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Kerala High Court
Shiju @ Siji vs State Of Kerala on 23 May, 2024
Author: K. Babu
Bench: K. Babu
Crl.Appeal Nos.590/2020, 602/2020, 722/2020 and 671/2021
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
THURSDAY, THE 23RD DAY OF MAY 2024 / 2ND JYAISHTA, 1946
CRL.A NO. 590 OF 2020
CRIME NO.766/2017 OF Valappad Police Station, Thrissur
AGAINST THE JUDGMENT DATED 28.07.2020 IN SC NO.748 OF 2017
OF 1ST ADDITIONAL DISTRICT COURT, THRISSUR
APPELLANT/ACCUSED NO.4:
SHIJU @ SIJI, AGED 44 YEARS
S/O. RAGHAVAN, KONIPPATTU VEEDU, NEAR
PERINCHAMUTTY KAPPELA, BATHEL, IDUKKI DISTRICT.
BY ADV K.V.SABU
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM., PIN-682031.
OTHER PRESENT:
G SUDHEER,PP
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
23.05.2024, ALONG WITH CRL.A.671/2021 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.Appeal Nos.590/2020, 602/2020, 722/2020 and 671/2021
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
THURSDAY, THE 23RD DAY OF MAY 2024 / 2ND JYAISHTA, 1946
CRL.A NO. 602 OF 2020
CRIME NO.766/2017 OF Valappad Police Station, Thrissur
AGAINST THE JUDGMENT DATED 28.07.2020 IN SC NO.748 OF 2017
OF 1ST ADDITIONAL DISTRICT COURT, THRISSUR
APPELLANT/1ST ACCUSED:
RAJENDRAN, S/O.SADASIVAN, MUTTAKKATTIL VEEDU,
NEAR NELLIKUNNU CHURCH, KOTTARAKKARA VILLAGE,
PLAPPALLY P.O., KOLLAM DISTRICT.
BY ADVS.
P.K.VARGHESE
P.S.ANISHAD
K.R.ARUN KRISHNAN
P.T.MANOJ
SANJANA RACHEL JOSE
BIJU KUMAR
REGHU SREEDHARAN
RESPONDENTS/COMPLAINANT & STATE:
1 THE SUB INSPECTOR OF POLICE, VALAPPAD POLICE
STATION, THRISSUR DISTRICT-650567.
2 STATE OF KERALA, REPRESENTED BY THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM682031.
BY ADVS.
SRI.G.SUDHEER, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
23.05.2024, ALONG WITH CRL.A.671/2021 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.Appeal Nos.590/2020, 602/2020, 722/2020 and 671/2021
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
THURSDAY, THE 23RD DAY OF MAY 2024 / 2ND JYAISHTA, 1946
CRL.A NO. 722 OF 2020
CRIME NO.766/2017 OF Valappad Police Station, Thrissur
AGAINST THE JUDGMENT DATED 28.07.2020 IN SC NO.748 OF 2017
OF 1ST ADDITIONAL DISTRICT COURT, THRISSUR
APPELLANT/3RD ACCUSED:
PAVITHRAN, S/O. RAMAKRISHNAN, KALLEPULIKKAL HOUSE,
NEAR MUNIYARA MAHA DEVA TEMPLE, KONNATHADI
VILLAGE, IDUKKI DISTRICT.
BY ADVS.
P.CHANDY JOSEPH
SRI.C.K.VIDYASAGAR
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, 682 031.
OTHER PRESENT:
G SUDHEER,PP
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
23.05.2024, ALONG WITH CRL.A.671/2021 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.Appeal Nos.590/2020, 602/2020, 722/2020 and 671/2021
4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
THURSDAY, THE 23RD DAY OF MAY 2024 / 2ND JYAISHTA, 1946
CRL.A NO. 671 OF 2021
CRIME NO.766/2017 OF Valappad Police Station, Thrissur
AGAINST THE JUDGMENT DATED 28.07.2020 IN SC (NDPS) NO.748 OF
2017 OF 1ST ADDITIONAL DISTRICT COURT, THRISSUR
APPELLANT/ACCUSED NO.2:
ANIL @ LAILEJ, AGED 48 YEARS
S/O. NARAYANAN, KANIRATHINGAL VEEDU, THEKKINKANAM,
RAJAKKAD VILLAGE, ELLAKKALLU POST, UDUMBANCHOLA
TALUK, IDUKKI DISTRICT.
