Kerala High Court
Karunakar Bindhani vs State Of Kerala
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
THURSDAY, THE 20TH DAY OF NOVEMBER 2014/29TH KARTHIKA, 1936
CRL.A.No. 1183 of 2012
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S.C.NO.50/2012 OF ADDITIONAL SESSIONS COURT (ADHOC-I), ERNAKULAM
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APPELLANT(S)/ACCUSED :
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KARUNAKAR BINDHANI,
S/O.KAULAS BINDHANI, DINURUGUDA P.O.,
FIRINGIA, KANDHAMAL DISTRICT, ORISSA.
BY ADV. V.SREEJA
RESPONDENT(S)/COMPLAINANT :
----------------------------------------------------
STATE OF KERALA,
REP.BY C.I. OF EXCISE EE & ANS, ERNAKULAM,
(CRIME NO.8/11) REP. BY P.P. HC ERNAKULAM- 682 031.
BY PUBLIC PROSECUTOR SMT.R.REMA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-11-2014,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Msd.
ALEXANDER THOMAS, J.
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Crl.Appeal No. 1183 of 2012
(Arising out of judgment dated 24.8.2012 in S.C.No. 50/2012 on the file of the Court of Additional
Sessions Judge (Adhoc-I), Ernakulam, arising out of Crime No.8/2011 of E.E. & ANSS [Ernakulam Excise
and Anti Narcotic Special Squad], Ernakulam)
==================
Dated this the 20th day of November, 2014
J U D G M E N T
This appeal has been instituted by the accused under Sec. 374 of the Cr.P.C to impugn the judgment dated 24.8.2012 in S.C.No.50/2012 on the file of the Additional Sessions Court (Ad- Hoc)-I, Ernakulam whereby the accused has been convicted and sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.50,000/-, in default to undergo rigorous imprisonment for a further term of two years for the offence under Sec. 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1995 (hereinafter referred to as 'the NDPS Act'). The case arose out of Crime No.8/2011 of Ernakulam Excise and Anti Narcotic Special Squad (EE&ANSS), Ernakulam. After investigation, in the crime, the investigating officer concerned filed the requisite final report/charge sheet for the Crl.A.1183/12 - : 2 :-
aforementioned offence under Sec. 20(b)(ii)(B) of the NDPS Act.
2. The brief of the prosecution case is that the appellant/accused was found in front of the house of one Sri.Ambadan Sulaiman on the side of the road leading to Perumbavoor Rayons, near Kochangadi Junction in Chelamattom Village of Kunnathunad Taluk on 12.7.2011 at about 8:30 pm. It is alleged that the accused was holding a plastic bag in which dried ganja weighing about 3 kg. was kept. The accused was arrested and the contraband was taken into custody and the crime was registered. After the submission of the final report/charge sheet as stated above the court framed the charge against the accused for the aforementioned offence under the NDPS Act.
3. The prosecution examined 6 witnesses viz. PWs-1 to 6 and marked 11 prosecution exhibits viz. Exts.P-1 to P-11 and also produced 6 material objects viz. MOs-1 to 6 in the course of trial. After the completion of the trial the court below passed the impugned judgment on 24.8.2011 convicting and sentencing the appellant as stated above for the aforementioned offences.
Aggrieved by the judgment passed by the court below, the Crl.A.1183/12 - : 3 :-
accused has impugned the same by instituting the aforementioned appeal.
4. Heard Smt.V.Sreeja, learned counsel for the appellant and the learned Public Prosecutor appearing for the respondent-
State of Kerala. Both sides have elaborately dealt with the depositions of the prosecution witnesses as well as the documentary evidence in this case. The appellant and the prosecutor have also made elaborate submissions reiterating their respective versions and contentions.
5. One of the main grounds urged by the appellant in this case is that the search and seizure of the contraband have been made in violation of the provisions engrafted in Sec. 50 of the NDPS Act and therefore the conviction on the basis of such seizure of the contraband effected on the basis of such search, stands vitiated, in view of the law well settled in this regard by a series of decisions of the Apex Court including Constitution Bench decision of the Apex Court. Sec. 50 of the NDPS Act reads as follows:
"50. Conditions under which search of persons shall be conducted:-
(1) When any officer duly authorised under Section 42 is Crl.A.1183/12 - : 4 :-
about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventytwo hours send a copy thereof to his immediate official superior." Sec. 54 of the NDPS Act reads as follows:
"54. Presumption from possession of illicit articles:-
In trials under this Act, it may be presumed, unless and until the contrary is provided, that the accused has committed an offence under this Act in respect of --
(a) any narcotic drug or psychotropic substance or controlled substance;
(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;
Crl.A.1183/12 - : 5 :-
(c) any apparatus specially designed or any group of
utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or
(d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily."
Sec. 35 of the NDPS Act reads as follows:
"35. Presumption of culpable mental state:-
(1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
Explanation:-In this section "culpable mental state"
includes intention, motive knowledge of a fact and belief in, or reason to believe, a fact.
(2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability."
Sec. 20(b)(ii)(B) of the Act provides as follows:
"Sec. 20 Punishment for contravention in relation to cannabis plant and cannabis.- Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder.-
(a)....
(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable-
Crl.A.1183/12 - : 6 :-
(i) ......
(ii) where such contravention relates to sub-clause (b),-
(A) .........
(B) and involves quantity lesser than commercial
quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees;
xxx xxx xxx"
Therefore, it would be pertinent to deal with some of the crucial aspects regarding the legal principles contemplated in regard to Sec. 50 of the NDPS Act. In the case, State of Punjab v.
Balbir Singh reported in 1994 KHC 798 = 1994 (3) SCC 299 = AIR 1994 SC 1872 = 1994 SCC (Cri) 634, the Apex Court held that Sec. 50 of the NDPS Act is mandatory and that violation of that mandatory provision would vitiate the trial itself. In the case State of Himachal Pradesh v Pirthi Chand reported in 1996 (2) SCC 37 = 1996 SCC (Cri) 210 = AIR 1996 SC 977, the Apex Court held that the breach of Sec. 50 does not affect the trial. Due to such divergent views on this aspect, the matter was referred for consideration of the Constitution Bench of the Supreme Court which led to the decision in the case State of Punjab v. Baldev Singh reported in 1999 (6) SCC 172 = 1999 Crl.A.1183/12 - : 7 :-
Crl.L.J 3672 = AIR 1999 SC 2378 = 1999 KHC 707. Though various propositions of law have been conclusively laid down in Baldev's case (supra) by the Constitution Bench (see para 55 of 1999 Crl.L.J 3672 pp 3694, 3695 para 55), the crucial issue that is pertaining in cases like the instant one is as to whether it is a mandatory requirement of Sec. 50 of the NDPS Act that when an officer authorised under Sec. 42 of the NDPS Act is about to search a person he must inform him of his right under sub- section (1) of Sec. 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate. Cogent answers to the pertaining issue are given in sub paras 1 to 3 of para 55 of Baldev Singh's case (Crl.L.J report). It was held therein as follows:
"(1)That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search.
However, such information may not necessarily be in writing.
(2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused.
(3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not Crl.A.1183/12 - : 8 :-
vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act."
It was also held in sub para 8 of para 55 of the above decision by the Supreme Court that a presumption under Sec. 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in search conducted in accordance with the mandate of Sec. 50 and that an illegal search cannot entitle the prosecution to raise a presumption under Sec. 54 of the Act. To appreciate the jurisprudential background of the legal position laid down in this regard, it would be pertinent to refer to the famous decision Miranda v. Arizona rendered by the U.S. Federal Supreme Court. In Miranda v. Arizona reported in (1966) 384 US 436, the U.S Supreme Court, while considering the question as to whether the accused be apprised of his right not to answer and keep silent while being interrogated by the police held thus:
"At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent. For those unaware of the privilege, the warning is needed simply to make them aware of it - the threshold requirement for an intelligent decision as to its exercise. More important, such a warning is an absolute Crl.A.1183/12 - : 9 :-
prerequisite in overcoming the inherent pressures of the interrogation atmosphere. .....................
