Sadik @ Poocha Sadik vs State Of Kerala
2021 Latest Caselaw 5184 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

       THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

  FRIDAY, THE 12TH DAY OF FEBRUARY 2021 / 23RD MAGHA,1942

                      CRL.A.No.1342 OF 2014

SC 639/2012 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT -
                      VIII, ERNAKULAM


APPELLANT/S:

               SADIK @ POOCHA SADIK
               AGED 45 YEARS
               S/O.BEERAN, CHAKKARAYIDAKK.

               BY ADVS.
               SRI.ALBERT V.JOHN
               SRI.DINNY THOMAS
               SRI.JAISHANKAR V.NAIR

RESPONDENT/S:

               STATE OF KERALA
               REPRESENTED BY THE S.I. OF POLICE, FORT KOCHI
               POLICE STATION, REPRESENTED BY THE PUBLIC
               PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM-
               682031.


OTHER PRESENT:

               SMT. M. K. PUSHPALATHA, SR.PP

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
12.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Case No. Crl.A 1342/2014


                                 -2-


                           JUDGMENT

The appellant is the accused in S.C. No.639 of 2012

on the files of the court below. The appellant was

convicted and sentenced by the court below under Section

20(b)(ii)(B) of the Narcotic Drugs and Psychotropic

Substances Act (for short 'the NDPS Act').

2. The prosecution allegation is that on 16.11.2012

at about 4.15 p.m., the appellant was found in possession

of 1.6 Kg of ganja, for the purpose of sale at a place on the

pathway leading to Panan Colony, Kalvathy, Fort Kochi, in

contravention of the provisions of the NDPS Act.

3. A report has been submitted by the learned

senior Public Prosecutor stating that the appellant had

already undergone the sentence awarded by the court

below. However, since this being an appeal against the Case No. Crl.A 1342/2014

conviction and sentence passed by the court below under

Section 20(b)(ii)(B) of the NDPS Act, I am inclined to

dispose of the appeal on merits.

4. The offence was detected by PW4. He arrested

the appellant and seized the contraband as per Ext.P3

Seizure Mahazar. The investigating was conducted by

PW5. After completing the investigation, the final report

was filed before the court below.

5. In trial, PW1 to PW5 were examined and

Exts.P1 to P20 were marked for the prosecution, besides

identifying MO1 to MO3.

6. Heard.

7. The evidence of PW4 is that on 16.11.2012, he

proceeded to the place of occurrence along with the police

party on getting prior information. When he reached the Case No. Crl.A 1342/2014

place of occurrence at about 4.15 pm, he saw the appellant

with a plastic kit in his hand. The appellant was

intercepted and he was informed of his right of being

searched in the presence of a Magistrate or a Gazetted

Officer. On the request of the appellant, PW4 made

request in this regard to PW5, who was the Circle

Inspector of Police, Fort Kochi Police Station. PW5

reached the place and searched the body of PW4.

Thereafter, PW4 searched the body of the appellant. The

plastic kit carried by the appellant contained 1.6 Kg of

ganja wrapped in a brown paper. Two samples, each of

150 ml each, had been taken from the contraband. The said

samples were sealed. PW5 also supported the evidence of

PW4 in all material aspects. PW3 was an independent

witness, who was examined to prove the occurrence. Case No. Crl.A 1342/2014

PW3 could identify the appellant. He also admitted his

signature in the documents. However, he denied to have

seen the recovery of the contraband from the appellant.

8. PW1 was the Village Officer, who prepared

Ext.P1 site plan. One of the two sample was forwarded to

the laboratory by PW4 as per Ext.P19 Forwarding Note.

PW2 was the Chemical Examiner, who issued Ext.P2

Certificate of Chemical Analysis, which would show that

the sample analysed in the laboratory was identified to be

ganja (Canabis Sativa).

9. The learned counsel for the appellant has argued

that since there was inordinate and unexplained delay in

producing the contraband and the sample before the court,

the appellant is entitled to benefit of doubt. It has been

further argued by the learned counsel for the appellant that Case No. Crl.A 1342/2014

since the seal affixed in the forwarding note was not the

seal affixed on the sample, the appellant is entitled to

benefit of doubt on that ground as well.

10. PW4 produced the contraband and the sample

before the court. PW4, in his re-examination, stated that

the contraband and the sample were produced before the

court only on 28.11.2012. PW4 stated during his cross-

examination that there was no specific reason for the delay

in producing the contraband and the sample before the

court. In this case, the seizure was effected on 16.11.2012.

Ext.P18 Property List would also show that the contraband

and the sample were produced before the court only on

28.11.2012. The delay as such, is not always fatal to the

prosecution case. However, if the delay is not explained,

there is no doubt that it is fatal to the prosecution case. In Case No. Crl.A 1342/2014

this case, there was long and unexplained delay from

16.11.2012 to 28.11.2012 in producing the contraband and

the sample before the court. Therefore, there cannot be any

guarantee that the sample produced before the court and

analysed in the laboratory was the sample drawn from the

contraband seized from the appellant. In the said

circumstances, the appellant is entitled to benefit of doubt.

11. PW4 stated that two samples were taken and

the said samples were sealed at the spot. The specimen seal

used to seal the samples was marked as Ext.P10. PW4

clearly stated that the specimen seal was the seal of the

Circle Inspector of Kochi Police Station. PW4 further

stated that the sample seal affixed on the forwarding note

was the seal of the Police Station. Ext.P19 is the

forwarding note, which contains two seals. The said seals Case No. Crl.A 1342/2014

are the seals of Kochi City Police. Thus, it is clear from the

evidence of PW4 and Exts.P10 and P19 that the sample

seal affixed on the samples was not forwarded to the

laboratory along with the forwarding note. In view of the

above, the prosecution could not establish the tamper-proof

despatch of the sample to the laboratory. Consequently, there

cannot be any guarantee that the sample analysed in the laboratory

was the sample drawn from the contraband seized from the

appellant and sealed by PW4. In view of the above, there is no

link evidence to connect the appellant with Ext.P2 Certificate of

Chemical Analysis. In the said circumstance also, the appellant is

entitled to benefit of doubt.

12. The above discussion would make it clear that

the prosecution could not establish the guilt of the appellant

beyond the shadow of doubt. In the said circumstances,

the conviction and sentenced passed by the court below Case No. Crl.A 1342/2014

under Section 20(b)(ii)(B) of the NDPS Act

cannot be sustained.

In the result, this Appeal stands allowed, setting

aside the conviction and sentence passed by the court

below and the appellant stands acquitted.

sd B. SUDHEENDRA KUMAR, JUDGE.

dl/