Kerala High Court
Lijo Joy vs State Of Kerala on 27 March, 2014
Author: N.K.Balakrishnan
Bench: N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
THURSDAY, THE 27TH DAY OF MARCH 2014/6TH CHAITHRA, 1936
CRL.A.No. 1520 of 2012 (D)
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AGAINST THE ORDER/JUDGMENT IN SC 484/2011 of ADDL.SESSIONS COURT
(ADHOC)-II, ERNAKULAM
APPELLANT/2ND ACCUSED:
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LIJO JOY, AGED 31 YEARS,
S/O.LIJO JOY, MOONJELI HOUSE, ERUMATHALA ALUVA.
BY ADV. SRI.V.N.SUNIL KUMAR
RESPONDENT(S)/STATE :
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STATE OF KERALA
REPRESENTED BY SUB INSPECTOR OF POLICE
ALUVA EASTPOLICE STATION
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM-682031.
BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
27-03-2014, ALONG WITH CRL.A. NO. 635 OF 2013, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
N.K.BALAKRISHNAN, J.
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Crl. Appeal No. 1520 of 2012
&
Crl.A. No. 635 of 2013
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Dated: 27-3-2014
JUDGMENT
Crl.A.No.1520/2012 is filed by the 2nd accused in S.C.No.484/2011 of Additional Sessions Court (Adhoc-II), Ernakulam. First accused therein is the appellant in Crl.A.No.635/2013, which is an appeal preferred through the Superintendent of Central Prison, Viyyur. Smt. Shameena Salahudeen appointed as the State Brief has argued the case for the appellant in Crl.A.No.635/2013.
2. Both accused were found guilty and were convicted by the learned Addl. Sessions Judge for offence punishable under Sec.22(c) r/w Sec.8(c) of NDPS Act. They were sentenced to undergo R.I. for 10 years each and to pay Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 2 1 lakh each as fine, in default whereof, they were directed to undergo R.I. for 2 years each. These two appeals are filed against the said conviction and sentence passed against them.
3. PW1, the Additional Sub Inspector of Police, Aluva Police Station was on patrol duty along with his other police officials on 4.8.2011. At about 6.40 PM on that day, PW1 received a reliable information that an autorickshaw bearing No.KL-7/BL-439 was proceeding from Perumbavoor to Aluva and that it contains some psychotropic substances. Accordingly, PW1 communicated that information to Circle Inspector of Police, Aluva. Ext.P1, a report to that effect was given by PW1 to the Circle Inspector of Police, Aluva. PW1 and other police officials waited for that autorickshaw. At about 7.10 PM, they could see that autorickshaw coming from Perumbavoor side towards Aluva. Though PW1 and his police men showed signal to stop the autorickshaw, disobeying the same, the autorickshaw went ahead. It was Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 3 chased and intercepted. The driver and the passenger of that autorickshaw attempted to flee but they were forcibly intercepted by the police. Their names and addresses were asked. A1 was the driver and A2 was the passenger in that autorickshaw. Since the police party had reasonable belief that the accused were in possession of some narcotic drugs and/or psychotropic substances, they wanted to conduct their body search. The accused were told that they have got a right to be searched in the presence of a Magistrate or a Gazetted Officer. They required the presence of a Gazetted Officer. The Excise Inspector, Aluva Excise Range was informed by sending Ext.P2 letter requiring his presence at the time of search. Accordingly, the Excise Inspector (PW4) reached the spot. PW1 conducted body search in the presence of PW4 and other witnesses. When the body of A1 was searched 11 ampoules of Diazepam was found concealed at his loin. There was a sum of 140/- in the purse. Besides, the driving licence, which was in the Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 4 possession of A1, was also seized. After the body search of A1 was completed, the person of the 2nd accused was also searched. A plastic cover, which was held and possessed by A2 was examined. It contained 95 ampoules of Phenergan. In another bag carried by A2, one syringe and three needles were also seen. Thereafter the autorickshaw was examined. In the back portion of that autorickshaw (where there was no seat) another plastic cover was seen. When examined, that plastic cover was found to contain 750 ampoules of Buprenorphine. A1 and A2 were arrested at about 8.15 PM.
