Kerala High Court
Karthik vs State Of Kerala on 10 February, 2021
Author: B.Sudheendra Kumar
Bench: B.Sudheendra Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942
Crl.MC.No.4542 OF 2020(G)
AGAINST THE ORDER/JUDGMENT IN ST 397/2020 OF JUDICIAL MAGISTRATE
OF FIRST CLASS -II,ATTINGAL
CRIME NO.151/2020 OF Kazhakkuttom Police Station ,
Thiruvananthapuram
PETITIONER/S/ACCUSED:
KARTHIK
AGED 30 YEARS
S/O. VIJAYAKUMAR, TC NO. 52/380, SREEVISHAK, AMRITHA
NAGAR, KAIMANAM, NEMOM VILLAGE, THIRUVANANTHAPURAM.
BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
SRI.V.VINAY
SRI.B.ANANTHU
SRI.K.ANAND (A-1921)
RESPONDENT/S/STATE:
STATE OF KERALA
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682 031, (CRIME NO.151/2020 OF KAZHAKKUTTAM
POLICE STATION, THIRUVANANTHAPURAM).
SMT.M. K. PUSHPALATHA,SR.PP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
10.02.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.No.4542 of 2020
2
O R D E R
The petitioner is the sole accused in S.T.No.397/2020 on the files of the Court of the Judicial Magistrate of First Class-II, Attingal. The offence alleged is punishable under Section 27(b) of the Narcotic Drugs and Psychotropic Substances Act (for short 'the NDPS Act').
2. The prosecution allegation as revealed in the final report is that on 24.01.2020 at about 2.15 a.m., the petitioner was found consuming narcotic drug in contravention of the provisions of the NDPS Act.
3. The petitioner in this Crl.M.C. prays for quashing Annexure-III final report and further proceedings against the petitioner in S.T.No.397/2020 Crl.M.C.No.4542 of 2020 3 on the files of the court below.
4. Heard the learned counsel for the petitioner and the learned Senior Public Prosecutor. I also perused the case diary and the lower court records.
5. The learned counsel for the petitioner has argued that since the conjoint reading of the First Information Statement, mahazar, the statements of witnesses recorded under Section 161 Cr.P.C. and the final report would reveal that the prosecution is not having a consistent case, Annexure-III final report and further proceedings against the petitioner cannot be sustained. It has been further argued by the learned counsel for the petitioner that since the records including the mahazar, the First Information Statement and the statements of witnesses under Section 161 Crl.M.C.No.4542 of 2020 4 Cr.P.C. were prepared in printed formats by filling up the blank spaces, it has to be held that the prosecution case is artificial and consequently Annexure-III final report and further proceedings against the petitioner are liable to be quashed.
6. As per Annexure-I mahazar, the Sub Inspector of Police and party, during the course of patrolling, found the petitioner in a suspicious condition. When the police party intercepted the petitioner, they were satisfied that the petitioner was using some kind of narcotic drug. Therefore, he was arrested. It is further stated in Annexure-I mahazar that no narcotic drug was found in possession of the petitioner at the relevant time.
7. Annexure-II is the First Information Report. Crl.M.C.No.4542 of 2020 5 The Sub Inspector of Police, Kazhakkuttam is the informant. The information recorded by the Sub Inspector of Police himself is the First Information Statement, which is annexed to Annexure-II First Information Report.
8. As per the First Information Statement, when the Sub Inspector of Police and party reached the place of occurrence, they saw the petitioner smoking a beedi. When intercepted, the Sub Inspector of Police and party were satisfied that the said beedi was a ganja beedi. The said beedi was seized by the Sub Inspector of Police as per a mahazar.
9. The statement of the Assistant Sub Inspector of Police Shri.Binukumar and the statement of the Civil Police Officer Shri.Sujith were recorded in connection Crl.M.C.No.4542 of 2020 6 with this case. In the said statements, the said witnesses stated that during the course of patrol duty, when the police party reached the place of occurrence, they saw the petitioner using some type of liquid narcotic drug. The Sub Inspector of Police arrested the petitioner and thereafter he prepared a mahazar in which the witnesses signed.