BY ADV GEORGE SEBASTIAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, KOCHI 682 031
ADV.G SUDHEER, PP
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
23.05.2024, ALONG WITH CRL.A.590/2020, 602/2020 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Crl.Appeal Nos.590/2020, 602/2020, 722/2020 and 671/2021
5
K. BABU, J.
-------------------------------------------
Crl.Appeal Nos.590/2020, 602/2020, 722/2020
and 671/2021
-------------------------------------------
Dated this the 23rd day of May, 2024
COMMON JUDGMENT
The appellants are accused in Sessions Case No.748/2017 on the file of the 1st Additional Sessions Court, Thrissur. The appellant in Crl.Appeal No.602/2020 is accused No.1. The appellant in Crl.Appeal No.671/2021 is accused No.2. The third accused is the appellant in Crl.Appeal No.722/2020. The appellant in Crl.Appeal No.590/2020 is accused No.4.
2. The appellants have been convicted under Sections 20(b)II(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The charge against the appellants/accused is that, on 27.05.2017 at 15.15 hrs, they were found possessing 25.790 kgms of ganja in a car bearing registration No.KL-24E-1406 and 42.730 grams of ganja in a pick up van bearing registration No.KL-09-2430 at Kothakulam beach.
Crl.Appeal Nos.590/2020, 602/2020, 722/2020 and 671/2021 6
3. The Sub Inspector of Police, Valappad arrested the accused from the place of occurrence along with the contraband substance.
4. The Investigating Officer submitted final report. The appellants/accused appeared in response to the summons. They pleaded not guilty to the charge and therefore they came to be tried by the trial court. The prosecution examined PWs.1 to 22 and proved Ext.P1 to P22 and Mos.1 to 77. Ext.D1 was marked as case diary contradiction. The learned Sessions Judge found the appellants guilty of the offence alleged and passed the impugned judgment of conviction and sentence.
5. I have heard Sri.K.V.Sabu, Sri.P.K.Varghese, Sri.C.K.Vidyasagar and Sri.Mohamed Sabah, the learned counsel appearing for the appellants and Sri.G.Sudheer, the learned Public Prosecutor appearing for the State.
6. The learned counsel for the appellants raised the following grounds to challenge the conviction and sentence:
(a) The prosecution failed to establish the link connecting the accused and the contraband allegedly seized.
(b) The samples of the seized contraband were not drawn in the presence of the jurisdictional Magistrate and the Crl.Appeal Nos.590/2020, 602/2020, 722/2020 and 671/2021 7 inventory of the seized contraband was not duly certified by the Magistrate.
(c) The act of drawing the sample by the Detecting Officer at the scene of occurrence is against the mandate of Section 52A of the NDPS Act.
7. The Sub Inspector of Police, Valappad [PW1] is the Detecting Officer. On 27.05.2017, PW1 got reliable information that two vehicles were parked at Kothakulam beach with intend to sell ganja. PW1 recorded the information and intimated the same to the Superior Officer and proceeded to the place of occurrence along with four other members of his police team. They reached the place of occurrence at 15.15 hrs. PW1 found a car bearing registration No. KL-24E-1406 and a pick-up van bearing registration No. KL-09-2430 at the beach. PW1 searched the vehicles and the body of the accused in the presence of the Circle Inspector of Police, Kodungalloor [PW4]. PW1 recovered five polythene packets and 10 other bags sticked with brown cellophane tape from the car bearing registration No.KL-24E- 1406. The packets contained ganja consisting leaf, flowers, stem and fruit. The contraband weighed 25.79kgs. PW1 recovered 42.73grams of ganja from the pick up van also. The Detecting Officer collected samples from each of the 15 packets recovered from the car. The Crl.Appeal Nos.590/2020, 602/2020, 722/2020 and 671/2021 8 remaining ganja taken from the car was taken in polythene covers and marked as Ext.C1 to C15. He also collected sample of ganja recovered from the pick up van at the scene of occurrence. The samples were packed in brown paper, sealed and labelled. The Detecting Officer also collected two samples from the ganja seized from the pick up van. The remaining ganja was packed in a brown paper, sealed and numbered as C16 to C38. The samples collected from the car were numbered as S1 to S30 and the samples collected from the pick up van were numbered as S31 to S76.
8. The properties, including the samples, were produced before the Court as per Ext.P13 property list. The samples were then forwarded to the Forensic Science Laboratory for analysis. Ext.P20 FSL report was prepared at the laboratory. Ext.P20 revealed that the contraband seized was ganja.