4. Ext.P3 series, the arrest memos of A1 and A2 were prepared. '10 ampoules of Buprenorphine' was taken as sample. It was separately packed and sealed. The signatures of PW1, the witnesses and of the accused were obtained on the labels and affixed it on the sample packet. Similarly, samples of Diazepam and Phenergan were taken. Those sample packets were also similarly packed and sealed. Labels containing the signatures of the witnesses, Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 5 P.W.1 and the accused were affixed on those sample packets as well. The remaining ampoules were separately packed and those ampoules were also seized. All the properties including syringe, needles, plastic cover etc. were seized as per Ext.P6 seizure mahazar. The accused and the properties were taken to the police station. The FIR was registered. The accused, properties and the records were produced before the jurisdictional Magistrate on the next day itself. PW5, the Circle Inspector of Police, Aluva conducted investigation in the matter. When the ampoules were sent for chemical examination, Ext.P12 certificate was received. Since it was found that the accused were in possession of 750 ampoules of Buprenorphine (Lupigesic) - psychotropic substance it was found to be commercial quantity. Besides A1 was in possession of Diazepam - another psychotropic substance.
5. Charge sheet was laid against the accused alleging commission of offence under Section 22 ( c) of the Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 6 NDPS Act. The learned Magistrate committed the case to the Court of Session. After hearing, charge was framed against the accused to which they pleaded not guilty.
6. To prove the prosecution case, PW1 to PW6 were examined and Exts.P1 to P13 were marked. MO1 to MO6 series were also identified and marked.
7. The court below accepted the prosecution case and found both the accused/appellant guilty of the offence under Sec. 22 (c ) of the Act and they were convicted and sentenced as mentioned earlier.
8. Smt. Shameena Salahudeen, the learned counsel appearing for the 1st accused has vehemently argued that no evidence was adduced by the prosecution as to who was the owner of the autorickshaw. It is also submitted that it was not specifically stated in the seizure mahazar or in the FIR that A1 was seen driving the autorickshaw at the relevant time. Though PW4, the Inspector of Excise Range was stated to have been requested to be present at the time Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 7 of search of the accused persons, he did not sign the seizure mahazar (Ext.P6). Since Ext.P6 is the prime document it should have shown the signature of PW4, had he been present at the time of search. Absence of his signature in Ext.P6 should have been given due consideration while appreciating the evidence given by the prosecution witnesses, it is argued. It is further submitted that there was no difficulty for PW4 to be present till the completion of Ext.P6 mahazar, had he been present at the spot. It is further submitted that Ext.P2, the requisition given to PW4 would show that it was received by him at 8 PM, which cannot, in any way reconcile with the prosecution case. The distance from the office of the Excise Inspector to the place of incident is stated to be 3 kms. According to the prosecution, the autorickshaw was intercepted at about 7.10 or 7.15 PM. At the time of arrest of the accused and seizure of articles, there would have been other persons, the place of incident being a busy area Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 8 but the prosecution did not produce any witness of that area. That also would certainly indicate that the seizure of the articles or the arrest of the accused as stated by the prosecution is unworthy of credence, the learned counsel for the accused submits.
9. Learned counsel appearing for the 2nd accused would submit that no psychotropic substance or narcotic drug was seized from the possession of the 2nd accused. The 2nd accused was coming from the hospital. Even according to the prosecution, the 2nd accused was only travelling in that autorickshaw and so, unless any narcotic drug or psychotropic substance was found in his possession, he cannot be found guilty of the offence punishable under Sec.22(c) of the Act. It is further submitted that the only other case of the prosecution is that A2 was in possession of ampoules of Phenergan, which is not a narcotic drug or psychotropic substance and as such, the 2nd accused cannot be found guilty of the offence.
Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 9
10. The following points arise for consideration in both appeals :-
(i) Whether A1, as the driver of the autorickshaw, was driving the autorickshaw at the relevant time ?
(ii) Whether A2 was travelling in that autorickshaw at the relevant time ?
iii) Whether A1 was in possession of 11 ampoules of diazepam when his body was searched by the police officer?
iv) Whether A2 was in his possession 95 ampoules of phenergan, 1 syringe and 3 needles as alleged by the prosecution ?
v) Whether the accused persons were in possession of 750 ampoules of buprenorphine ? Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 10
vi) Whether there was violation of any of the mandatory provisions of NDPS Act and whether the conviction and sentence passed against the appellants are liable to be set aside or interfered with on any of the grounds urged by the appellants ?
