Karthik vs State Of Kerala
2021 Latest Caselaw 4806 Ker

             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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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