10. Annexure-III final report would show that the petitioner was found using narcotic drug at the relevant time. It appears from Para 5 of statement dated 18.12.2020 filed by the Sub Inspector of Police that the police party was satisfied due to the strong smell of ganja emanating from the breath of the petitioner that the petitioner was smoking ganga. It was further stated in the said para that when the police Crl.M.C.No.4542 of 2020 7 party approached the petitioner, the petitioner threw away the cigarette possessed by the petitioner.
11. This Court summoned the Sub Inspector of Police concerned to the court and asked him as to whether he had sent the ganja beedi for chemical analysis. Then he replied that no such ganja beedi was seized from the petitioner as stated in the First Information Statement. The statement filed by the Sub Inspector of Police would also reveal that no incriminating material was seized from the petitioner as stated in the First Information Statement. Annexure- I spot mahazar, prepared by the same Sub Inspector of Police, would also show that no incriminating material was found in possession of the petitioner. It appears from the statements of witnesses recorded under Crl.M.C.No.4542 of 2020 8 Section 161 Cr.P.C. that the petitioner was using some kind of liquid narcotic drug at the relevant time. However, it is clear from Annexure-I mahazar and the statement dated 18.12.2020 filed by the Sub Inspector of Police that the First Information Statement, to the extent it relates to the seizure of ganja beedi, is not correct.
12. The allegation as per the First Information report is that on 24.1.2020 at 2.15 a.m., the petitioner was found smoking a ganja beedi. However, in the final report, the prosecution allegation is that on 24.01.2020 at about 2.15 a.m., the petitioner was found using narcotic drug. The final report was not specific with regard to the type of narcotic drug allegedly used by the petitioner. The First Information Crl.M.C.No.4542 of 2020 9 report, the final report, the mahazar and the statements of witnesses must explain what exactly is the prosecution case. In this case, even though it is stated in the First Information report and the First Information statement that ganja beedi was seized from the petitioner, Annexure-I mahazar, which was prepared contemporaneously, would show that no narcotic drug was seized from the petitioner. The statements of witnesses also do not support the allegation in the First Information report and the First Information Statement that the petitioner was found smoking ganja beedi. On the other hand, the statements of witnesses would show that the petitioner was found using some type of liquid narcotic drug. They signed the mahazar prepared by the Sub Crl.M.C.No.4542 of 2020 10 Inspector of Police at the spot. However, the mahazar does not show that any liquid type of narcotic drug was seized from the spot. The above discussion would make it clear that the case set up by the prosecution is different in different records. Thus it appears that the prosecution does not have a consistent case against the petitioner in this case, which itself would lead to the inference that the prosecution case is doubtful.
13. The Sub Inspector of Police concerned in his statement reported that the witness notes prepared for Crime No.150/2020 under Section 15(c) of the Abkari Act were mistakenly submitted along with the present case. In view of the above statement, this Court called for the records relating to Crime No.150/2020 from the court concerned. However, it appears that all Crl.M.C.No.4542 of 2020 11 statements of witnesses recorded in that case were already produced before the court in that case. That apart, the statements in that case do not have any connection at all with the statements of witnesses produced in the present case. Thus, it appears that the statement made by the Sub Inspector of Police in this regard in his report is totally incorrect. It appears that the Sub Inspector of Police had registered the crime and conducted the investigation in an irresponsible and callous manner.
14. It appears from the records that Annexure-I mahazar, the First Information Statement annexed to Annexure-II First Information Report, the prosecution case in Annexure-III final report and the statements of witnesses appended to Annexure-III final report were Crl.M.C.No.4542 of 2020 12 prepared in printed formats by filling up the blank spaces. In view of the above, this Court directed the Sub Inspector of Police concerned to file explanation as to why all the above said records were prepared in printed formats by filling up the blank spaces. The Sub Inspector of Police concerned filed his explanation stating that the practice of submitting mahazar and witness notes in printed formats was the procedure being followed in his Police Station. It was further stated in the explanation that it is very difficult to complete the paper work in all the cases if not prepared in printed formats. Therefore, in order to reduce the workload in the Police Station, the above practice is being followed.