11. Ext. P1 is the report sent by P.W.1 to the Circle Inspector of Police as provided under Sec. 42 of the NDPS act informing the Circle Inspector that he (PW1) received an information that in the autorikshaw KL.7 BL 439 two persons were illegally transporting narcotic drug or psychotropic substance and that he and his police party were proceeding to the spot for intercepting and searching the vehicle. That letter was sent at 6.45 p.m. on 4-8-2011.
12. Ext. P2 is the letter sent by the Sub Inspector of Police to the Excise Circle Inspector, Excise Office, Aluva requesting his presence at the time of search of the Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 11 accused persons and the autorickshaw KL7 BL 439. It was stated that the police officer (PW1) had reasonable belief that the accused persons were in possession of narcotic drugs/psychotropic substances and so for the purpose of conducting search of the body of the accused persons, the presence of the Excise Circle Inspector, being a gazetted officer is required.
13. It is vehemently argued by the learned counsel for the appellants that the endorsement made by P.W.4 the Excise Inspector would show that he received that letter at 8 p.m. on 4-8-2011. The time noted on Ext. P2, according to the defence, would demolish the case of the prosecution that P.W.4 was present when the body of A1 and A2 were searched by P.W.1.
14. P.W.1, who conducted the search in the presence of P.W. 4 swore before Court that reliable information was received by him at 6 .45 p.m. and, accordingly, he sent Ext.P1 letter to the Circle Inspector of Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 12 Police. He was waiting for the police party near Cochin Bank Junction at Aluva. At 7.10 p.m. he saw the autorickshaw coming from Perumbavoor side. That vehicle did not stop despite the signal shown by him. Though the two persons including the driver of that autorickshaw tried to flee it was foiled. They were chased and apprehended. The names of those persons were obtained. Thereafter, those accused persons were told that he (PW1) has reasonable belief that they are in possession of narcotic drugs and psychotropic substances and so they have got a right to be searched in the presence of a Magistrate or a Gazetted Officer. The accused required the presence of a Gazetted Officer. Accordingly, as per Ext. P2 letter P.W.1 requested the presence of P.W.4 the Excise Circle Inspector, who is a Gazetted Officer, to be present at the time of search of the body of the persons of A1 and A2. It is stated that immediately, P.W.4 reached there . They convinced the accused persons that they (PW1,4 and other Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 13 officials in the search party) were not in possession of any narcotic drug or psychotropic substances. Thereafter, at first, the body of A1 was searched in the presence of P.W.4 and another independent witness and other officials. It was stated by P.W.1 that 11 ampoules of diazepam were found in the loin of A1. A1 was also in possession of a purse containing Rs. 140/- and also the driving license. Thereafter the body of A2 was searched. A2 was carrying a plastic cover in which 95 ampoules of phenergan were seen. There was another plastic cover in which a syringe and three needles were seen. The rear portion of the autorikshaw was lying vacant without seats having been provided. At that place, there was a plastic cover which contained 30 packets each packet containing 25 ampoules of buprenorphine. (The total would come to 750 ampoules). Since it was found that the aforesaid buprenorphine ampoules were possessed and transported by A1 and A2 both of them were arrested at 8.15 p.m. Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 14 Ext.P3 series are the arrest memos.
15. Ext. P3 is the arrest memo pertaining to the second accused which was signed by P.W.1 and other witnesses. It also contains the arrest memo pertaining to the arrest of the first accused which also was signed by P.W.1 and the witnesses who were present there. Inspection memo was prepared at the time of arrest of A1 and A2. All those documents were marked through P.W.1. These contemporaneous documents would show that the accused persons were arrested at 8.15 p.m. Both the accused were found travelling in the autorickshaw mentioned earlier. Both of them tried to escape on seeing the police. Then both of them were chased and apprehended. They were arrested because of the reasons as stated above and were produced before the learned Magistrate on the next day.
16. It is contended by the prosecution that the presence of P.W.4, the Gazetted Officer (Excise Circle Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 15 Inspector of Excise) was procured in view of the fact that both accused persons made a written request that they required the presence of a gazetted officer. The request requiring the presence of a gazetted officer at the time of search of the accused persons were made by the accused persons was obtained in writing and their signatures are seen on that document as well. Therefore, it cannot be contended that the accused persons did not require the presence of a Gazetted Officer. In fact during trial there was serious challenge regarding that aspect.
