Nafsal @ Nappa vs State Of Kerala
2021 Latest Caselaw 4099 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

          THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

    THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942

                       Crl.A.No.28 OF 2019

  AGAINST THE ORDER/JUDGMENT IN SC 132/2016 DATED 31-07-2018 OF
              DISTRICT & SESSIONS COURT, ALAPPUZHA

         CRIME NO.515/2013 OF AMBALAPPUZHA POLICE STATION


APPELLANT/S/ACCUSED:

             NAFSAL @ NAPPA
             AGED 32 YEARS
             CONVICT NO.2911
             CENTRAL PRISON AND CORRECTIONAL HOME,
             THIRUVANANTHAPURAM.

             STATE BRIEF ADV.SREEVINAYAKAN K.V.

RESPONDENT/S/COMPLAINANT:

             STATE OF KERALA
             REPRESENTED BY THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKULAM.

             SMT. M. K. PUSHPALATHA, SR.PP

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.A.No.28 OF 2019

                           2




                      JUDGMENT

The appellant is the first accused in S.C.No.132 of

2016 on the files of the court below. The appellant was

convicted and sentenced by the court below under

Section 8(c) read with Section 22(b) of the Narcotic

Drugs and Psychotropic Substances Act, 1985 (for

short "the NDPS Act").

2. The prosecution case is that on 13.04.2013 at

about 8.10 p.m., the appellant was found in possession

of 2 ampules of 2 ml each of lupigesic injection

(buprenorphine) in the pocket of his pants without

having any licence or authority. It is alleged that the

said contraband was possessed by him for his personal Crl.A.No.28 OF 2019

use. It is further alleged that the above contraband

articles were supplied to the appellant by the second

and the third accused in the crime.

3. During the course of patrol duty, PW3 and the

police party found the appellant in a suspicious

condition on the western side of the bystander's

waiting shed in the compound of the Government

Medical College, Vandanam on 13.04.2013 at about

8.00. p.m. When the appellant was intercepted, he

could not give any proper explanation for his presence

there. Therefore, his body was searched suspecting

that he was carrying weapons. During the course of

search, the above said contraband was recovered from

the pocket of his pants. He was arrested by PW3. The

contraband articles were also seized and sealed at the Crl.A.No.28 OF 2019

spot as per Ext.P1 Mahazar. Thereafter, the appellant

was taken to the police station along with the

contraband articles and the contemporary records.

Thereafter, Ext.P5 FIR was registered. PW4 conducted

the investigation. The final report was filed before the

court after completing the investigation.

4. In the trial, PW1 to PW4 were examined and

Exts.P1 to P19 were marked for the prosecution,

besides identifying MO1 to MO3. The defence did not

adduce any evidence.

5. After evaluating the evidence, the court below

found the appellant guilty under Section 8(c) read with

Section 22(b) of the NDPS Act and convicted him

thereunder. He was also sentenced to rigorous

imprisonment for five years and a fine of Rs.50,000/- Crl.A.No.28 OF 2019

(Rupees Fifty Thousand Only) with a default clause for

rigorous imprisonment for six months under Section

8(c) read with Section 22(b) of the NDPS Act. The set

off was also allowed as provided under Section 428

Cr.P.C.

5. This appeal was filed from the jail. Initially

Adv. Sri. Abdul Kareem P.S. was appointed as the State

Brief. Thereafter, since Adv. Abdul Kareem was laid up

due to Covid - 19, this Court appointed Adv. Sri.

Sreevinayakan K.V. as the State brief for the

expeditious disposal of the appeal, as the appellant is

in jail.

6. Heard the learned State Brief and the learned

Public Prosecutor.

7. PW3 is the detecting officer in this case. Crl.A.No.28 OF 2019

During the course of patrol duty, he found the

appellant in a suspicious condition on the western side

of the bystander's waiting shed in the compound of the

Government Medical College, Vandanam on 13.04.2013

at about 8.00. p.m. The appellant was intercepted by

PW3 and police party. The police party entertained a

doubt that the appellant possessed weapons.

Therefore, his body was searched. No weapon was

recovered from his possession. However, 2 ampules of

2 ml each of lupigesic injection was found in the pocket

of his pants. PW3 arrested the appellant. The

contraband articles were seized and sealed at the spot

as per Ext.P1 Mahazar. PW1 was a Civil Police officer,

who accompanied PW3 at the relevant time. He had

also given evidence fully supporting the evidence of Crl.A.No.28 OF 2019

PW3 in all material aspects. He also proved the seizure

of the contraband and the arrest of the appellant.

PW1 also supported the evidence of PW3 with regard

to the sealing of the contraband. PW2 was an

independent witness, who also fully supported the

evidence of PW1 and PW3 in all material aspects.

8. The learned State Brief has argued that since

there was no compliance with the provisions of Section

50 of the NDPS Act, the appellant is entitled to be

acquitted. It has been further argued by the learned

State Brief that since there was gross violation of the

provisions of Section 57 of the NDPS Act, the appellant

is entitled to be acquitted on that ground as well.

