Kerala High Court
Sebastian @ Tinu vs State Of Kerala on 9 June, 2017
Author: P.Ubaid
Bench: P.Ubaid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
FRIDAY, THE 9TH DAY OF JUNE 2017/19TH JYAISHTA, 1939
CRL.A.No. 1245 of 2016
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AGAINST THE JUDGMENT IN S.C NO.109/2014 of ADDL.
SESSIONS COURT - VII, ERNAKULAM
APPELLANT/ACCUSED:
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SEBASTIAN @ TINU
S/O.EDWARD, CHULLIKKATTU VEETTIL,
NEAR PYARI JUNCTION,
RAMESWARAM VILLAGE, KOCHI TALUK.
BY ADV. SRI.MATHAI VARKEY MUTHIRENTHY
RESPONDENT/COMPLAINANT:
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STATE OF KERALA
REPRESENTED BY THE CIRCLE INSPECTOR OF EXCISE,
KOCHI,
THROUGHT THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM - 682 031.
BY PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 09-06-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
ab
P.UBAID, J.
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Crl.A No.1245 of 2016
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Dated this the 9th day of June, 2017
J U D G M E N T
The appellant herein challenges the conviction and sentence against him under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act (for short 'the NDPS Act') in S.C No.109/2014 of the Court of Session, Ernakulam.
2. The prosecution case is that at about 12.45 pm., on 24.5.2013 on the side of the public road, near the CSI cemetery, Veli, Fort Kochi, the appellant was found possessing 105 Buprenorphine injunction ampoules (2 ml per ampoule) with the trade name "Lupigesic. The offence was detected by the Circle Inspector of Excise, Fort Kochi on the basis of secret reliable information. The said information was recorded by the Circle Inspector of Excise, and a report regarding the information was sent to the superior officer. When he reached the spot mentioned in the information, he saw the accused sitting on a motor cycle. On suspicion he interrogated the accused. At that time he saw a plastic kit on Crl.A No.1245 of 2016 2 the petrol tank of the motor cycle. The Circle Inspector of Excise informed the accused of his intention to search his body, and he was told about his right to be searched in the presence of a Gazetted Officer or Judicial Magistrate. When the accused insisted that he must be searched in the presence of a Gazetted Officer, the Circle Inspector of Excise informed the Circle Inspector of Police, Fort Kochi, and accordingly he reached there within a few minutes. In the presence of the Circle Inspector of Police, Fort Kochi, the body of the accused was searched by the Excise Circle Inspector. No contraband article could be seized on body search, but when the Excise Circle Inspector examined the plastic kit found on the patrol tank of the motor cycle he saw 105 injunction ampoules of Buprenorphine with the trade name "Lupigesic". The accused was arrested on the spot in the presence of the Circle Inspector of Police, and the quantity of psychotropic substance was seized as per a detection mahazar along with the motor cycle. The accused and the properties were taken to the Excise Office where a crime and occurrence report was registered against the accused. Another Excise Circle Inspector took over investigation, and he submitted final report in court. The case Crl.A No.1245 of 2016 3 came up before the learned Additional Sessions Judge VII, Ernakulam, for trial, as the Special Court notified under the law.
3. The accused appeared before the trial court and pleaded not guilty to the charge framed against him under Section 22(c) of the NDPS Act. The prosecution examined six witnesses in the trial court and proved Exts.P1 to P20 documents. MO1 to MO5 properties were also identified during trial. When examined under Section 313 Cr.P.C the accused denied the incriminating circumstances and projected a defence that nothing was in fact seized from his possession by the Circle Inspector of Excise. The accused did not adduce any evidence in defence. On an appreciation of the evidence the trial court found the accused guilty. On conviction he was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of 1 lakh by judgment dated 24.11.2016. Aggrieved by the said judgment of conviction, the accused has come up in appeal.
4. When this appeal came up for hearing, the learned counsel for the appellant submitted that this is a case where the mandatory procedural requirements under the law were Crl.A No.1245 of 2016 4 not complied with by the detecting officer and the accused is entitled for acquittal on the said legal ground itself. He also submitted that there is no satisfactory evidence to prove the seizure of psychotropic substance from the possession of the accused. On the other hand the learned Public Prosecutor submitted that there is clear and fool proof evidence to prove the prosecution case, and that the detecting officer had in fact complied with the statutory requirements.