17. It is vehemently argued by the learned counsel for the appellants that if P.W.4 had actually been present at the time of search of the accused persons there was no reason why he did not sign Ext. P6 mahazar prepared for the seizure of the articles. The learned counsel for both accused would submit that since Ext. P6 is the important document prepared contemporaneously, had P.W.4 been present he would have certainly signed the same. It is true Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 16 that the action on the part of P.W.4 in leaving the place before completing the mazhar and before signing the document cannot be appreciated. Being a responsible officer, whose presence was required by P.W.1 to witness the search, he should have waited till the mahazar was completed and signed by him. That is the duty imposed on him as per Sec. 56 of the Act. There may not be any legal requirement that mahazar should be signed by he Gazetted Officer in whose presence the search was conducted. The officer was expected to know that the legality of the search would be questioned by the accused contending that the Gazetted Officer was not present. Therefore, it was all the more incumbent on P.W.4 to have signed the document. However, on that ground it cannot be said that the search of A1 and A2 conducted by P.W.1 is vitiated.
18. It is a case where there was due compliance of Sec. 50 of the Act. It was specifically stated in Ext. P6 Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 17 mahazar and in the document obtained from the accused that they were told that it is their right to have the presence of a Magistrate or a Gazetted Officer at the time of conducting the search of the body of the accused persons.
19. It is vehemently argued by Sri. Rajesh Vijayan, the learned Public Prosecutor that, if as a matter of fact, the presence of P.W.4 was not procured or that P.W.1 wanted to tell otherwise there was no difficulty for him to record in Ext.P6 that inspite of the accused being told that they have got a right to be searched in the presence of the Gazetted Officer or a Magistrate, they declined to have the presence of any such officer. On the contrary, it was specifically noted that the accused persons did insist that presence of a Gazetted Officer is required and that was why a request was sent to P.W.4 to be present at the time of search of the body of A1 and A2. Since that request made by the accused is reflected in the document signed Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 18 by the accused persons it would be a futile exercise on the part of the appellants to contend that the mandatory provision contained in Sec. 50 has not been complied with.
20. Though P.W.4 did not sign Ext. P6 mahazar he swore before Court that he had received the letter at 7.30 p.m. as it was brought to him by a police officer and accordingly, he went to the place of incident in his office vehicle. The place of incident is only 3 kms. away from the office of P.W.4. Therefore, it can be found with certainty that P.W.4 reached the place of incident at about 7.30 p.m. The evidence given by P.W4 would show that he introduced himself to the accused persons as a Gazetted Officer and thereafter he and the police officer who were present there for the conduct of the search of the body of A1 and A2 convinced them that P.W.1, P.W.4 and others were not having any contraband articles. His evidence would further show that thereafter when the body of A1 was searched, 11 ampoules of diazepam were found in his Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 19 possession. Besides, his driving licence, Rs. 140/- were also found. He has further stated that A2 was in his direct possession 95 ampoules of phenergan. The evidence given by P.W.4 is consistent with that of P.W.1 that in the rear portion of the autorickshaw there were 30 packets containing 25 ampoules of buprenorphine. It was testified by him that he was actually present at the place of incident at 8 p.m. He has also stated that Ext. P2 bears his signature for having received the letter. It was stated by him that the time was noted by him as 8 p.m. when it was signed by him after reaching the place of incident. As stated earlier, the distance is only about 3 kms. P.W.4 reached there in his office vehicle. Therefore, the contention that P.W.4 could not have been present, is found to be totally untenable. It was stated by him that as he was having other busy official duties, he had to leave the place after the search and seizure as mentioned above. He has identified MO1 to M6 series which were already identified Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 20 and marked through P.W.1.