The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of foregoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. Moreover this warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary system - that he is not in the presence of persons acting solely in his interest (emphasis supplied). The Supreme Court in the case of State of Punjab v. Balbir Singh reported in 1994 Crl.L.J 3702 (see p.3715 para 21), after considering the above said decision of the U.S. Supreme Court in Miranda v. Arizona, noted that "when such is the importance of a right given to an accused person in custody in general, the right by way of safeguard conferred under Section 50 in the context is all the more important and valuable. Therefore it is to be taken as an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a Gazetted Officer or a Magistrate". Though in Balbir Singh's case (supra) the Apex Court held that the provisions of Sec. 50 are mandatory and breach of which vitiate trial etc, the legal position in this regard was slightly altered by the Constitution Bench of the Supreme Court in Baldev Singh's Crl.A.1183/12 - : 10 :-
case (Supra). In Baldev Singh's case (supra), the Constitution Bench of the Apex Court in para 32 thereof held that "However, the question whether the provisions of Section 50 are mandatory or directory and, if mandatory, to what extent and the consequence of non-compliance with it does not strictly speaking arise in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched. Therefore, without expressing any opinion as to whether the provisions of Section 50 are mandatory or not, but bearing in mind the purpose for which the safeguard has been made, we hold that the provisions of Section 50 of the Act implicitly make it imperative and obligatory and cast a duty on the investigating officer (empowered officer) to ensure that search of the person (suspect) concerned is conducted in the manner prescribed by Section 50, by intimating to the person concerned about the existence of his right, that if he so requires, he shall be searched before a gazetted officer or a Magistrate and in case he so opts, failure to conduct his search before a gazetted officer of a Magistrate could cause prejudice to the accused and render the recovery of the illicit article suspect and vitiate the conviction and sentence of the accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered during a search conducted in violation of the provisions of Section 50 of the Act. The omission may not vitiate the trial as such, but because of the inherent prejudice which would be caused to an accused by the omission to be informed of the existence of his right, it would render his conviction and sentence unsustainable. The protection provided in the section to an accused to be intimated that he has the right to have his personal search conducted before a gazetted officer or a Magistrate, if he so requires, is sacrosanct and indefeasible
- it cannot be disregarded by the prosecution except at its own peril".
6. Therefore, it does not require much discussion to appreciate that the jurisprudential perspective that emanates Crl.A.1183/12 - : 11 :-
from the legal position settled by the Constitution Bench of the Apex Court in Baldev Singh's case (supra) is broadly the same as the one flowing from the analogous Miranda principles of the right of the accused to remain silent as adverted to above in Balbir Singh's case (supra). The jurisprudential horizon even in Baldev Singh's case (supra) continues to be Miranda Centric. The Constitution Bench in paragraphs 25 to 28 of Baldev Singh's case (supra) has dealt with the rationale for the insistence that there has to be strict adherence to the provisions of Sec. 50 of the NDPS Act. The Apex Court therein held that in view of the rigorous provisions in the NDPS Act severe punishments have been provided under the Act for mere possession of illicit Drugs and Narcotic Substances. The safeguard or protection to be searched in the presence of a Gazetted Officer or a Magistrate has been incorporated in Sec. 50 of the Act so as to ensure that persons are only searched with a good cause and also with a view to maintaining veracity of evidence derived from such search. The rationale is that the search before a Gazetted Officer or a Magistrate would impart much more authenticity and creditworthiness to the search and Crl.A.1183/12 - : 12 :-
seizure proceedings and it would also verily strengthen the prosecution case that there is, no justification for the empowered officer, who goes to search the person, on prior information, to effect the search, of not informing the person concerned of the existence of his right to have his search conducted before a Gazetted Officer or a Magistrate so as to enable him to avail of that right as per Sec. 50 and that it is not necessary to give the information to the suspect to be searched about his right in writing and that it is sufficient if such information is communicated to the concerned person orally and as far as possible in the presence of some independent and respectable persons witnessing the arrest and search. The prosecution must, however, at the trial, establish that the empowered officer had conveyed the information to the suspect of his above said right of being searched in the presence of the Magistrate or a Gazetted Officer, at the time of the intended search and that the courts have to be satisfied at the trial of the case about due compliance with the requirements provided in Sec.50 and that no presumption under Sec. 54 of the Act can be raised against an accused, unless the prosecution establishes it to the satisfaction Crl.A.1183/12 - : 13 :-
of the Court, that the requirements of Sec. 50 were duly complied with. It was further held in Baldev Singh's case (supra) that the compliance with the procedural safeguards contained in Sec. 50 are intended to serve dual purpose, viz, to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the empowered officer.
7. It would be apposite in this context to refer to the observations of the Supreme Court in paragraphs 25 to 28 which reads as follows:
'25. To be searched before a gazetted officer or a Magistrate, if the suspect so requires, is an extremely valuable right which the legislature has given to the person concerned having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act. It appears to have been incorporated in the Act keeping in view the severity of the punishment. The rationale behind the provision is even otherwise manifest. The search before a gazetted officer or a Magistrate would impart much more authenticity and creditworthiness to the search and seizure proceeding. It would also verily strengthen the prosecution case. There is, thus, no justification for the empowered officer, who goes to search the person, on prior information, to effect the search, of not informing the person concerned of the existence of his right to have his search conducted before a gazetted officer or a Magistrate, so as to enable him to avail of that right. It is, however, not necessary to give the information to the person to be searched about his right in writing. It is sufficient if such information is communicated to the person concerned orally and as far as possible in the presence of some independent and respectable persons witnessing the arrest and search. The prosecution must, however, at the trial, establish that the empowered officer had conveyed the information to the person Crl.A.1183/12 - : 14 :-
concerned of his right of being searched in the presence of a Magistrate or a gazetted officer, at the time of the intended search. Courts have to be satisfied at the trial of the case about due compliance with the requirements provided in Section 50. No presumption under Section 54 of the Act can be raised against an accused, unless the prosecution establishes it to the satisfaction of the court, that the requirements of Section 50 were duly complied with.
26. The safeguard or protection to be searched in the presence of a gazetted officer or a Magistrate has been incorporated in Section 50 to ensure that persons are only searched with a good cause and also with a view to maintain the veracity of evidence derived from such search. We have already noticed that severe punishments have been provided under the Act for mere possession of illicit drugs and narcotic substances.
Personal search, more particularly for offences under the NDPS Act, are critical means of obtaining evidence of possession and it is, therefore, necessary that the safeguards provided in Section 50 of the Act are observed scrupulously. The duty to inform the suspect of his right to be searched in the presence of a gazetted officer or a Magistrate is a necessary sequence for enabling the person concerned to exercise that right under Section 50 because after Maneka Gandhi v. Union of India it is no longer permissible to contend that the right to personal liberty can be curtailed even temporarily, by a procedure which is not "reasonable, fair and just" and when a statute itself provides for a "just" procedure, it must be honoured. Conducting a search under Section 50, without intimating to the suspect that he has a right to be searched before a gazetted officer or a Magistrate, would be violative of the "reasonable, fair and just procedure" and the safeguard contained in Section 50 would be rendered illusory, otiose and meaningless. Procedure based on systematic and unconscionable violation of law by the officials responsible for the enforcement of law, cannot be considered to be a "fair", just or reasonable procedure. We are not persuaded to agree that reading into Section 50, the existence of a duty on the part of the empowered officer, to intimate to the suspect, about the existence of his right to be searched in the presence of a gazetted officer or a Magistrate, if he so requires, would place any premium on ignorance of the law. The argument loses sight of a clear distinction between ignorance of the law and ignorance of the right to a "reasonable, fair and just procedure".
27. Requirement to inform has been read in by this Court in other circumstances also, where the statute did not explicitly Crl.A.1183/12 - : 15 :-
provide for such a requirement. While considering the scope of Article 22(5) of the Constitution of India and various other provisions of the COFEPOSA Act and the NDPS Act as amended in 1988, a Constitution Bench of this Court in Kamleshkumar Ishwardas Patel v. Union of India concluded: (SCC p. 59, para 14) "14. Article 22(5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority, i.e., the authority that has made the order of detention or the order for continuance of such detention, which is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained.
The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation."
(emphasis ours)
28. This Court cannot overlook the context in which the NDPS Act operates and particularly the factor of widespread illiteracy among persons subject to investigation for drug offences. It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed. We are not able to find any reason as to why the empowered officer should shirk from affording a real opportunity to the suspect, by intimating to him that he has a right "that if he requires" to be searched in the presence of a gazetted officer or a Magistrate, he shall be searched only in that manner. As already observed the compliance with the procedural safeguards contained in Section 50 are intended to serve a dual purpose -- to protect a person against false accusation and frivolous charges as also to lend creditability to the search and seizure conducted by the empowered officer. The argument that keeping in view the growing drug menace, an insistence on compliance with all the safeguards contained in Section 50 may result in more acquittals does not appeal to us. If the empowered officer fails to comply with the requirements of Section 50 and an order or acquittal is recorded on that ground, the prosecution must thank itself for its lapses. Indeed in every case the end result is important but the means to achieve it must remain above board. The remedy Crl.A.1183/12 - : 16 :-
cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted.' It is in the background of these aspects, the Constitution Bench of the Apex Court in Baldev Singh's case (supra) summarised the following propositions in paragraph 55.