5. Of the six witnesses examined in the trial court, PW1 is the Village Officer, who prepared the Ext.P1 plan of the scene of incident, PW2 is the Circle Inspector of Excise, who detected the offence, PW3 is the person who sold the motor cycle No.KL-07/W2397 to the accused as per a sale agreement, PW4 is the independent witness who attested the detection mahazar, PW5 is the Circle Inspector of Police, Fort Kochi, in whose presence the body of the accused was searched under Section 50 of the NDPS Act by PW2 and PW6 is the Circle Inspector of Excise who conducted investigation and submitted final report in court. PW4 turned hostile to the prosecution.
Crl.A No.1245 of 2016 5
6. PW2 has given definite evidence proving the detection in this case. His evidence is that during patrol, he got a secret reliable information about the accused in this case, with the identification details. Ext.P2 is the information recorded by him, and Ext.P3 is the report sent by the Circle Inspector of Excise to the superior officer under Section 42 of the NDPS Act. His evidence is that after recording the information and sending it to the superior officer he proceeded to the scene of incident mentioned in the information. When he reached there he saw the accused, with the identification features mentioned in the information, sitting on the motor cycle No. KL-07/W-2397, with a plastic kit, containing something, placed on the petrol tank of the motor cycle. On suspicion, he interrogated the accused and he expressed his intention to search his body. When asked whether the accused wanted the presence of a Gazetted Officer or the Judicial Magistrate, he insisted for the presence of the Gazetted Officer. Accordingly, he informed the Circle Inspector of Police, Fort Kochi, and as requested by him, the Circle Inspector of Police reached Crl.A No.1245 of 2016 6 there within a few minutes. In the presence of the Circle Inspector of Police, the body of the accused was searched by PW2. But on body search no contraband article could be seized. When he examined the plastic kit found on the petrol tank of the motor cycle, he found 105 ampoules of Buprenorphine injunction with the trade name "Lupigesic", in two socks. On being satisfied that it was Buprenorphine injunction, he arrested the accused on the spot and seized the total quantity of psychotropic substance along with the vehicle, as per a detection mahazar in the presence of the Circle Inspector of Police. This evidence given by the PW2 stands not in any manner discredited.
7. Of course, it is true that the only independent witness examined by the prosecution, turned hostile. But the evidence of PW2 as regards detection is well corroborated by that of PW5, in whose presence the body of the accused was searched and the contraband article was seized. Of course, on factual aspects as regards the arrest of the accused or the seizure of articles much was not argued by the defence. The learned counsel was mainly on the Crl.A No.1245 of 2016 7 procedural requirements, and the non compliance of such requirements.
8. PW5 has given evidence that he reached the spot of detection as requested by PW2, and in his presence PW2 searched the body of the accused. However nothing was seized on body search. PW2 is definite that he had taken ten ampoules as sample. Five ampoules were taken from the quantity contained in one socks and the other five were taken from the other socks. Of course, evidence shows that all the 105 ampoules had identical labels indicating that every ampoule contained Buprenorphine injunction material with the trade name "Lupigesic". The samples were well packed and sealed according to law, and the remaining ampoules were also well packed and sealed at the spot of detection. This evidence given by PW2 stands not discredited. On all material particulars PW2 is well corroborated by PW5. There is absolutely no reason why these two officers should foist a false case against the accused.
9. Investigation in this case was made by PW6. Crl.A No.1245 of 2016 8 There is nothing to show that there was any flaw or irregularity or illegality in the investigation conducted by him. The accused and the properties were produced in court by the Excise Circle Inspector without any delay. Ext.P12 forwarding note was also produced in court on the same day. The Ext.P20 chemical analysis report shows that on analysis at the laboratory the ten sample ampoules were found containing Buprenorphine injunction material. During trial, the material witnesses identified the material objects including the sample packets sealed and labelled at the spot of detection, and also the remaining quantity of injunction ampoules packed, labelled and sealed at the spot of detection.
10. PW3 is only the person who sold the motor cycle to the accused. He has proved the said sale and also Ext.P17 agreement. Of course, it is quite immaterial, who the owner of the vehicle is. The material question is whether any quantity of psychotropic substance was seized from the possession of the accused, as alleged by the prosecution. PW4 examined as independent witness did not support the prosecution. However, his evidence shows that he had seen the accused with the Excise Officials. According to the prosecution, the place of Crl.A No.1245 of 2016 9 detection is near the cemetery at Veli, Fort Kochi. But the evidence of PW4 is that he saw the accused and the Excise Officials at the Parry Junction at a short distance from the said cemetery. Though the witness turned hostile, an examination of his evidence shows that he had in fact seen the arrest of the accused. Anyway, I find that the evidence given by the detecting officer and also the Circle Inspector of Police, who witnessed the search under Section 50 of the NDPS Act is well acceptable even without independent corroboration.