21. The only question put to PW4 was that he did not sign Ext. P6 mahazar. But he stated that he left the place before preparation of Ext. P6 mahazar. The other suggestion put to him was that he did not sign because he was not present. The evidence given by P.W.6 that after reaching the place, he introduced himself as a Gazetted Officer and that after complying with the formalities, the search of the body of A1 was conducted first and that of A2 was conducted subsequently and the contraband articles were seized from the possession of the accused and from the autorickshaw as spoken to by him was not assailed at all. Therefore, the plea that there was no proper search of the body of A1 and A2 cannot be countenanced. Though so many questions were put to P.W.1 also his evidence regarding the search conducted and seizure effected by him could not be properly controverted at all.
Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 21
22. The evidence given by P.W.1 and other witnesses would show that 10 ampoules of buprenorphine were taken as sample. It was separately packed and sealed and labels/slips containing the signature of P.W.1, other witnesses and of the accused persons were affixed on the samples. Three samples were prepared. Those samples were marked as S1,S2 and S3. Those are the samples which were identified and marked as MO1 series. It is also in evidence that the remaining ampoules were separately marked and sealed. The descriptions of those articles were mentioned in Ext. P6 mahazar. The packets on which the notations P1, P2, P3 etc. were made were identified and marked in Court as MO2 series. The syringe and needle were marked as MO3 series. It is stated that there were 30 packets; each packet contained 25 ampoules. Those properties were marked as MO4 series. The purse seized from the possession of the Ist accused and other property were marked as MO5 series. The driving licence found in Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 22 the pocket of A1 and seized as per Ext. P6 was separately marked as Ext. P5.
23. It is vehemently argued by the learned counsel for the first accused that the said driving license is only a license for riding two wheelers and it was not a driving license authorising the first accused to drive the autorickshaw. The question is not whether A1 was having a valid driving license to drive the autorickshaw but the question is whether such a document (Ext. P5) the driving license, was seen in the pocket of A1. That was seized and produced. Therefore, the contention that since the driving license which authorises the accused to drive an autorickshaw has not been produced, it cannot be said that he was the driver of the autorickshaw, cannot be accepted at all. Since A1 was actually seen driving the autorickshaw, the question whether he was having a valid license to drive the autorickshaw or not is totally immaterial and irrelevant. It was stated by P.W.1 that the Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 23 labels affixed on the samples and the articles mentioned above contained his specimen signature. Those aspects were also not seriously assailed by the defence.
24. It is also in evidence that after the accused were arrested and the properties were seized as per Ext. P6 mahazar, the records and properties and the accused were taken to the police station from where Ext.P4 the FIR was registered. P.W1 has testified that he had also sent a report to his superior officer as required under Sec. 57 of the NDPS Act. Ext. P8 is that report.
25. Ext. P9 is the property list which reached the court on 6-8-2011. The seals on the properties received in Court were intact. Ext. P10 is the forwarding note which also reached the Court on 6-8-2011 along with the properties. Covering letter issued from the court would show that the sealed packets along with the forwarding note were forwarded to the Chemical Examiner. Therefore, it is clear that there was no delay in production Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 24 of the properties or in forwarding the articles for chemical examination.
26. Ext. P11 is the report of analysis where it is reported that Diazepam was detected in the ampoules covered by item S1 and that the ampoules covered by item S1 contained 5mg. of Diazepam per 1 ml.litre of the preparation. It was further certified that promethazine was detected in the ampoules covered by item No. S2. It is noted that it contained 24.13 mg. of Promethazine Hydrochloride. Further it was certified that buprenorphine was detected in the ampoules covered by - item No. S3. It contained 0.30mg of buprenorphine hydrochloride . It was certified that promethazine does not come under the purview of the NDPS Act. It was certified that when the articles reached the Chemical Examiner's Laboratory, the seals on the packet were intact and found tallied with the samples provided. Results of the test conducted on each of the aspects were detailed in the report. There is no Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 25 dispute regarding the fact that buprenorphine was detected in the ampoules covered by item S3 and diazepam was detected in the ampoules covered by item No. S1. Promethazine hydrochloride was contained in item No. S2 which is not a narcotic drug.