"55. On the basis of the reasoning and discussion above, the following conclusions arise:
(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing.
(2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused.
(3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act.
(4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged Crl.A.1183/12 - : 17 :-
by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the official concerned so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair.
(5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the court on the basis of the evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50 and, particularly, the safeguards provided therein were duly complied with, it would not be permissible to cut short a criminal trial.
(6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the person concerned of his right as emanating from sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law.
(7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search.
Crl.A.1183/12 - : 18 :-
(8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act.
(9) That the judgment in Pooran Mal case cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search.
(10) That the judgment in Ali Mustaffa case correctly interprets and distinguishes the judgment in Pooran Mal case and the broad observations made in Pirthi Chand case and Jasbir Singh case are not in tune with the correct exposition of law as laid down in Pooran Mal case."
8. In the instant case, the court below in paragraphs 7 to 15 of the impugned judgment herein recited the version of both sides and also the contentions raised by the prosecution and the accused. The reasonings given by the court below for rendering the finding of conviction on the accused herein have been confined to paragraph 16 of the impugned judgment which reads as follows:
"16. The detection and seizure of ganja from the possession of the accused is duly deposed by PWs 1, 3, and 5. PW.5 is a local witness and while he was returning to his house after closing his shop, he happened to witness the excise party intercepting the accused who is a Hindi speaking man and PW.5 remained there for about 15 minutes. The fact that an Excise Guard was translating Malayalam to the accused is also mentioned by PW.5. PW.5 admitted that since the conversation Crl.A.1183/12 - : 19 :-
was in Hindi, he could not understand much. PW.5 has put his signature in the seizure mahazar and he identified M.O3 bag which was in the possession of the accused. Presence of light in the vicinity of the transformer is also stated by PW.5. There is nothing to disbelieve the testimony of Pws.1, 3 and 5. Ex.P9 is the report u/s. 57 of NDPS Act prepared and sent by PW.1. It is dated 13.7.2011 and the superior officer has received it on 13.7.2011 itself. Full details of the detection, seizure of the contraband, its nature, weight and details of the accused etc. are mentioned in Ex.P9. Such report was made within 48 hours next after the arrest and seizure of the contraband. These facts enhances the credibility of the prosecution case. Investigating offficer has complied with the mandatory provisions of the NDPS Act. Ex.P10 is the chemical analysis report issued by the Assistant Chemical Examiner. The report is that material contained in the packer was identified to be ganja (cannabis sativa). Ex.P7 property list establishes that on 13.7.2011 itself, the contraband was produced before the Judicial First Class Magistrate Court, Perumbavoor. The forwarding note for sending the sample to the Joint Chemical Examiner to the Government of Kerala, Kakkanad is dated 13.7.2011. Without any delay it was forwarded for chemical analysis. I don't find any defect in the detection, seizure of contraband and arrest of the accused. The whole investigation was flawless and it was completed without delay. There is no reason to suspect that the accused, a migrant from Orissa has been falsely implicated in a case of this nature. Nobody has any ill-motive against him. During the recording of 313 Cr.P.C. statement, accused pleaded that if he has committed any offence unknowingly, he may be pardoned. I believe trust and rely on the testimony given by PWs. 1 to 6 and the documentary evidence. Hence I find the accused guilty u/s. 20(b) II(B) of NDPS Act and he is convicted thereon. Sentence will be pronounced after hearing the accused regarding the sentence u/s. 235 (2) of Cr.P.C".
9. The Apex Court in the case in Gujant Singh @ Janta v. State of Punjab reported in 2013 (13) SCALE 295 = 2013 KHC 4854 held that the conviction rendered by the trial court in that case was without ratiocination and it was also observed by the Apex Court that it was most unfortunate that the High Court Crl.A.1183/12 - : 20 :-
failed to independently examine the correctness of the findings recorded by the trial court by simply extracting a portion of the judgment of the trial court, while affirming the conviction (see para 26 thereof) and accordingly set aside the impugned judgment of the trial court and the High Court which was impugned in that case and the appeal was allowed by setting aside the conviction and sentence imposed on the appellant/accused therein.
10. Therefore, this Court exercising its powers of appeal is legally obliged to independently consider the issue as to whether the conviction and the consequent sentence imposed on the appellant are legally correct and justified. This Court in the light of the Constitution Bench decision of the Apex Court in the case Baldev Singh's case (supra) has to be clearly convinced that "the prosecution has in the trial established that the empowered officer had conveyed the information to the suspect of his right under Section 50 and the court has to be satisfied at the trial of the case about due compliance with the requirements provided in Section 50" (see para 25 of Baldev Singh's case). As the Supreme Court has observed in para 28 of Baldev Singh's case (supra), that "indeed in every case the end result is important but the means to achieve it must remain above Crl.A.1183/12 - : 21 :-
board and the remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is keen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice". That cannot be permitted. (see para 28 of Baldev Singh's case).
"Moreover, conducting a fair trial for those who are accused of a criminal offence is the cornerstone of our democratic society. A conviction resulting from an unfair trial is contrary to our concept of justice. Conducting a fair trial is both for the benefit of the society as well as for an accused and cannot be abandoned". (see para 43 of Baldev Singh's case). "That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the official concerned so that the laxity on the part of the investigating authority is curbed". [see para 55(4) of Baldev Singh's case]. Therefore in the light of these well established principles flowing from the Constitution Bench decision of the Apex Court, this Court is under the bounden duty to assess the evidence on record and reach a Crl.A.1183/12 - : 22 :-
definite conclusion as to whether the provisions of Sec. 50 of the NDPS Act have been scrupulously followed in the instant case.
11. It is the common ground in the instant case that the appellant/accused herein is a native of State of Orissa. That he had come to Kerala for employment as a migrant labourer. The Prosecution case is that a patrol party of the Ernakulam Excise and Anti Narcotic Special Squad (EE&ANSS) consisting of PW-1 (detecting officer), PW-3 (Excise Guard) and some other charge witnesses (who have not been examined as prosecution witnesses) were on a patrol duty on 12.7.2011 from 8:30 p.m. onwards and they were patrolling in various places from Aluva to Muvattupuzha and then to places near to Perumbavoor. That while they were travelling in their vehicle, they had seen the accused standing near to a house situated adjacent to public road in question and that they found him in a suspicious circumstance carrying a bag and that they stopped the vehicle and approached him and that they found the accused in a perplexed condition and that when they did not get satisfactory answers from the accused as to the contents in the bag, they searched his bag and found substances looking similar to ganja inside a plastic cover placed Crl.A.1183/12 - : 23 :-
in the bag and thereupon PW-1 smelt and he found the substance as dried ganja. That on coming to know that the accused is a native of Orissa State, PW-3, who is claimed to have proficiency in Hindi language, had translated the conversation of PW-1 to the appellant and had thus informed the accused that he has the right under Sec. 50 of the Act to have his body searched only in the presence of a Gazetted Officer or a Magistrate and if he so insisted, his body search will be conducted by PW-1 only in the presence of such Gazetted officer or Magistrate. That the accused had informed PW-3 that such procedure is not necessary and that PW-1 can conduct his body search and that this was duly translated and conveyed by PW-3 to PW-1. It is also the prosecution case that thereupon Ext-P5 intimation letter dated 12.7.2011 was issued by PW-1 to accused intimating about the right under Sec. 50 to have his body searched only in the presence of a Gazetted Officer or a Magistrate and that the accused in turn had signed the consent letter as per Ext-P6 intimating that the presence of Gazetted Officer or Magistrate is not necessary and search can be conducted by PW-1 etc. It is interesting to note that both Ext-P5 intimation letter and Ext-P6 Crl.A.1183/12 - : 24 :-
consent letter which is stated to be signed by accused therein are both written fully in Malayalam language. Thereupon, PW-1 conducted search of the accused and could retrieve only election identity card of the accused and thereafter the contraband seized from the bag of the accused was duly seized as per Ext-P4 seizure mahazar. These aspects regarding the seizure of ganja as well as the details arising out of Ext-P5 intimation letter and Ext-P6 consent letter etc. seems to have been witnessed by PW- 5, who is said to be an independent witness. That later, the patrol party, under the leadership of PW-1, had taken the accused along with them in their vehicle at about 9:30 p.m. and they had conducted the patrolling duty in other locations and reached the Excise Station only at 2:30 a.m. on the next day (viz., 13.7.2011) and thereafter they have prepared the FIR which led to the registration of Crime No.8/2011 of EE & ANSS, Ernakulam. That the seized ganja, through due process, was forwarded through the Court concerned to the Government Laboratory concerned, and that the Government Laboratory certified that the seized contraband is ganja etc. It can be seen that the version of PW-1, detecting officer, and PW-3 Excise Crl.A.1183/12 - : 25 :-