11. As already stated, the defence is very much on the non compliance of the statutory requirements in this case. Ext.P3 is said to be the report sent by PW2 under Section 42 of the NDPS Act. The detection in this case was made at an open place. The contraband article was not seized at any building or conveyance or enclosed place. PW2 got reliable information during his usual patrol duty. PW2 saw the accused near the cemetery, on the side of the public road, and he seized the psychotropic substances from his possession. In fact when the information is regarding the commission of an offence, or possession of any narcotic drug or psychotropic substances, at an open place or a public place, the officer who received the Crl.A No.1245 of 2016 10 information is not bound to record the information. Once an information regarding the commission of such an offence at any building or conveyance or enclosed place is recorded, the officer is bound to sent a report under Section 42(2) of the NDPS Act within 72 hours, to his immediate superior officer. This is not in fact a case where Section 42 of the NDPS Act is applicable. However, PW2 recorded the information and he sent a report to his superior officer. Ext.P2 is the information recorded by him and Ext.P3 is the report sent by him. The accused is not entitled for acquittal on the ground of violation of the procedure under Section 42 of the NDPS Act in this case.
12. In fact this is not a case where the contraband article was seized on search of the body of the accused. The ampoules of Buprenorphine were in a plastic kit, placed on the petrol tank of the motor cycle. Though the injunction ampoules were not exposed, the packet was exposed on the petrol tank. PW2 seized the said plastic kit, and he opened it in the presence of PW5. He saw 105 ampoules of Buprenorphine injunction in the said plastic kit, contained in two socks. In such a situation Section 50 of the NDPS Act is not strictly applicable. PW5 was a Gazetted Officer at that time. His Crl.A No.1245 of 2016 11 evidence is also that in his presence PW2 searched the body of the accused, and he came there as requested by PW2. Ext.P4 document shows that the accused was duly informed of his right to be searched in the presence of a Gazetted Officer or the Judicial Magistrate. I find that though it was not necessary to comply with Section 50 of the NDPS Act in this case, PW2 conducted body search in the presence of a Gazetted Officer, and thus compliance of Section 50 of the NDPS Act stands well proved in this case.
13. Whether Section 42 of the NDPS Act is applicable or not, or whether Section 50 of the NDPS Act is applicable or not, the detecting officer is bound to sent a report to his superior officer under Section 57 of the NDPS Act in a case where any narcotic drug and psychotropic substance is seized. Ext.P15 is the report sent by PW2 under Section 57 of the NDPS Act. This report contains the details required under Section 57 of the NDPS Act, and such compliance stands well proved by PW2. The official superior, who received the report, need not be examined to prove it. Compliance of Section 57 of the NDPS Act can be proved by the detecting officer himself. I find that Section 57 of the NDPS Act was also well complied in this case Crl.A No.1245 of 2016 12 by the detecting officer.
14. The total quantity of psychotropic substance seized in this case from the possession of the accused is 105 ampoules. Each ampoule was of the capacity of 2 ml. Thus the total quantity is 210 ml. Ext.P20 report of analysis shows that the sample was detected as Buprenorphine which is a psychotropic substance. The average weight of the preparation per ampoule was 2.05 gms. Then the total weight of the psychotropic substance will come to 2.05 gm. X 105 =215.25 gms. This will constitute commercial quantity.
15. In Binu v Union of India and others [2011(2) KHC 817] this Court has settled that for computing the quantity of any narcotic drug and psychotropic substance the quantity or weight of the mixture in which the drug is suspended will have to be considered. This Court explained that any preparation weighing more than the quantity prescribed under the law as commercial quantity, will have to be considered, and that what matters is not the quantity of the narcotic content alone in the mixture. In view of the decision of this Court and the notification issued by the Government of India, the total weight of the preparation will have to be Crl.A No.1245 of 2016 13 considered by the Court to see whether it is commercial quantity or not. The weight of 2 ml of Buprenorphine injunction was identified as 2.05 gm in the laboratory. This weight will have to be considered for deciding whether the total quantity is commercial quantity or not. I find that the appellant was rightly convicted by the trial court under Section 22(c) of the NDPS Act.
16. Now the question of sentence. The sentence imposed by the court below in this case is the minimum possible under the law. When the sentence imposed by the trial court is the minimum prescribed under the law, interference in appeal is not possible to modify or to reduce it. Thus, I find that the sentence is also liable to be confirmed. I find no special reason for any sort of interference in the matter of sentence also.
In the result, this appeal is dismissed, confirming the conviction and sentence against the appellant under Section 22
(c) of the NDPS Act in S.C No.109/2014 of the Court of Session, Ernakulam.
P.UBAID, JUDGE ab