9. As per Section 50 of the NDPS Act, the

accused has the right to be searched in the presence of Crl.A.No.28 OF 2019

a Magistrate or a Gazetted Officer. In this case, the

court below had recorded that since the search was

not on prior information that the appellant possessed

the narcotic drug, there was no violation of the

provisions of Section 50 of the NDPS Act. It is clear

from the evidence of PW1 and PW3 that they did not

get any previous information with regard to the

possession of the contraband by the appellant. It is

further clear from the evidence of PW1 and PW3 that

they did not proceed to the place of occurrence on

getting any information in this regard. The evidence of

PW1 and PW3 would show that during the patrol duty,

when the appellant was found in a suspicious

condition, he was intercepted and his body was

searched suspecting that he possessed weapons. Crl.A.No.28 OF 2019

However, during the course of search, the contraband

articles were recovered. It is true that PW4, who filed

the final report, stated that PW3 received reliable

information and the said information was conveyed to

him. However, PW4 himself stated that no record was

available to show that any information was received

from PW3 in this regard. In the absence of any

document to support the evidence of PW4 in this

regard, the evidence of PW1 and PW3 that they did not

receive prior information can be safely believed.

10. Ext.P1 Mahazar was prepared at the time of

search and seizure. Ext.P1 would also make it clear

that no previous information with regard to the

possession of contraband by the appellant was

received by PW3 and police party. On the other hand, Crl.A.No.28 OF 2019

it is clear from Ext.P1 that the detention was effected

during the course of normal patrol duty.

11. Ext.P5 is the FIR, which contains the

F.I.statement of PW3. The said statement would also

show that the offence in this case was detected

incidentally during the course of patrol duty. In view

of the above materials, this Court is of the firm view

that the court below was perfectly right in holding that

there was no violation of the provisions of Section 50

of the NDPS Act in this case. Therefore, the argument

in this regard advanced by the learned Counsel for the

appellant cannot be accepted.

12. Section 57 of the NDPS Act provides that

whenever any person makes any arrest or seizure

under the NDPS Act, he shall, within forty eight hours Crl.A.No.28 OF 2019

next after such arrest or seizure, make a full report of

all the particulars of such arrest or seizure to his

immediate superior officer. It is clear from the

evidence of PW3 that there was strict compliance of

the provisions of Section 57 of the NDPS Act. In view of

the above, I find no merits in the argument in this

regard advanced by the learned State Brief. No other

argument has been advanced by the learned State Brief

to assail the judgment.

13. The evidence of PW3, the detecting officer

would prove the detection and the seizure of the

contraband and also the arrest of the appellant. The

sealing of the contraband was also proved by PW3.

PW1 also support the evidence of PW3 in all material

aspects including the arrest of the appellant, seizure of Crl.A.No.28 OF 2019

the contraband and the sealing of the contraband.

PW2 is an independent witness, who also fully

supported the evidence of PW1 and PW3 in all

material aspects. Ext.P6 is the property list which

would show that the contraband was produced before

the court without delay. Ext.P19 report of the Forensic

Science Laboratory would show that the contraband

articles contained buprenorphine, a thebaine

derivative, which is an opium alkaloid.

14. Having gone through the evidence of PW1 and

PW3, I do not find any reason to disbelieve their evidence

with regard to the seizure of the contraband and the arrest of

the appellant. The evidence of PW2, the independent witness,

also corroborated with the evidence of PW1 and PW3 in all

material aspects. Having reappreciated the evidence on Crl.A.No.28 OF 2019

record, I am satisfied that the prosecution could

establish that the appellant possessed two ampules of

2 ml each of buprenophine injection on 13.04.2013 at

about 8.00 p.m., without any authority in

contravention of the provisions of the NDPS ACT. In the

said circumstances, the court below was fully justified

in convicting the appellant under Section 8(c) read

with Section 22(b) of the NDPS Act. Having gone

through the relevant inputs, I find no reason to

interfere with the conviction passed by the court

below under Section 8(c) read with Section 22(b) of

the NDPS Act.

The learned State Brief has pleaded for leniency in

the matter of sentence. The contraband possessed by

the appellant was buprenorphine. The small quantity Crl.A.No.28 OF 2019

of the said contraband is less than 1 gm. Above 20gm

of the said contraband is commercial quantity. The

quantity possessed by the appellant was

approximately equivalent to 4 gm. Therefore, the

quantity of contraband possessed by the appellant was

intermediate quantity. No previous conviction was

proved against the appellant. Considering the facts

and circumstances of the case, including the

submission of the learned State Brief, I am of the view

that the sentence awarded by the court below can be

modified and reduced to rigorous imprisonment for

two years and six months and a fine of Rs.25,000/-

(Rupees Twenty Five Thousand Only) with a default

clause for rigorous imprisonment for four months

under Section 8(c) read with Section 22(b) of the NDPS Crl.A.No.28 OF 2019

Act to meet the ends of justice. It is ordered

accordingly. The appellant is entitled to set off for the

period of his detention in connection with this case

under Section 428 Cr.P.C.

In the result, this Criminal Appeal stands

dismissed with the above modification in sentence.

The Registry will transmit the records forthwith to

the court below for the follow up action.

Sd/-B.SUDHEENDRA KUMAR JUDGE RK/04.02.2021