Guard (who is said to have played the role of translator) have a case that they had explained to the accused that he was having the right to have his body searched only in the presence of a Gazetted officer or a Magistrate, but, that he did not take recourse to that right. The accused gave his willingness in Ext-P6 consent letter that the presence of Gazetted Officer or Magistrate is not necessary for such search and they conducted the search of the body of the accused only in full compliance of the provisions of Sec. 50 of the NDPS Act. It has to be seen that it is the projected case of the prosecution that the accused happened to be a migrant labourer from the State of Orissa. Both Ext-P5 intimation letter and Ext-P6 consent letter are written fully in Malayalam language. The accused is seem to have appended his signature both in Exts-P5 & P6 even though both the said documents are written fully in Malayalam language. So, the crucial question is as to whether the accused has understood the import of whatever was claimed to have been conveyed to him and as to the contents of Exts-P5 & P6 which are written fully in Malayalam language. PW-1 and PW-3 have deposed in their cross examination that they could hear the accused speaking Crl.A.1183/12 - : 26 :-
little bit in Malayalam. Both the PW-1 and PW-3 have not deposed anywhere in their chief examination as to whether the accused knew Malayalam or that he could speak or at least converse little bit in Malayalam or could understand at least small bits of conversation in Malayalam. It is only in the cross- examination that PWs-1 and 3 put forward a case that they noticed that the accused could speak little bit in Malayalam language. PW-1 on the other hand in his cross-examination would say that the accused knew necessary rudimentary aspects of Malayalam language. It is the projected case of the prosecution that it is PW-3 who knew Hindi language and who attempted to play the role of translator in the conversation with the accused who is a native from the State of Orissa. When PW3 says that the accused knew little bit of Malayalam language, it is not discernible as to on what basis PW-1 would depose that the accused seem to have known rudimentary aspects of Malayalam language. PW-1 had deposed before the examination of PW-3. Thereafter, PW-3 was examined as PW-3, who claimed to have played the role of translator in translating the conversation of the accused with PW-1. If at all any credence has to be given to this Crl.A.1183/12 - : 27 :-
version, which is developed for the first time only in the cross- examination, it could only be that of PW-3. Even PW-3 would only go to the extent of saying that the accused could speak little bit in Malayalam language. Neither PW-1 nor any of the other prosecution witnesses like PW-3, PW-6 (investigating officer), etc, has stated anywhere in their cross-examination before the court below that either the detecting officer or the investigating officer had made any attempt to know as to how long the accused has been residing in the State of Kerala and as to whether he was conversant in Malayalam language etc.
12. It is interesting to note that the voters' identity card, which is said to have been recovered by the body search of the accused, has not been produced by the prosecution before the court below. But, on the other hand PW-1 has returned back the voters identity card of the accused to the employer of the accused on the same day viz, 12.7.2011 between 8:30 p.m. and 9:00 p.m. It is the consistent case of the prosecution that the accused was seen arrested from near to the vicinity of the public road in question which is adjacent to a house of one Sri.Ambadan Sulaiman. PW-1 (detecting officer) informed about the arrest of Crl.A.1183/12 - : 28 :-
the accused to the employer of the accused on 12.7.2011 immediately after the arrest effected in between 8:30 p.m. and 9:00 p.m. From Ext-P3 arrest intimation letter dated 12.7.2011 it can be seen that the said intimation was given to the employer of the accused by name Ambadan Sulaiman and the signature of the said employer is also seen appended in Ext-P3. Ext-P11 site plan prepared by the Village Officer would also show that the accused was arrested from the immediate vicinity of the house of one Ambadan Sulaiman. It can be then safely presumed that the above said Sri.Ambadan Sulaiman is the employer of the accused and that the accused was arrested from the immediate vicinity of the house of his employer viz. Ambadan Sulaiman. For reasons only known to the prosecution, Sri.Ambadan Sulaiman has not been cited as a witness even in the trial. None of the prosecution witnesses including PW-1, PW-3 or PW-6 have a case that they have tried to make any attempt to elicit any information from Ambadan Sulaiman about the antecedents of the accused. More aspects regarding the effect of non-examination of Ambadan Sulaiman need only be dealt with later in this judgment. But, it is the admitted case of the prosecution that the arrest of the Crl.A.1183/12 - : 29 :-
accused had taken place between 8:30 p.m. and 9:00 p.m. and that they had left the premises where the accused was arrested at about 9:30 p.m. on 12.7.2011. At the same time, prosecution would also project the case that Ext-P3 arrest intimation dated 12.7.2011 was given to Ambadan Sulaiman immediately after the arrest and that they had also then given the voters' identity card retrieved from the body of the accused to Ambadan Sulaiman. It is quite reasonable to infer that PW-1 & PW-3 and other members of the patrol party of the Anti Narcotic Squad had contacted Sri.Ambadan Sulaiman who was residing in the house near to which the accused was intercepted by the Excise Party and therefore, they could have easily ascertained from Ambadan Sulaiman not only about the antecedents of the accused but also whether he was fluent in Malayalam language in order to ensure as to whether Ext-P5 intimation letter and Ext-P6 consent letter should be written in Malayalam language etc. PW-1 (detecting officer), could have easily cited Sri.Ambadan Sulaiman as at least one among the independent witnesses as he is the most natural witness near to the locality. Therefore, these aspects make a serious suspicion regarding the credibility of the version projected Crl.A.1183/12 - : 30 :-
by PWs-1 to 3 that they have properly conveyed to the accused, who is hailing from the State of Orissa, about his right to have his body searched only in the presence of a Gazetted Officer or a Magistrate as envisaged under Sec. 50 so as to discharge the burden in ensuring full and due compliance of the provisions of Sec. 50 of the NDPS Act.
13. There is another interesting aspect which also makes a serious doubt on the credibility on the version projected by PW-1 & PW-3 about properly communicating to the accused about his right under Sec. 50 to have his body searched only in the presence of a Gazetted Officer or a Magistrate etc. PW-5 is stated to be an independent witness, who is said to have witnessed the seizure of the contraband as well as the alleged conversation that have taken between PW-1 and PW-3 on the one hand and the accused on the other. PW-5 claims to be a merchant near to the place where the accused was intercepted and he has closed down his shop and he was walking back to his residence then he had seen the incident of the accused being intercepted by the Excise patrolling party of Ernakulam Excise. PW-5 would clearly state that he had seen one officer of the Crl.A.1183/12 - : 31 :-
Excise party (presumably PW-3), who was conversing with the accused in Hindi language and that conversation between the Excise Officer and the accused was only in Hindi language. PW-5 has deposed that he could not understand the conversation between the two. PW-5 has no case in his deposition as to whether PW-3 had translated whatever has been conveyed to the accused in Hindi language or as to the conversation between PW- 1 and PW-3. PW-5 has no case that he has seen PW-1 or PW-3 giving Exts-P5 & P6 letters to the accused or that the accused had appended his signature in Exts.P5 & P6. But, at the same time, PW-5 claims that he has seen ganja being retrieved from the bag of the accused.
14. Therefore, the only person who is claimed to be cited as an independent witness by the prosecution about these crucial aspects is PW-5. Since PW-5 has in no way even projected a case that he had seen the accused speaking at least little bit of Malayalam language or that conversation between PW-1 and accused was duly translated to the accused by PW-3 in Hindi language etc., the core of prosecution story that the accused was properly communicated about his right under Sec. 50 in a Crl.A.1183/12 - : 32 :-
language which is properly known to him totally falls to the ground.
15. In the case State of Himachal Pradesh v. Pawan Kumar reported in (2005) 4 SCC 350 (para 26 thereof) the Supreme Court held that having regard to the scheme and the language used a very strict view of Sec. 50 of the NDPS Act was taken and it was held that failure to inform the person concerned of his right as emanating from sub-section (1) of Sec. 50 may render the recovery of the contraband suspect and sentence of an accused bad and unsustainable in law as held by the Constitution Bench that as a corollary, there is no warrant or justification for giving an extended meaning to the word "person"
occurring in the same provision so as to include even some bag, article or container or some other baggage being carried by him.
16. In Pawan Kumar's case (supra), the Supreme Court held that the expression "person" appearing in Sec. 50(1) of the Act would mean a human being with appropriate coverings and clothing and also footwear. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are Crl.A.1183/12 - : 33 :-
identifiable as such. They cannot even remotely be treated to be part of the body of a human being.
