Shaj @ Urukku Shaji vs State Of Kerala
2021 Latest Caselaw 21854 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
            THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
   WEDNESDAY, THE 3RD DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943
                       CRL.A NO. 2210 OF 2007
AGAINST THE JUDGMENT IN SC 306/2005 OF THE IV ADDITIONAL SESSIONS
                          JUDGE, ERNAKULAM
APPELLANT/ACCUSED:

            SHAJI @ URUKKU SHAJI,
            S/O. SUKUMARAN, AGED 41 YEARS, KANDATHIL PARAMBU
            VEEDU,, MLA ROAD, KACHERIPPADY, PALLURUTHY VILLAGE,,
            ERNAKULAM.


            BY ADV SANIL KUMAR


RESPONDENT/COMPLAINANT:

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


            BY PUBLIC PROSECUTOR SRI.SANAL P.RAJ


     THIS   CRIMINAL   APPEAL    HAVING    COME   UP   FOR   ADMISSION   ON
03.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A NO. 2210 OF 2007                 2




                               JUDGMENT

Dated this the 3rd day of November, 2021

This appeal has been filed by the accused in S.C.No.306/2005

on the file of the IV Additional Sessions Judge, Ernakulam against the

judgment dated 31.10.2007 convicting him under Section 22(a) of

the Narcotic Drugs and Psychotropic Substance Act (for short 'the

NDPS Act')

2. The prosecution case in short in that on 3.4.1998 at about

8.30 am., PW5, the Sub Inspector of Police, Kochi Kasaba Police

Station received a telephonic information that a person wearing blue

jeans and dark shirt was engaged in selling psychotropic substance

in a deserted compound near to the Nambiapuram Cross Road. On

receiving the said information, PW5 recorded the same in the

general diary kept in the Police Station and gave information in

compliance of Section 42 of the NDPS Act to the superior officer.

Thereafter, PW5 along with PW4, the Police Constable Palluruty

Circle Inspector Office, went to the place of occurrence. When they

reached there, the accused was standing at the compound. When

the accused saw the police party, he tried to escape by jumping the

compound wall of the property. But PWs 4 and 5 detained him.

When questioned, the accused did not give any satisfactory reply.

Since PW5 suspected that the accused was carrying narcotic

substance, PW5 asked the accused whether he required the

presence of a gazetted officer or Magistrate to search his body.

Even though the accused said 'no', PW5 prepared Ext.P1 letter

addressed to PW1, then Circle Inspector of Cochin Range, requesting

his presence at the scene of occurrence for the purpose of

conducting body search of the accused. PW1 arrived at the scene of

occurrence in his jeep and thereafter introduced himself to the

accused and about the proposed body search. Thereafter, PW5

conducted body search of the accused in the presence of PW1. On

body search, PW5 detected a newspaper wrapped up as a packet

kept hidden inside the right rear pocket of jeans worn by him. On

inspection, it was found to contain 5 ampules of Tidigesic injection,

containing chemical substance and Buprenorphine 2 ml strength of

injection solution along with a dispovan syringe. On further body

search, PW5 could find a five rupee currency note as well as a ten

rupee currency note in the pocket of the shirt worn by the accused.

PW5 seized those items, properly packed, labelled and sealed in the

presence of the witnesses. He also prepared Ext.P2 seizure

mahazar. Thereafter he along with the accused and seized

contraband substance went to the police Station and registered the

crime against the accused. Ext.P5 is the FIR. The seized contraband

substance was produced at the court on the same day itself. Ext.P7

is the list of property. The contraband substance was sent for

chemical analysis as per Ext.P9 report. PW6, took up the

investigation on 3.4.1998. After analysis, chemical analysis report

was received, which was marked as Ext.P9. CW18 completed the

investigation and filed final report at the court.

3. After hearing the prosecution and the defence, charge

was framed against the accused under Section 22(a) of the NDPS

Act. The charge was read over and explained to the accused, who

pleaded not guilty.

4. The prosecution examined Pws 1 to 6 and marked Exts.P1

to P10. MO1 to MO6 were identified. After closure of the

prosecution evidence, the accused was examined under Section 313

Cr.P.C. He denied all the incriminating circumstances brought

against him during evidence. He submitted that he is innocent.

