Abdul Rahim N V vs The State Represented By The ...
2021 Latest Caselaw 8443 Ker

Crl.Appeal No.271/2017
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              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

               THE HONOURABLE MR. JUSTICE SUNIL THOMAS

     MONDAY, THE 15TH DAY OF MARCH 2021 / 24TH PHALGUNA, 1942

                         CRL.A.No.271 OF 2017

  AGAINST THE ORDER/JUDGMENT IN SC 54/2016 DATED 21-02-2017 OF
  ADDITIONAL DISTRICT COURT & SESSIONS COURT - VII, ERNAKULAM


APPELLANT/ACCUSED:

               ABDUL RAHIM N V
               S/O.N.A.YOOSEF, NAKRAYATH HOUSE,MANNAMANGALAM PO,
               THRISSUR-680 014.

               BY ADVS.
               SRI.SALIM V.S.
               SRI.H.NUJUMUDEEN

RESPONDENT/COMPLAINANT:

               THE STATE REPRESENTED BY THE INTELLIGENCE OFFICER
               NCB SUB ZONE, KOCHI,THROUGH THE SPECIAL PUBLIC
               PROSECUTOR,NCB, HIGH COURT OF KERALA,
               ERNAKULAM,PIN-682031.

               R1 BY ADV. SHRI.M.V.S.NAMPOOTHIRY

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-12-
2020, THE COURT ON 15-3-2021 DELIVERED THE FOLLOWING:
 Crl.Appeal No.271/2017
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                                JUDGMENT

Dated this the 15th day of March 2021

On 6/7/2015, at 10a.m., PW1, the intelligence officer of NCB South

Zone Unit, Ernakulam got a reliable telephonic information that, one Abdul

Rahim and two other accomplices were transporting about two kgs of

heroine. It was also conveyed that, he will reach Alwaye railway station by

train on that day. The physical features of Abdul Rehim was also

disclosed. This was recorded by PW1 verbatim and was read over to the

source. The matter was immediately reported to the Superintendent of

Narcotic Control Bureau, south zone, Headquarters, Chennai unit over

telephone, since his immediate superior was on leave. On the direction of

the superintendent, a team was constituted and they rushed to the railway

station and reached the railway station at 11.15 a.m. They solicited the

assistance of two independent witnesses, who were present there. At

about 11.55 a.m.,one person corresponding to the features conveyed by

the informant, came outside the railway station. He was intercepted by

PW1 and team. They disclosed their identity and confirmed the identity of

that person. He was informed that, PW1 had a reasonable suspicion that, Crl.Appeal No.271/2017

that person was carrying contraband and the intention to conduct a

personal search of his body was conveyed. He was also informed about

his right under section 50 of the NDPS Act. Section 50 notice was also

issued to him. He refused to accept that and suggested that, PW1 himself

may conduct the search. Thereafter, he was shifted to the railway

protection force office. Initial formalities were complied with. Thereupon,

the above person confessed that he was carrying heroin and a bag was

handed over. From a secret chamber inside the bag, PW1 recovered a

packet of heroine which weighed 1.87 kgs. Using the instrument kept in

the kit, it was tested and confirmed to be heroine. It was opened, two

samples of each five grams were separated, packed, sealed and affixed

with labels. Thereafter, the body of the accused was searched. From the

body of the accused cash, air tickets of accused to Delhi and return, and

one second class train ticket from Thrissur to Aluva were recovered.

Thereafter, he was taken to the office of the Narcotic Control Bureau office

and was served with notice for recording his section 67 NDPS Act

statement. He was informed that the statement, if voluntarily given by him

was likely to be used against him. After recording the statement, he was

arrested on 7/7/2015. He was produced before the magistrate on the

same day along with section 67 statement, report and remanded. Crl.Appeal No.271/2017

2. Investigation was taken over by PW6, who questioned the

witnesses, recorded their statement and laid the final report. Charges were

framed against the accused by the trial court for offences punishable under

section 21(c) and 23( c) of the NDPS Act. The accused denied the

charges and pleaded trial. On the side of the prosecution, PWs.1 to PW6

were examined and Exts. P1 to P23 were marked. MOs were also

identified. There was no defence evidence. The court below, on the basis

of the available materials, found the accused guilty, convicted and

sentenced to undergo ten years imprisonment with a fine of Rs.1,00,000/-

each for each of the offence found against him, under section 21 (c) and

section 23 (c) of the NDPS Act. Aggrieved by the above conviction and

sentence, the accused has preferred this appeal.