27. It is vehemently argued by the learned counsel for the appellant that though auto rickshaw was intercepted and arrest of the accused and seizure of the contraband articles were done at a place near the Bank Junction, the police officials could not secure the presence of independent witnesses and so it has to be doubted as to whether the case of the prosecution is true. The incident took place at about 8PM. PW2 is an independent witness. He says that while he was returning from Perumbavoor and when he reached the Cochin Bank Junction people were seen gathered. Out of curiosity he went to that place where he could see police officials. PW2 at first thought that the police officials were checking vehicles. He is definite and Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 26 certain that the two accused persons were seen near the police and that he could understand that the accused were apprehended as they were engaged in trafficking in narcotic drugs or psychotropic substances. He also asserts that it was in his presence, the police searched the body of A1 and A2. He is also definite and certain that a packet/cover seized from the possession of A1, contained contraband articles. He has supported the evidence regarding the search of the second accused and seizure of contraband articles from the rear portion of that auto rickshaw. He has further stated that thereafter the Mahazar (Ext.P6) was prepared which was signed by him. He has identified his signature in Ext.P6. He has also testified that he had signed on the labels which were affixed on the material objects seized in this case. The material objects which were affixed with the label containing the signature of this witness were identified by this witness (PW2). Therefore, it could be seen that the evidence given by PW1 and PW4 is corroborated by Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 27 the contemporaneous document (Ext.P6) and also the evidence given by PW2.
28. PW3 has only prepared the site plan. PW5 is the Circle Inspector of Police, who has only verified and laid the charge sheet. The investigation was conducted by PW6. From the evidence given by PW1 and other witnesses, it is clear that the auto rickshaw at the relevant time was driven by the first accused and the second accused was a passenger at the relevant time.
29. It is vehemently argued by the learned counsel for the first accused that since 30 packets containing 25 ampoules each (total 750 ampoules) of Buprenorphine were found in a plastic cover seen kept in the back portion of the auto rickshaw, it cannot be said that the first accused was in possession of or transporting those articles. There was no case for the first accused that those articles were kept in the auto rickshaw (rear portion) without his knowledge or that he was totally unaware of the same. The further fact is Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 28 that 11 ampoules of Diazepam was seized from his loin. That also would prove to the hilt that he was trafficking in narcotic drugs or psychotropic substances along with A2 sharing the common intention.
30. The evidence would clearly show that the information received was that two persons were transporting narcotic drug in an auto rickshaw and that it was proceeding from Perumbavoor side towards Aluva. Other aspect is that when PW1 and others showed signals, the vehicle was not stopped. When the police chased that autorickshaw it was stopped a little away from the road and both of them tried to flee. That is a strong circumstance to hold that both of them shared the common intention and that both of them tried to flee from the place knowing fully well that they were in possession of the contraband articles. There was no explanation why both appellants tried to flee from that place. There is yet another aspect. While A1 was in possession of 11 ampoules Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 29 of Diazepam kept at his loin, the other accused (A2) was carrying a plastic cover containing 95 ampoules of Phenergan. Not only that in another bag he was also carrying one syringe and three needles and Buprenorphine was kept in another cover in the rear portion of that autorickshaw. True that Phenergan is not a narcotic drug or psychotropic substance, but the learned Public Prosecutor submits that Phenergan is commonly used by the drug traffickers to inject into the body of students and other youths for giving intoxicating and sedative effect. In such circumstances, it can certainly be found that the 1st and 2nd accused jointly, having the required animus and/or knowledge, kept the plastic cover containing 30 packets, each packet containing 25 ampoules, in that autorickshaw. The fact that both of them tried to flee on seeing the police officials and the further fact that they were seen together would strengthen the case of the prosecution that A1 and A2 had conspired together for trafficking in narcotic drug Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 30 and psychotropic substance. No separate charge for sharing of common intention or conspiracy is required because those aspects are considered only to show that they were in conscious possession and to prove their culpable mental state in regard to the keeping of plastic cover containing ampoules of buprinorphine.