17. In the case Kalema Tumba v. State of Maharashtra reported in (1999) 8 SCC 257 = 1999 SC Cri. 1422 = AIR 2000 SC 402, the Apex Court held that if a person is carrying a bag or some other article with him and a narcotic drug or a psychotropic substance is found from it, it cannot be said that it was found from his "person". In that case heroin was found from a bag belonging to the appellant and not from his person and therefore it was not necessary to make an offer for search in the presence of a gazetted officer or a Magistrate for compliance of Sec. 50 of the NDPS Act.
18. In cases where both the search of the bag and the body is conducted by the authorized officer under the NDPS Act, but the contraband is retrieved only from the bag and nothing incriminating is retrieved from the body search of his person suspected, the crucial question would be as to whether the compliance of Sec. 50(1) is required to have such body searched. Such issue has also been considered by the Supreme Court in the case Dileep and another v. State of M.P. reported in 2007 (1) Crl.A.1183/12 - : 34 :-
SCC 452 = AIR 2007 SC 369 = 2007 Cri.L.J 880. The Apex Court dealt with a case wherein on the basis of the information, the search of the person of the accused was conducted and nothing was found on his person but on search of the scooter which they were riding, opium contained in a plastic bag was recovered. The Apex Court held in the above said Dileep's case (cited supra) that the provisions of Sec. 50 might not have been required to be complied with so far as the search of his scooter is concerned, but, keeping in view that the persons of the accused were also searched, it was obligatory on the part of the officers to comply with the provisions of Sec. 50 and since this was not done, the Supreme Court in that case confirmed the acquittal of the accused.
19. In the case, Union of India v. Shah Alam and another reported in 2009(16) SCC 644 = AIR 2010 SC 1785 = 2009 (2) KLT 1023 SC, the Apex Court dealt with a case where heroin was first recovered from the bags carried by the accused therein and thereafter their personal search was effected, but nothing was recovered from their person. It was contended by the prosecution that since personal search did not lead to any Crl.A.1183/12 - : 35 :-
recovery, there was no need to comply with the provisions of Sec.50 of the NDPS Act. But by relying on the aforementioned decision in Dileep and another v. State of M.P. reported in 2007 (1) SCC 452, the Apex Court in Shah Alam's case (supra), held that since the provisions of Sec. 50 of the Act were not complied with, the High Court therein was right in acquitting the accused on that ground.
20. Considering the aforementioned the legal position settled by the decisions cited by the Apex Court as in Pavan Kumar's case, Shah Alam's case etc, the Apex Court in the case State of Rajasthan v. Parmanand and another reported in 2014 (5) SCC 345 = AIR 2014 SC 1384 held that if merely a bag carried by a person is searched without there being any search of his person, Sec. 50 of the Act will have no application. But if the bag carried by him is searched and his person is also searched, Sec. 50 of the Act will have application. In Parmanand's case (supra) the Apex Court dealt with a case wherein the bag of the accused was searched and from the said bag the contraband was recovered and his personal search was also carried out and personal search of another accused was also Crl.A.1183/12 - : 36 :-
conducted and accordingly, it was held in the light of the aforementioned decisions of the Apex Court, that Sec. 50 of the NDPS Act will have application. The Apex Court held in paragraph 14 of Parmanand's case held that the communication of the right under Sec. 50 of the Act to the person who is about to be searched is not an empty formality and that it has a very definite purpose. It was held that most of the offences under NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. There are minimum safeguards available to an accused against the possibility of false implication. That the communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence, the Apex Court conclusively held. In Parmanand's case the Apex Court held that the joint communication of the right under Sec.50 to the two accused therein was not acceptable that it would frustrate the very purpose of Sec. 50 and that such a joint communication of the right may not be clear or unequivocal, it Crl.A.1183/12 - : 37 :-
may create confusion and it may result in diluting the right. Accordingly, in Parmanand's case the Apex Court held that the conviction based on the breach of Sec.50(1) of the Act has vitiated the search and it has rendered the conviction of the accused as illegal and that the High Court therein has rightly acquitted the accused.
21. In the instant case, the prosecution has not even remotely projected a case that the recovery of the contraband from the accused and the body search in the instant case is pursuant to a chance recovery. Though a feeble attempt was made by the public prosecutor to suggest a case that since the Excise patrolling party of the Ernakulam Excise incidentally intercepted the accused who was then allegedly standing in a perplex and suspicious circumstance and that therefore the seizure of the ganja from the bag of the accused amounts to a chance recovery and therefore, the procedure under Section 50 need not be complied etc., this Court is not inclined to accept this plea for the simple reason that the very claim of prosecution case is that they have fully complied with the requirement under Sec. 50(1) of the Act. The forthright case of PWs-1 & 3 that while Crl.A.1183/12 - : 38 :-
they intercepted the accused at the place in question they had seen him standing in a suspicious background and that on searching the bag, they could retrieve ganja and thereafter they have conveyed to the accused that they intend to search his body as well and that he has the right to have his body searched only in the presence of a Gazetted Officer or a Magistrate as mandated under Sec. 50 and they had diligently complied with all the vigour and rigor of Sec. 50. When this is the projected case of the prosecution it is not possible for the court to accept the present plea of the learned Prosecutor, made now for the first time before this appellate forum, that the case involved in the instant case is a chance recovery and therefore the rigorous procedure under Sec.50(1) need not be complied with in the facts and circumstances of this case, etc.
22. When it is the admitted and projected case of the prosecution that they had fully complied with the rigorous provisions of Sec.50(1) before carrying out the body search of the accused in this case, then it is incumbent on this Court to be fully satisfied about the correctness and tenability of this claim, before allowing the prosecution to rely on the presumption under Crl.A.1183/12 - : 39 :-
Sec.54 of the Act. As discussed in the earlier paragraphs of this judgment, on the appreciation of the evidence tendered by PW-1, PW-3 and other prosecution witnesses like PW-5, the core of the prosecution case is that they had effectively and properly communicated to the appellant about his right under Sec. 50(1) and that the accused had understood clearly the import of what was communicated to him by PW-1 & PW-3 and it was fully knowing the contents of Exts-P5 & P6 letters (which are fully written in Malayalam language) the accused had appended his signature in Exts-P5 & P6. In view of the aforementioned decisions of the Apex Court in Dileep and another v. State of M.P. reported in 2007 (1) SCC 452, Union of India v. Shah Alam and another reported in 2009(16) SCC 644 and State of Rajasthan v. Parmanand and another reported in 2014 (5) SCC 345, it can be seen that the bag of the accused was initially searched by the Anti Narcotic Squad in the instant case and that they could retrieve ganja in question from the bag and that thereafter they decided to search the body of the accused and that they have fully complied with the procedure and could retrive nothing except voters identity card and that they had Crl.A.1183/12 - : 40 :-
returned back the voters identity card to the employer on the same day immediately after the arrest of the accused. The contraband was seized only from the bag of the accused and though nothing incriminating was retrieved from the body search of the accused, the fact that they had carried body search of the accused in the instant case would lead to the situation that it was obligatory on the part of the prosecution that the empowered officer concerned have carried out such search only after fully complying with the provisions under Sec. 50 of the NDPS Act as clearly held in Parmanand' case (supra). The procedure for body search of the accused under the NDPS Act is not an empty formality and it has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. It requires no authority to hold that the vigour and rigor of the prescribed procedure has to be meticulously complied with by the empowered officer otherwise the possibility of false implication cannot be ruled out. The Apex Court held that communication of this right under Sec.50(1) has to be clear, unambiguous and should be communicated to the individual concerned/suspect Crl.A.1183/12 - : 41 :-
concerned. The suspect/accused must be made aware of the existence of such a right and this right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. In the instant case, it is the projected case of the prosecution that the accused is a migrant labourer hailing from the State of Orissa. There is no credible or believable evidence on record to convincingly prove before this Court that the accused was in a position to properly understand whatever was conversed or communicated to him in Malayalam language. Though PW-1 and PW-3, who are department witnesses, would attempt to depose in that regard, their evidence are not credible or believable for the reasons stated earlier herein. The crucial independent witness (PW-5) would clearly depose that he could hear only accused and PW-3 conversing with each other in Hindi language and there is no evidence tendered by independent witness, who is also claimed to have seen the seizure of the ganja, that he could hear the accused speaking at least little bit in Malayalam language or that the accused was conversant to a limited extent in Malayalam language or that he had seen PW-1 & PW-3 handing over Exts-P5 & P6 to accused or that the accused signing Exts-P5 & P6. Due to these reasons it would be absolutely unsafe Crl.A.1183/12 - : 42 :-
to rely solely on the feeble and weak evidence of PW-1 & PW-3, the department witnesses, to come to a conclusion that the accused was in a position to properly understand the import of whatever conveyed by PW-1 & PW-3 about his right under Sec.50 especially because he is a migrant labourer hailing from the State of Orissa. It is not even remotely admitted anywhere through out the examination of the prosecution witnesses as to how long the accused has been residing in the State of Kerala and as to real extent to which he was conversant in Malayalam language. It is reasonable to infer that the accused was intercepted immediately in front of the residence of his employer, one Ambadan Sulaiman. For reasons only known to the prosecution, the above said Ambadan Sulaiman has not even been cited as an independent witness to the happenings that have alleged to have taken place between 8:30 p.m. and 9:00 p.m. right in front of his residence, etc. For these reasons, the only irresistible conclusion for this Court to safely reach is that the accused was not properly communicated about the import and contents in Exts.P5 & P6 letters and about the provisions of the right conferred to him under Sec. 50(1) of the NDPS Act. Therefore, the failure of the prosecution to establish this crucial aspect would make the conviction and sentence Crl.A.1183/12 - : 43 :-
imposed on the appellant unsafe and illegal.