9. The learned counsel for the appellants submitted that the mandate of Section 52A of the NDPS Act had not been complied with leading to the conclusion that Ext.P20 report has no evidentiary value. The learned counsel for the appellants relied on Union of India v. Mohanlal and Another [2016 KHC 6069], Bothilal v. Intelligence Officer, Narcotics Control Bureau [2023 KHC Crl.Appeal Nos.590/2020, 602/2020, 722/2020 and 671/2021 9 6460], Simarnjit Singh v. State of Punjab [2023 KHC 6642], Yusuf @ Asif v. State [2023 KHC 7154] and Mohammed Khalid v. State of Telangana [2024 KHC Online 6105] in support of their contention.
10. Admittedly, the Detecting Officer had drawn the samples at the scene of occurrence and he did not forward the contraband substance as provided under Section 52 A of the NDPS Act.
11. As per sub-section (2) of S.52A, upon seizure of the contraband substance, he should forward the contraband to the officer - in charge of the nearest Police Station or the officer empowered under S.53, as the case may be, who shall prepare an inventory as stipulated therein and make an application to the Magistrate to certify the correctness of the inventory, certify the truthfulness of the photographs of such drugs or substances, draw representative samples in the presence of the jurisdictional Magistrate and certify the correctness of the list of samples so drawn. As per sub-section (3) of S.52A, when such an application is filed, the Magistrate shall allow the same.
12. The intention of the legislature by incorporating S.52A in the NDPS Act is to see that the process of drawing the sample has to Crl.Appeal Nos.590/2020, 602/2020, 722/2020 and 671/2021 10 be in the presence and under the supervision of the Magistrate, and the entire exercise has to be certified by him to be correct. Sub-section (4) of S.52A says that every court trying an offence under the NDPS Act shall treat the inventory, photographs of the contraband substance and the list of samples drawn under sub-section (2) and certified by the Magistrate as primary evidence in respect of such offence.
13. In Mohanlal (supra), the Apex Court observed that it is manifest that upon seizure of the contraband, it has to be forwarded either to the officer in charge of the nearest Police Station or to the officer empowered under S.53 as the case may be, who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate to get its correctness certified.
14. In Bothilal v. Intelligence Officer, Narcotics Control Bureau, 2023 SCC OnLine SC 498 while considering a case where the detecting officer had drawn samples from the contraband at the place of seizure without following the provisions of S.52A of the Act, following Mohanlal (supra) the Supreme Court held that the act of drawing sample at the time of seizure not in conformity with the law declared in Mohanlal creates serious doubt Crl.Appeal Nos.590/2020, 602/2020, 722/2020 and 671/2021 11 about the prosecution case that the substance recovered was contraband.
15. Following Mohanlal, in Simarnjit Singh (supra), the Supreme Court held that the drawing of sample by the detecting officer at the time of seizure and not following the statutory provision under S.52A creates serious doubt about the prosecution case that the substance seized was a contraband.
16. In Yusuf @Asif (supra), the Supreme Court reiterated that once there is no primary evidence obtained as provided under S.52A of the NDPS Act, the trial as a whole stands vitiated.
17. In Mohammed Khalid (supra), the Apex Court held that, in cases where proceedings under Section 52A of the NDPS Act were not undertaken by the Investigating Officer for preparing an inventory and obtaining samples in the presence of the jurisdictional Magistrate, the FSL report is nothing but a waste paper and cannot be read in evidence.
The resultant conclusion is that, Ext.P20 report prepared at the Forensic Science Laboratory has no evidentiary value. Consequently, I am of the view that the prosecution failed to establish the link connecting the accused with the contraband allegedly seized. Crl.Appeal Nos.590/2020, 602/2020, 722/2020 and 671/2021 12 Therefore, the prosecution failed to prove the charge against the appellants/accused. The conviction and sentence passed by the learned Sessions Judge overlooking these vital aspects of the matter cannot be sustained. Therefore, the appellants/accused are not found guilty of the offences alleged. They are acquitted of the offences alleged. They are set at liberty. The Superintendent of the Central Prison concerned shall release the appellants forthwith, if their detention is not required in any other case.
The Criminal Appeals are allowed as above.
Sd/-
K. BABU JUDGE Sbna/ Crl.Appeal Nos.590/2020, 602/2020, 722/2020 and 671/2021 13 APPENDIX OF CRL.A 590/2020 PETITIONER ANNEXURES Annexure A1 A COPY OF THE DISCHARGE CERTIFICATE DT.27.10.2022 ISSUED FROM GOVT. MEDICAL COLLEGE HOSPITAL, IDUKKI Annexure A2 A COPY OF THE MEDICAL CERTIFICATE DT.29.10.2022 ISSUED FROM ALPHONSA HOSPITAL, MURICKASSERY