15. In view of the above explanation Crl.M.C.No.4542 of 2020 13 submitted by the Sub Inspector of Police, this Court directed the Superintendent of Police concerned to submit his remarks about the preparation of documents in printed formats. Accordingly, a statement was filed by the Superintendent of Police, justifying the practice of using printed formats in his District by stating that the heavy law and order duties in Thiruvananthapuram city might have led to the practice of using printed formats for submitting documents along with the charge-sheet. Since the mahazar is a document prepared contemporaneously with the search and seizure, this Court directed the Superintendent of Police concerned to file further explanation as to why he supported the preparation of mahazars in the printed formats in the Police Stations Crl.M.C.No.4542 of 2020 14 in his District. In the additional statement filed by the Superintendent of Police, he stated that the practice of preparing the mahazar and the statements of witnesses in printed formats could not be justified. He further stated that he had given direction to all concerned not to repeat such practice in Police Stations.
16. It appears that the mahazar in this case was prepared in the printed format by filling up the blank spaces with pen. The mahazar is a document, which is prepared contemporaneously with the search and seizure. It is prepared at the spot. What the officer sees at the spot will be recorded in the mahazar. It is direct evidence. Nobody can anticipate that the Officer would see a particular thing at a particular Crl.M.C.No.4542 of 2020 15 place in advance. If that be so, it is not discernible as to how a spot mahazar can be prepared in a printed format by filling up the blank spaces.
17. Since Annexure-I is a spot mahazar, it is not discernible as to how the said mahazar could be prepared in a printed format. In the same way, the First Information Statement annexed to Annxure-II First Information Report was also prepared in a printed format. The statements of witnesses under Section 161 Cr.P.C. were also prepared in printed formats by filling up the blank spaces. The final report relating to this case was also prepared in a printed format by filling up the blank spaces.
18. Sub-Section(3) of Section 161 Cr.P.C. would provide that if the Police Officer reduces the statement Crl.M.C.No.4542 of 2020 16 of a witness into writing, he shall make a separate note and true record of the statement of the person whose statement he records. It is elementary that nobody can anticipate that a particular witness would give a particular type of statement. If that be so, no statement of any witness can be recorded in printed formats by filling up the blank spaces. The preparation of the spot mahazar, the First Information Statement and the statements of witnesses in printed formats by filling up the blank spaces would lead to the inference that the case set up by the prosecution in this case is artificial.
19. The above discussion would show that the case set up by the prosecution appears to be artificial and doubtful. Therefore, no successful prosecution against Crl.M.C.No.4542 of 2020 17 the petitioner can be maintained on the basis of the materials produced before the court. Consequently, the final report and further proceedings against the petitioner in S.T.No.397/2020 on the files of the court below are liable to be quashed. It is quashed accordingly.
In the result, this Crl.M.C. stands allowed. Even though this Court is of the firm opinion that the Sub Inspector of Police concerned did not perform his duties correctly and in accordance with law, it appears that the said manner of performing the duties was due to the lack of proper supervision by the Superior Police Officers and also due to the lack of proper training on practical side. In view of the above, it is directed that no disciplinary action/ proceeding Crl.M.C.No.4542 of 2020 18 shall be initiated against the Sub Inspector of Police concerned in connection with the observation made in this case. Since this Court had already given direction as per Order in Crl.M.C. 4537/2020 to the Secretary, Home Department, Government of Kerala and also to the Director General of Police, Kerala to issue necessary direction to the police officers not to conduct investigation in a callous and irresponsible manner, no separate direction is required in this case.
Sd/-
B. SUDHEENDRA KUMAR, JUDGE RK Crl.M.C.No.4542 of 2020 19 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE 1 A TRUE CERTIFIED COPY OF THE MAHAZAR PREPARED AT 2.15 AM ON 24.1.2020.
ANNEXURE II A TRUE CERTIFIED COPY OF THE FIR IN CRIME NO.151/2020 OF KAZHAKKUTTAM POLICE STATION.
ANNEXURE III A CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.151/2020 OF KAZHAKKUTTAM POLICE STATION WHICH IS NOW PENDING AS ST NO.397/2020 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, ATTINGAL.
RESPONDENT'S/S EXHIBITS:NIL