23. It is to be noted in this case that the patrol party was not a team of police officials of the regular police cadre, who were on a patrol duty to detect offences as in the Indian Penal Code or such other related offences, in the course of their patrol duty. The members of the patrol duty in this instant case consisted of a team of the Ernakulam Excise & Anti Narcotics Special Squad of the Excise Department, who have been empowered as per the provisions of the NDPS Act. True that the Excise Department officials are also empowered to deal with the offences under the Kerala Abkari Act and the Rules framed thereunder. But the patrol team consisted of a special team of the Anti Narcotic Squad of the Excise Department. Even if the alleged retrieval of alleged ganja by PW1 (detecting officer) from the body of the accused is taken as a chance recovery, it is only to be held in view of conclusive rulings of the Apex Court on this aspect of chance recovery, that from that stage onwards, the officials of the Excise patrol party were under the legal obligation to fully thereafter proceed only in accordance with the provisions of the NDPS Act. The Constitution Bench of the Apex Court in Crl.A.1183/12 - : 44 :-
para 14 of Baldev Singh's case (supra) has held conclusively that "when an empowered officer carrying on the investigation including search, seizure or arrest under the provisions of the Cr.P.C., comes across a person being in possession of the narcotic drugs or the psychotropic substances, then he must follow from that stage onwards the provisions of the NDPS Act and continue the investigation as provided thereunder and that the investigating officer is not an empowered officer, then it is expected of him that he must inform the empowered officer under the NDPS Act, who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act". The Apex Court in Gurjant Singh @ Janta v. State of Punjab, reported in 2013 (13) SCALE 295 = 2013 KHC 4854, has held in paragraph 13 thereof as follows:
'13. When we refer to the decision of this Court in Balbir Singh (supra), what has been held therein as a broad principle in paragraph 25(1), is as under:
"25. The questions considered above arise frequently before the Trial Courts. Therefore we find it necessary to set out our conclusions which are as follows: (1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of CrPC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.' In the said Gurjant Singh's case, the Police party therein Crl.A.1183/12 - : 45 :-
intercepted the tractor trolley used by the accused, which was stopped by the police and when police officer noticed three gunny bags lying in the tractor of the accused/suspect and felt that some incriminating substance was kept in those gunny bags and thereupon, the police officer took the view that before effecting search of gunny bags, necessity of affording opportunity to the accused to conduct search in the presence of gazetted officer or Magistrate, was imperative and thus after noticing three gunny bags, the investigating officer felt the need to invoke the provisions of Sec.50. But thereafter the Apex Court found that the prosecution had failed to establish that there was strict and full compliance of the provisions of Sec. 50 of the NDPS Act and ultimately held that the conviction and sentence imposed on the accused therein are unsafe and accordingly, set aside the same, etc. In the case Dilip and another v. State of M.P. reported in 2007(1) SCC 450 = AIR 2007 SC 369 = 2007 KHC 3022, held in para 14 thereof, after relying on the Apex Court decision in State of Punjab v. Balbir Singh reported in 1994 (3) SCC 299, that if during such search or arrest, there is a chance recovery of any narcotic drug or psychotropic substance, then from that stage Crl.A.1183/12 - : 46 :-
onwards, the investigation should be fully in accordance with the provisions of the NDPS Act. In the instant case, after the alleged retrieval of ganja from the bag of the accused, PW1 (detecting officer) decided that it is highly necessary to conduct the body search of the accused and in that process, it is the projected case that he was convinced that the provision of Sec.50 has to be complied with before he had to effect a body search of the accused. So even if the retrieval of ganja from the body of the accused is taken as a chance recovery, as contended by the learned Public Prosecutor, the prosecution was under the bounden obligation to meticulously comply with the provisions of the NDPS Act from that stage onwards. It has also been already held that the provisions in Sec.50(1) of the NDPS Act have not been properly and fairly complied with by the prosecution, due to the reasons stated hereinabove.
24. It is also to be noticed that the jurisprudential foundation for the insistence in Miranda rule is that the warning is needed in order to make the suspect aware not only of the privilege but also of the consequences of forgoing it. It is only through awareness of these consequences, that there can be any Crl.A.1183/12 - : 47 :-
assurance of the real understanding and intelligent exercise of the privilege and that this warning is to ensure that it will serve to make the individual more acutely aware that he is faced with the phase of the adversary system that he is not in the presence of persons acting solely in his interest, as held in Miranda's case cited supra. It is stated by PW-5 and PW-6 that there are altogether about seven officials of the Anti Narcotic Special Squad of the Excise Department, who were in the patrol party that intercepted the accused at about 8.30 p.m. on 12.7.2011. In a moment like this, one has to really understand the jurisprudential basis for the right emanating from the Miranda rule or one that is engrafted in Sec.50(1) of the NDPS Act is that such intimation by the investigating officers to the accused about his right in that regard is to make him fully and acutely aware not only of his precious right conferred by law, but also that he is faced with a phase of the adversary system and that he is not in the presence of persons acting solely in his interest. Therefore, the full and effective communication of this right to the accused in a language, in which, he is fully comfortable, is certainly a requirement for the strict compliance of the provision under Sec.
Crl.A.1183/12 - : 48 :-
50(1) of the NDPS Act. If the right under Sec. 50(1) is communicated in a language, in which, he is not fully conversant or in which he is likely not to fully understand its import and implications or he is likely to misunderstand as to what is conveyed to him, then it would amount to non-fulfilment of the requirement of Sec.50(1). As held by the Apex Court in Parmanand's case cited supra, the communication of his right has to be clear, unambiguous and directed to the individual concerned and the accused must be made effectively aware of the existence of such a right and this right would be of little consequence if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. Hence there cannot be any doubt that from the evidence adduced in the facts in this case, it is clear that it would be highly unsafe to uphold the conviction and sentence on the accused on the basis of such recovery, which is vitiated due to non-compliance with the provisions of Sec. 50(1) of the Act.
25. Apart from PWs 1 and 3, PW-5, who is said to be an independent witness, has deposed that he had seen the retrieval of ganja from the bag of the accused. It is the projected case of Crl.A.1183/12 - : 49 :-
the prosecution as well as the case of PW-5 that PW-5 was running a shop nearby and that he happened to walk back to his home at that point of time and that he had seen the aforementioned incidents. In the first place, the incidents are stated to have occurred between 8.30 p.m. and 9 p.m. on 12.7.2011. The defence had put forward a consistent case that there was no proper light at that point of time at the spot in question from where the accused was allegedly intercepted.