31. It is also pertinent to note that since seizure of psychotropic substance could be proved in the manner stated above, the presumption under Sec. 35 of the NDPS Act is also available to the prosecution. Section 35 says that in any prosecution for an offence under the NDPS Act which requires a culpable mental state of the accused, the court shall presume the existence of such mental state but it shalt 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. The Explanation makes it further clear that "culpable mental state" includes intention motive knowledge of a fact and belief in, or Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 31 reason to believe, a fact. The circumstances pointed out earlier would clearly show that both the accused had the motive and knowledge of the fact; namely the keeping of the packets containing ampoules of buprenorphine in the autorickshaw; they did not stop the vehicle when the police showed the signal and the further fact is that both of them tried to flee from that place. Those factors are sufficiently indicative of the fact that both of them had the intention or at any rate the knowledge of the fact as mentioned above. No evidence or circumstance could be produced by the accused to prove that they were not in conscious possession of the contraband articles or that they were not having the culpable mental state. It is true that the burden cast on the accused may not be so onerous as the burden cast on a prosecution to prove the guilt of the accused beyond doubt. But at the same time, when Sec. 35 says that the burden is on the accused to prove applying the yardstick of preponderance of probabilities, the absence of Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 32 mental state or at any rate to prove that they had no knowledge or even reason to believe the existence of the articles, the contention that they were not in possession of the contrabands cannot be accepted at all. Possession does not mean that the person should be actually found carrying it. It is sufficient that they had the actual domain or control over the same and that the article was in the immediate possession of the accused. The circumstances pointed out above will dispel any doubt lingering in the mind of the court as to the required intention or knowledge of the accused as mentioned above.
32. From what have been delineated earlier it can be found that there was due compliance of Secs.42, 50 and 57 of NDPS Act. There was proper sampling, packing and labelling of the contraband articles as well. The accused persons were properly identified also. They were caught red handed. Hence, the question of identity does not arise. The evidence against first accused is that from his Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 33 possession 11 ampoules of Diazepam was seized.
33. As stated earlier, Diazepam was detected in the ampoules covered by item S1 which contained 5 mgm. of Diazepam per 1 milli litre of the preparation. Diazepam is item No. 43 in the list of Psychotropic substances as can be seen from the Schedule. Buprenorphine was detected in the ampoules covered by item S3 which contained 0.30 mgm. of Buprenorphine Hydrochloride per 1 mil. litre of the preparation. It is item No. 92 in the list of Psychotropic Substances notified as per the Rule. It is not disputed that the total quantity of Buprenorphine seized from the possession of the accused is far in excess of the commercial quantity. Besides, A1 was in possession of Diazepam which also is a Psychotropic Substance. Possession of 95 ampoules of phenergan, though not a psychotropic substance, and the syringe and needles possessed by the second accused would clinch the issue that the packets which contained total 750 ampoules Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 34 of Buprenorphine were actually carried by the second accused with the knowledge of the first accused and that both of them had shared the common intention of selling or using the aforesaid psychotropic substance. The possession of syringe and needles would clinch the issue that both persons were involved in trafficking in the psychotropic substances. Therefore, the contention that the prosecution could not prove the guilt of the accused for offence punishable under Sec. 22 (c ) of the NDPS Act is bereft of any merit. Therefore, I find that the verdict of conviction entered by the trial court is perfectly correct.
34. The accused persons were sentenced to R.I. for 10 years and to pay ` 1,00,000/- (Rupees one lakh only) each as fine which is the minimum punishment prescribed under Sec. 22 (c ) of the Act. Therefore, both these Crl.Appeals are dismissed.
35. Before parting with I would like to Add:
Sri.Rajesh Vijayan, the learned Public Prosecutor Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 35 has made available to me the materials obtained from the official websites of Drugs pertaining to "phenergan". It is stated therein that phenergan can be taken only as prescribed by the doctor. Phenergan is only the common brand name of promethazine. Other brand names like Promethazine are Fargan, Granesse, Avomine, Romergan, Promethagan, are also there for that drug. It is reported that Promethazine is used as a sedative and in some countries it is prescribed to combat insomnia. The report shows that nervous system side effects have been reported most frequently because of consumption of Promethazine (the brand name of which is phenergan). The report states :
"Nervous system side effects have been reported the most frequently. These have included excessive sedation, drowsiness, fatigue, paradoxical excitation, confusion, disorientation, tremors, convulsive seizures, and decreased motor coordination. Extrapyramidal effects (including oculogyric crises, torticollis and tongue protrusion) encephalitic symptoms, convulsions, and psychosis have been rarely reported".
Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 36 It is also reported that neuroleptic malignant syndrome has been rarely observed during treatment with promethazine. It is reported that local side effects have been associated with the inadvertent intra arterial injection of promethazine (the active ingredient contained in Phenergan) which carries a high risk of distal necrosis and frequently requires amputation of the affected limb. It is also reported:
"Respiratory side effects have rarely included respiratory depression and arrest, especially with parenteral administration of promethazine (the active ingredient contained in Phenergan) Equipment for resuscitation should be available when parenteral promethazine is used. Asthma and nasal stuffiness have also been reported".