3. Heard the learned counsel for the appellant and the learned

special prosecutor for the Narcotic Control Bureau. Examined the records.

4. Vehemently assailing the conviction, the learned counsel for the

accused contended that prosecution failed to establish that the contraband

items were recovered from the conscious possession of the accused. It

was contended that the search, recovery and all other processes that

followed were improper and highly suspicious. The evidence of PW1 and

PW2 were not sufficient to establish the guilt of the accused. It was also

contended that, there were several infirmities in the evidence tendered by Crl.Appeal No.271/2017

the prosecution. It was also contended that, all the documents stated to be

prepared at the time of recovery contained OR number, which is assigned

only after crime is registered. Hence, there was no chance of OR number

being available at the spot, when those documents were prepared along

with the seizure. It was also contended by the learned counsel that,

section 42(2) and section 57 of the NDPS Act were not complied with.

There was no evidence to show that the report sent under section 50(6)

was received by the superior officer. It was also contended that, Sections

21(c) and 23(c) would be attracted only if any act is done in contravention

of the statutory provision. No materials were produced to show that

accused had done anything in contravention of the statutory provision.

5. To establish that the accused was intercepted and the recovery

was effected from his possession, PW 1 and PW 2 were examined. PW1

gave evidence in conformity with the prosecution case. He deposed about

the details of information which he had received. He asserted that, on

receipt of the information, it was recorded and conveyed to his superior

officer. That was recorded on Ext.P1 itself. He gave oral evidence touching

on the interception, search, seizure separation of samples, packing and

labeling. PW1 gave meticulous details of the entire process, specifically

touching the seizure and recovery. He also stated that, after cautioning the

accused, his voluntary statement under section 67 of the NDPS act was Crl.Appeal No.271/2017

recorded. Thereafter, the accused was arrested

6. Ext.P2 is the Mahazar dated 6/7/2015 which is a

contemporaneous document. It was prepared at the time of search and

seizure. It is seen signed by persons who were present including the

independent witnesses. A reference to oral testimony of PW1 shows that,

it is completely in consonance with the meticulous details narrated in

Ext.P2 mahazar. Ext.P5 is the arrest memo which is also a

contemporaneous document. The arrest memo is dated 6/7/2015 and it

bears the signature of the accused. It is also seen that samples were

taken, wrapped and sealed. They were affixed with labels.

7. Assailing the genuineness of the labels and the

contemporaneous documents, learned counsel for the appellant contended

that, they were prepared at a later stage which were antedated and ante-

timed. To support this, the learned counsel for the appellant contended

that, all those documents referred to the OR number.. It was contended by

the learned counsel for the appellant that, if those documents were

contemporaneously prepared, there was no chance of OR number being

present, since OR number is assigned at a later stage, after they reach

the NCB office and crime is registered. In fact, PW1 was confronted with

this at the time cross examination. He explained that OR number is

assigned sequentially and the moment information is received, the OR Crl.Appeal No.271/2017

number is identified. Ext.P6 is the arrest intimation and Ext.P7 is the

remand report. Ext.P8 is the occurrence report and Ext.P9 is the list of

properties. These corroborate prosecution case in relation the subsequent

incidents.

8. Ext.P13 is the list evidencing the items which were recovered from

the person of the accused. PW2 is an independent witness, who had

completely supported the prosecution case. He deposed in confirmity

with the evidence tendered by PW1, touching upon interception, recovery

and sampling. He identified his signature in Ext.P2 as well as in the MOs.

The version of PW2 is completely in consonance with the version of PW1

as well as the details mentioned in Ext.P2.

9. It seems that the contraband items were produced in the court on

13/7/2015. Ext.P15 is the godown receipt evidencing safe deposit of the

few of the above items. MOs- 1 to 10 are the various items recovered.

MO10 is the railway ticket recovered from the possession of the accused

which is dated 6/7/2015 and evidence the travel from Thrissur to Alwaye .