Ext.P-4 mahazar prepared on 12.7.2011 does not say that there was street light or proper light at the spot in question, even though Ext.P-4 seizure mahazar makes detailed description of various other aspects related to the happenings in between 8.30 p.m. and 9.30 p.m. None of the prosecution witnesses in their statements given under Sec.161 of the Cr.P.C. have stated that there was light near to the spot from where the accused was intercepted. It is only subsequently, in the evidence tendered by PWs 1, 3 and 5 that they have stated before the court below that there was proper light at the spot from where the accused was intercepted and that there was proper visibility, etc. PW-1 in the cross examination stated that there was a transformer near to the Crl.A.1183/12 - : 50 :-
spot in question and that ordinarily there will be two lighted bulbs for a transformer. Here PW-1 has not clearly stated that there was in fact two lighted bulbs near to the transformer on the date and time of the incident in question. Moreover, on scanning through the evidence tendered by PW-5, it is not safe to rely solely on his version about having seen the retrieval of ganja, as his specific case is that he was on his way to his home at that time and that he happened to see the incident. It is also to be appreciated that it has already been held by this Court that the search and the consequent seizure are vitiated due to non- compliance with the provisions of Sec.50(1) of the Act. Therefore, much importance or relevance need not be given to the solitary independent version tendered by PW-5 that he had seen the retrieval of ganja from the bag of the accused. It is also to be noted that neither the detecting officer nor the investigating officer has prepared the scene mahazar in this case. The version of PWs 1, 3 and 5 regarding the alleged interception of the accused and the alleged retrieval of ganja, etc. from the spot in question, could have been properly appreciated by both the prosecution as well as the defence so as to project their Crl.A.1183/12 - : 51 :-
respective contentions, if there had been a scene mahazar. So the lack of scene mahazar would also be a fatal aspect in this case, which would seriously make inroads into the credibility of the version given by this prosecution witness. It is not known as to for what reason, the detecting officer and/or the investigating officer has chosen not to prepare a scene mahazar in a case like this. It is also to be noted that in the cross examination of PW5, he has stated that he has seen only a bhai (meaning Hindi speaking individual) on 12.7.2011 and that it is only on that day (the day on which he tendered evidence before the court below, ie. on 6.8.2012) that he had seen the accused. The exact Malayalam version of the evidence tendered by PW-5 in the cross examination as as follows:
'2xa M^O_fO N^dDfN >^X 5IaUb.eI_fK 'Km g5^?D_O_W UKgM^]^Cm 5IDm." ("It is only a Bhai that he had seen on the day of the incident [12.7.2011] and that it is only today, [the day on which he came to the court viz, 6.8.2012] that he had seen the accused when he came to the court.") So, the version given by the solitary independent witness, viz., PW-5, to identify the accused and his involvement in the crime on the day of incident as alleged by the prosecution, stands totally shaken, as PW-5 is not even very sure about the identity of the accused. Hence this Court can clearly and reasonably infer that Crl.A.1183/12 - : 52 :-
PW-5 was not very sure about the exact identity of the accused when he had seen him on 12.7.2011 between 8.30 p.m. and 9.30 p.m. Further, Sri.Ambadan Sulaiman, the employer of the accused, could have a clear version about the language fluency of the accused. The non-citing and non-examination of Sri.Ambadan Sulaiman as a witness in this case would erode the credibility of the version sought to be projected by the prosecution in this case. PW-5 has not stated that he could hear and understand that the above said intimation under Sec. 50(1) was conveyed by PW1 to the accused and that the accused had clearly intimated that he does not want to avail of that option, etc. Therefore, the versions of PW1 and PW3 that information regarding Sec.50(1) right was effectively and properly communicated to the accused and that after properly understanding its import, he had volunteered in saying that he is not interested in that option etc, cannot be believed, as it lacks credibility due to the aforementioned reasons. Hence it is to be held that the aforementioned search carried out on the accused is in violation of the provisions of Sec. 50(1) of the Act.
26. It is evident from the records that the court below had Crl.A.1183/12 - : 53 :-
appointed a translator/interpreter as envisaged in Secs.279 & 282 of the Cr.P.C. to assist the accused, while answering the charge framed by the court and while giving answers to the questioning process under Sec.313 of the Cr.P.C. So it is reasonable to infer, in the above circumstances, that the accused is a migrant labourer, who is hailing from the State of Orissa, was not having the minimal ability to handle Malayalam language.
27. The non-examination of the aforementioned employer of the accused, viz. Ambadan Sulaiman, has raised serious doubts about the credibility of the case set up by the prosecution. The case of the prosecution is that the accused was intercepted right in front of the residence of one Sri.Ambadan Sulaiman. The prosecution would also say that the arrest intimation memo (Ext.P-3 dated 12.7.2011) was given to one Sri.Ambadan Sulaiman, on 12.7.2011 itself immediately before the patrol party had left the place prior to 9.30 p.m. on that day. Sri.Ambadi Sulaiman has also appended his signature acknowledging the receipt of Ext.P-3 arrest intimation memo, endorsing therein not only his signature but also the date, 12.7.2011. It is quite reasonable in the facts and circumstances of this case, to infer Crl.A.1183/12 - : 54 :-
that the above said Sri.Ambadan Sulaiman, who is stated to be owner of the house situated near to the spot from where the accused was intercepted, is none other than the employer of the accused. The prosecution would also say that voters identity card retrieved from the body of the accused was also handed over back to the employer of the accused. It is not known as to why the prosecution has not disclosed that the owner of the aforementioned house is none other than the employer of the accused. Sri.Ambadan Sulaiman is not even cited as an independent witness, apart from PW-5. Another person, Sri.Muhammed, S/o.Ambadan Veettil Moideen, who was cited as a charge witness, was not examined as a prosecution witness before the court below. Neither PW-1 (detecting officer) nor PW-6 (investigating officer) have a case that they made any attempt to elicit information from the above said employer of the accused as to the details of the accused and as to since how long he has been in Kerala State, and whether he knew Malayalam, etc. The non-disclosure of the fact that the accused was intercepted near to the residence of his own employer and non-citing of that employer as a witness in this case, raise serious doubts about the Crl.A.1183/12 - : 55 :-
bona fides and credibility of the version projected by the prosecution. Much light could have been easily thrown about the reasons for the very presence of accused at the spot in question on that day in question at that time. The counsel for the appellant has raised a specific plea that there was nothing suspicious about the very presence of the accused in that spot at that point of time on that day, as the accused could have visited his employer's house at that time and as the accused's work place was in a nearby place and that he could have just visited his employer's place and was just in the process of leaving at that point of time. Therefore, the case projected by the prosecution as if the accused was standing in an isolated place in a very suspicious manner and in a place, where he is not expected to be at that time, etc. is to be seriously doubted due to the non- disclosure by the prosecution about the crucial fact that the accused was intercepted from very near to the residence of his own employer.
28. It is to be noted that the case of the prosecution is that after retrieval of the ganja, it was weighed and samples were taken and the samples and residues were separately packed Crl.A.1183/12 - : 56 :-
and sealed and that labels containing the names, signature of the accused, Excise officials and witnesses were affixed on them etc. and that all these steps were done at the place from where the accused was intercepted between 8.30 p.m. and 9.30 p.m. on 12.7.2011. The specimen impression was kept in another cover.
MO-6 series, the labels of MO 5 were also thus affixed at the place of occurrence, as per the case of the prosecution. This process is stated to have been completed by 9.30 p.m. on 12.7.2011 as per the case projected by the prosecution. It is also the admitted case of the prosecution that after 9.30 p.m. they had proceeded with the accused in their vehicle to different other places as part of the patrolling duty and thereafter, they arrived at the Excise office at Aluva and registered the crime at about 2.30 a.m. on the early morning on 13.7.2011. But it is to be noted that all these labels, which are said to be prepared at about 9.30 p.m. on 12.7.2011 at the place of occurrence, are bearing in clear legible writing the crime number of the case. It is the admitted case that the Crime No. and FIR leading to the registration of the crime No.8/11 of Excise Range was registered only immediately after 2.30 a.m. on 13.7.2011. If the crime had Crl.A.1183/12 - : 57 :-
actually been registered only after 2.30 a.m. on 13.7.2011, it is not understandable as to how all the aforementioned labels, which are claimed to have been prepared by 9.30 p.m. on 12.7.2011 are bearing the clear legible writing the Crime No. of the case registered after about five hours. Though this contention has been specifically raised by the defence before the trial court as evident from para 14 of the impugned judgment, the prosecution has not given proper explanation on this crucial contention. The trial court also has not dealt with this issue. The learned Public Prosecutor appearing before this Court, now raises the contention that, it is now revealed by the investigating officer that in most Abkari cases and other cases dealt with by the Excise Departmental officials, they frequently adopt the practice of finding out from the Excise Office as to the number of the last crime that has been registered in the FIR register and that the next number is allotted for the case at hand and whenever the retrieval and sampling and residues preparation are done at a place other than the Excise office, they would write the Crime No. also in the respective slips so as to not to create any confusion in the identity of the materials, vis-a-vis the case concerned.
Crl.A.1183/12 - : 58 :-
29. This Court in the case Ulrichwetz v. State of Kerala, reported in 2012 KHC 108 = 2012 (1) KLD 310, has dealt with similar issue. The said case was also involving the offence under the NDPS Act. Therein after the seizure of the contraband article and arrest of the accused, the detecting officer/investigating officer and his party returned to the Police Station and thereafter registered the FIR. It was the case of the prosecution that the timings given in those documents are correct and there is no contradiction. But this Court held that the FIR cannot be treated as genuine, as the detecting officer had recorded the crime number in the arrest memo, mahazar and the inspection memo, even though the crime number was subsequently alloted in the FIR register. Therefore, this Court held that the version of the Public Prosecutor is not tallying with the procedure deposed by the detecting officer therein that it was only after receiving the information and the seizure and the arrest of the accused that the FIR and the Crime number was recorded later. Accordingly, it was held that if the FIR is prepared after the seizure and arrest of the accused, the Crime number allotted as per the FIR could not have found a place in those documents as in the mahazar, arrest Crl.A.1183/12 - : 59 :-
memo, inspection memo etc. Therefore this Court held that the genuineness of the FIR and/or the information memo and the subsequent mahazar arrest memo etc. are not free from doubt.
