum possible under Section 22(c) of the NDPS Act. In such a situation, interference in sentence is not possible at all. Despite the fact that very huge quantity of substance was seized, the trial court imposed only the minimum sentence. The accused cannot be said to be aggrieved when the sentence is the minimum.
In the result, this appeal is dismissed, confirming the conviction and sentence against the appellant under Section 22
(c) of the NDPS Act in S.C No.478/2011 of the court below.
Sd/-
P.UBAID, JUDGE //True Copy// P.A to Judge ab