The presence of the accused at the Alwaye station on the relevant day is

confirmed by the recovery of the above railway ticket, coupled with oral

testimony of PW1 and PW2.

10. The evidence affirm that the samples were taken, separated,

packed, sealed and labeled at the spot. It was presented before the court Crl.Appeal No.271/2017

without much delay. From the court it was forwarded to the chemical

analysis lab. Ext.P23 is the chemical analysis report. It shows that, heroin

was detected in the samples. There is nothing on record to show that there

was any interpolation in the sample while on transit from the court to the

lab. Evidently, these materials confirm that the samples which were

recovered and separated from the contraband contained heroine and

thereby the prosecution has succeeded in establishing that the item

recovered from the accused was narcotic drug.

11. The cross examination of PW1 and PW2 show that, apart from

making general suggestive questions, no contradiction was brought out in

the evidence tendered by PW1 and PW2. There is nothing on record to

show that the evidence of both the witnesses are unreliable and

unbelievable. The accused was not able to cast any doubt on the versions

spoken by PW1 and PW2.

12. One specific contention of the learned counsel for the petitioner

was that, section 42(2) of the Act was violated. PW1 has referred to the

receipt of information which was recorded on Ext.P1. Ext.P1(a) is the

report which he himself had endorsed stating that it was conveyed to the

superior officer. This version, evident from testimony of PW1 coupled with

Ext.P1(a) is fully corroborated by PW3 who admitted that, he was informed

by PW1 about the incident. Hence, there is nothing to hold that there was Crl.Appeal No.271/2017

infraction of section 42(2) of the Act.

13. It was contended by the learned counsel for the appellant that,

the prosecution completely relied on the statement stated to be given by

the accused under section 67 of the NDPS Act. It was contended that,

accused was issued with summons on 6/7/2018 which is Ext.P3. The

statement was recorded at the NCB office. It was contended that, it was

an involuntary statement and the prosecution is completely relying on the

statement given under section 67 of the Act, which cannot be admitted in

evidence.

14. It is pertinent to note that PW1 has stated that Ext.P4 was

given by the accused in his own handwriting. He also asserted that it

was given voluntarily. The fact that Ext.P4 was written in the handwriting of

the accused is not disputed. There is absolutely nothing on record to show

that there is any material which cast doubt on the recording under section

67 of the NDPS Act.

15. It is pertinent to note that PW1 has stated that Ext.P4 was given

by the accused in his own handwriting. Further, the prosecution is not

completely relying on the statement under section 67 to establish the

prosecution case. But they rely on other evidence, including the oral

testimonies of PW1 and PW2. Hence, there is no breach of Section 57 of

NDPS Act.

Crl.Appeal No.271/2017

16. The accused has no case that there was violation of section 52

of the Act. Even otherwise , PW1 and PW2 have specifically deposed

about the compliance of section 50 of the Act. However, the accused

challenged the prosecution case by contending that there was breach of

section 57 of the NDPS Act. It is seen that, Ext.P1 information is dated

6/7/2015. Ext.P11 is the report under section 57. PW1 in his statement

deposed that it was sent through messenger. This is corroborated by

Ext.P3 also.

17. On an evaluation of the entire materials it is clear that,

prosecution has succeeded in establishing that the contraband items were

recovered from the possession of the accused. There is absolutely

nothing on record to doubt the prosecution case. There is also nothing on

record to show that any of the mandatory formalities under the NDPS Act

was violated. Accordingly, I find that the prosecution has completely

succeeded in establishing the case and the court below has correctly

arrived at a valid conclusion that accused has committed offence under

NDPS Act. Regarding the sentence, the court has taken note of the fact

that the commercial quantity of heroin was recovered the accused. The

Court has also evaluated the seriousness of the offence involved. It seems

that the accused had gone to Delhi and Madura and from where, it was

brought. Definitely, the conduct of the accused needs to be seriously taken Crl.Appeal No.271/2017

note of. Having considered this, I find no reason to take lenient view

regarding the sentence . The sentence imposed by the court on both the

counts are liable to be sustained.

In the result, appeal fails and is dismissed confirming the conviction

and sentence.

Sd/-

                                                SUNIL THOMAS

dpk                                                 JUDGE