30. A similar question has also been considered by the Delhi High Court in the case Zofar v. State reported in 2000 Crl.L.J. 1589. That case was also involved an offence under the NDPS Act. There, the Delhi High Court found that the number of the FIR given on the top of the documents relating to the seizure of the contraband, were in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. But the prosecution had not offered any explanation whatsoever as to under what circumstances the number of FIR has appeared on the top of the aforementioned documents, which were allegedly prepared on the spot much prior to the registration of the FIR. Accordingly, the Delhi High Court held in paragraph 4 therein that this gives rise to two inferences either the FIR was recorded prior to the alleged recovery of the contraband or that the number of the said FIR/Crime number was inserted in the documents after its registration. In both situations it was held by the Delhi High Crl.A.1183/12 - : 60 :-
Court that it would seriously reflect upon the veracity of the prosecution version given by the aforementioned witness and creates a good deal of doubt regarding the recovery of the contraband in the manner alleged by the prosecution. In the light of this legal position laid down by this Court as well as by the Delhi High Court, this Court is inclined to follow the said position so adumbrated in those Court rulings. The suggestion regarding this plea has been put to the prosecution witness by the defence counsel while dealing with this aspect of the matter in the evidence of PW1. PW1 in his chief examination given before the court below has stated clearly about this aspect. A specific contention in this regard has been put forward by the defence before the court below as can be seen from para 14 of the impugned judgment. At least at the time of the argument, it was the duty of the prosecution to effectively rebut this contention raised by the defence. Irrespective as to the veracity of the factual explanation now sought to be made at this belated stage by the prosecutor, the court has to proceed on certain objective and legally justifiable principles on issues of this nature. Therefore, this Court is of the considered opinion that the legal Crl.A.1183/12 - : 61 :-
principles adumbrated by this Court and by the Delhi High Court in the aforementioned decisions cited supra, should be the legally acceptable perspective to deal with issues of this nature as far as the court is concerned. Hence this Court is constrained to hold that legally this aspect could give rise to two inferences that either the FIR was recorded prior to the alleged recovery of the contraband or the number of the said FIR was inserted in these documents after the registration. Both the situations would seriously reflect upon the veracity of prosecution version given by the aforementioned witnesses and would create a good deal of doubt about the recovery of the contraband in the manner projected by the prosecution. So also, as held by this Court in Ulrichwetz's case reported in 2012 KHC 108, para 13, if the FIR has actually been prepared after the seizure and arrest of the accused, the crime number could not have found a place in those documents and therefore, the genuineness of such documents is not free from doubt.
31. It is also be noted that there has been quite a long delay in the recording of the statement of the crucial prosecution witnesses under Sec. 161 of the Cr.P.C. in the instant case. The Crl.A.1183/12 - : 62 :-
offence is stated to have occurred on 12.7.2011. The statement of PW-1 (detecting officer) has been recorded by PW-6 under Sec.161 Cr.P.C. only on 30.1.2012 (after about long 6= months). PW-3 (Excise Guard) has given his Sec.161 statement only on 21.2.2012, that is after long six months. The statement of PW-5 has been recorded by the investigating officer only on 12.11.2011, that is after five months. PW-2, the Village Officer has prepared Ext.P-11 site plan only on 17.1.2012, after long five months of the date of occurrence of the incident. As earlier observed hereinabove, PW-6 investigating officer has not prepared a scene mahazar in this case. No explanation has been offered by the prosecution as to why such long delay has occurred in the recording of the statements of this crucial prosecution witnesses and independent witnesses, as per the provision of Sec. 161 Cr.P.C. No proper explanation is given as to the long delay in preparing Ext.P-P11 site plan. It is not discernible to this Court as to how, in a case involving allegations of interception of an accused involved in a narcotics case, in a public place, the investigation officer could omit altogether in preparing a scene mahazar. No explanation is given by the Crl.A.1183/12 - : 63 :-
investigating officer for the non-preparation of the scene mahazar. It is by now well established by a series of rulings of the Apex Court and various High Courts that long unexplained delay on the part of the investigation in recording of statements of witnesses under Sec. 161 of Cr.P.C., could be fatal, depending on the facts and circumstances of the case. In the instant case, as discussed above, there are serious doubts about the credibility and veracity of some of the crucial versions projected by the prosecution witnesses in this case, especially as the recovery and seizure of the contraband is in violation of the provisions of Sec. 50(1) of the NDPS Act. In view of the various other aspects stated hereinabove, serious doubts have also been found about the believability and credibility of the versions projected by some of the crucial prosecution witnesses. Therefore, the long unexplained delay in recording of Sec.161 statement in this case is serious. It is stated in the evidence of PW-6 (investigating officer) that after occurrence of the offence on 12.7.2011, the formal entrustment and appointment of the investigation officer was made as per proceedings dated 20.7.2011 of the Assistant Excise Commissioner, whereby the Circle Inspector of Excise of Crl.A.1183/12 - : 64 :-
Kunnathunadu Range has been appointed as the investigating officer. But it is also clearly stated by PW-6 that PW-6 took charge in the above said responsibility on 30.9.2011 and that he had commenced the investigation only on 30.9.2011. There has been no explanation by the prosecution as to the long delay in the entrustment of the investigation to the officer concerned and also in the very delay in the commencement of the investigation in a case like this. The appointment process of the investigation officer has been effected only eight days after the occurrence of the offence and the commencement of the investigation has started only after two-and-a-half months from the date of occurrence of the offence. It is not known as to why the investigation has been conducted in such a slipshod manner by the authorities concerned. Keeping in view of the nature of the allegations and the alleged nature of the incidents that involved in the interception of an accused in a public place and, that too, in the night, it is not discernible as to why the investigation officer was not forthwith appointed at least on the next day or two or three days thereafter and that as why there has been such a long delay in the commencement of the investigation.
Crl.A.1183/12 - : 65 :-
Such long unexplained delay in the entrustment of the investigation and the commencement of the investigation in a case like this, cannot be appreciated by this Court. The delay in the commencement of the investigation and the delay in the recording Sec.161 statements could give rise to a vital omission in the investigation and even serious possibilities of concoction of the versions of the prosecution witnesses as held by the Supreme Court in the case Balakrishna Swain v. State of Orissa reported in 1971 Crl.L.J. 670 = AIR 1971 SC 804 = 1971 SCC (Cri) 313, which has subsequently been followed in quite a view decisions as in the case In re. Thangasrai and others reported in 1973 Crl.L.J. 1301, etc.
32. It is clear from the writings in the slips of MO-5 and MO-6 series as well as from the writings in Ext.P-4 seizure mahazar that those documents appear to have been prepared and written in a very legible and clear manner and it suggests that it could not have been done in a public place like the one from where the accused was allegedly intercepted on 12.7.2011 at 8.30 p.m. It is the specific case of the prosecution that all those documents were prepared immediately after the Crl.A.1183/12 - : 66 :-
interception of the accused on 12.7.2011 at about 8.30 p.m. in the night and before 9.30 p.m on the same day. These aspects would lead to a doubt as to whether those documents with the writings thereon could have been prepared only after the patrol party had reached the Excise station office after 2.30 p.m. on 13.7.2011. This would also raise serious doubt about the veracity of the preparation of those documents and also about the veracity of the very version sought to be projected by the prosecution as to the manner in which the alleged incident had taken place.
33. In view of these aspects, this Court has no hesitation to hold that the conviction and sentence imposed on the appellant on the basis of such vitiated search and seizure as held above, are highly unsafe and therefore the same is liable to be interdicted.
In the result, it is ordered that the Criminal Appeal is allowed and the impugned conviction and sentence passed against the appellant by the court below as per the impugned judgment are set aside. Consequently, the appellant is acquitted and he shall be set at liberty forthwith. The appellant shall be Crl.A.1183/12 - : 67 :-
released from custody, if his continued presence in custody is not required in connection with any other case against him. The Registry is directed to send gist of this judgment to the prison concerned, where the appellant/accused is undergoing incarceration.
The Crl. Appeal thus stands allowed, as ordered above.
Sd/-
sdk+ ALEXANDER THOMAS, JUDGE
///True copy///
P.S. To Judge.