Various other side effects are also reported. Psychiatric side effects including hallucinations are also reported. Other reactions following a single dose have included nightmares, delirium and agitated behaviour.
36. The learned Public Prosecutor would submit that instances were reported that in the Campuses of Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 37 Educational Institutions, phenergan ampoules were used to be supplied by drug pedlars or inject phenergan into the body of adolescents evidently emboldened by the fact that phenergan is not notified as a narcotic drug/psychotropic substance and as such it is easy for them to go scot free from the clutches of law. It is submitted that instances were in Kerala and in other parts of the country where phenergan is used by the drug traffickers along with other psychotropic substances or even without it by getting it injected into the human body. The intoxicating or sedative effects get doubled when it is mixed with alcohol or with other liquids of psychotropic substances, it is reported. It is for the authorities concerned to ponder over the matter as to whether promethazine known in different brand names should be notified as a psychotropic substance or whether any other suitable amendment is brought to make possession of such drug a separate class of offence so as to combat Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 38 that menace. It would also be advisable to review the schedules based on such inputs and reports, to classify such drugs in such separate Schedules, to prevent the misuse of such drugs, showing great concern to the youth of this country.
37. It is reported that the use of this drug is rampant in campuses of educational institutions, other hostels etc. If immediate action is not taken it will certainly affect the health and wealth of the Society. Without realising the effect of this drug, students are likely to fall prey into the dragnets of such drug pedlars. It is submitted by the learned Public Prosecutor that syringes, needles and ampoules of phenergan are often seized from the possession of such drug traffickers engaged in sale of such campuses It is also submitted by the learned Public Prosecutor that there were instances where the stock register of the Government Hospitals and other Hospitals, noticed missing of phenergan ampoules and syringes in Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 39 large scale, which is strongly indicative of the fact that such drugs reach the hands of unscrupulous drug traffickers.
38. Under the Drugs and Cosmetics Act, for offences under Chapter IV dealt with therein no prosecution shall be instituted except by an Inspector or any Gazetted Officer of the Central Government or a State Government authorised in writing in that behalf by the Central Government or State Government by a General or Special Order made in that behalf by that Government or the person aggrieved or a recognized Consumer Association etc. A police officer who detects the offence under the N.D.P.S. Act may not be in a position to initiate prosecution in view of what is stated in Sec. 32 of that Act. It is also pointed out that mere possession of adulterated drugs, spurious drugs, misbranded drugs etc. are not made punishable under that Act . It is only the manufacture, sale etc. in violation of that Act and Rules which are made Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 40 punishable under that Act. Promethazine of which Phenergan is one of the brand names comes under Schedule G to the Drugs and Cosmetics Rules, 1945 . That Schedule was prescribed as per Rule 97 of Drugs and Cosmetic Rules, 1945, which mainly deals with the sale, manufacture, stock etc. and not with regard to mere possession of phenergan/promethazine how huge the quantity, may be found in the possession of the offender.
39. It is pointed out by Sri. Rajesh Vijayan that there are instances where phenergan or promethazine in other branded names are being sold or injected into the body of students exploiting the situation that possession by itself of this drug is not made an offence under the NDPS act or under other enactments. Since consumption of that drug carries a high risk of distal necrosis and as it frequently requires amputation of the affected limb which is the local side effect associated with the inadvertent intra arterial injection of promethazine the authorities cannot Crl.AppealNo.1520of2012 & Crl.A.No.635of2013 41 turn Nelson's Eye to the dangerous and deleterious effect of this drug on human being especially the youngsters. Even when drug pedlars are using the campuses of educational institutions as the most fertile area the authorities cannot feign ignorance or turn blind or deaf to those aspects.
I do appreciate and place on record my deep appreciation for the sincere effort made by Sri. Rajesh Vijayan, the learned Public Prosecutor for placing the relevant materials and highlighting this Court as to the drug abuse which poses a great menace to the Society.
Dated this the 27th day of March, 2014.
Sd/-N.K. Balakrishnan, Judge.
jvt/ani/das /truecopuy/ P.S. toJudge