After questioning the accused under Section 313 Cr.P.C, the court

below heard the learned Public Prosecutor as well as the learned

counsel for the accused under Section 232 of Cr.P.C. It was found

that the accused was not entitled to an order of acquittal at that

stage. The accused was called up on to enter on his defence. No

defence evidence was adduced.

5. Considering the evidence on record, the court below

found the accused guilty of the offence punishable under Section

22(a) of the NDPS Act and he was convicted for the said offence. The

accused was sentenced to undergo rigorous imprisonment for a

period of six months and to pay a fine of Rs.10,000/-, in default to

suffer rigorous imprisonment for a period of two months. Aggrieved

by the said conviction and sentence, the accused preferred this

appeal.

6. I have heard Sri.Sanil Kumar, the learned counsel for the

appellant and Sri.Sanal P.Raj, the learned Public Prosecutor.

7. The learned counsel appearing for the appellant

impeached the finding of the court below on appreciation of the

evidence and resultant finding as to the guilt. The learned counsel

submitted that PWs 1, 4 and 5, whose evidence were heavily relied

on by the court below, are official witnesses and only one

independent witness was examined by the prosecution. The learned

counsel further submitted that there is non compliance of Sections

42 and 50 of the NDPS Act. The counsel added that at any rate the

accused should have been extended the benefit of doubt.

8. The learned Public Prosecutor on the other hand,

supported the findings and verdict handed down by the court below

and argued that necessary ingredients of Section 22(a) of the NDPS

Act had been established and the prosecution has succeeded in

proving the case beyond reasonable doubt.

9. The prosecution mainly relied on the oral testimony of

Pws. 1, 2, 4 and 5 and Exts.P1, P2, P6, P7, P8, P9 and P10 to prove

the possession of the psychotropic substance by the accused and

arrest and seizure of the same. PW5, the detecting officer, deposed

that on 3.4.1998 at 8.15 am, he received a telephonic information

that the accused was indulged in selling ganja at a deserted

compound by the side of the cross road leading from MLA Road to

Nambiapuram in Palluruthy Village and on receiving the said

information, he recorded the same in the general diary kept in the

police station and gave information in compliance of Section 42 of

the NDPS Act to his immediate superior officer and he along with

PW4 proceeded to the place of occurrence and when they reached

there, the accused was standing at the compound and when saw the

police party, he tried to escape. He further deposed that he stopped

the accused and asked his name and address. When questioned,

the accused could not give satisfactory reply. He suspected that the

accused was carrying contraband substance and hence he told the

accused his right to have his body search in the presence of a

Magistrate or a gazette officer. Thereafter he gave information to

PW1 who came to the spot immediately. He further deposed that he

conducted the body search of the accused in the presence of PW1

and he could seize the contraband substance as well as the currency

notes. MO1 is the contraband substance. MO2 is the syringe and

MO5 series are currency notes. His evidence would further show

that MOs 1 and 2 were properly packed, labelled and sealed. MOs 3

and 4 are specimen seal. He has also prepared a scene mahazar,

which was marked as Ext.P2. PW5 further deposed that at 9.40

am., he arrested the accused. Thereafter he went to the Police

Station and crime was registered. Ext.P5 is the FIR. PWs 1 and 4

who were present through out along with PW5 gave evidence in tune

with the evidence given by PW5. Pws 1, 2, 4 and 5 identified the

material objects at the court. They also identified the accused.

Their evidence would clearly show that all the material objects were

properly packed, labelled and sealed. The signature of the witness

as well as the accused were also obtained. Ext.P10 chemical

examination report would clearly show that the seized material

objects forwarded to the Forensic Science Laboratory were in tact

and the parcel containing the MOs was sealed with impression of the

seal, corresponding to the seal impression forwarded as per the

forwarding note. The evidence of PWs 1, 4 and 5 gets corroboration

with the evidence of PW2 and independent witness. He is an

attestor of Ext.P1 mahazar. He clearly deposed about the arrest of

the accused, search and seizure of the contraband substance from

the accused. The search and seizure of the contraband substance

and the arrest of the accused were amply proved by the testimonies

of PWs 1, 2, 4 and 5. The defence has not been able to cause any

material dent to their evidence who credibly deposed in favour of the

prosecution.

10. The learned counsel for the appellant argued that there is

non compliance of Section 42 as well as Section 50 of the NDPS Act.

PW5, the detecting officer, deposed that he got information that the

accused was indulged in selling ganja at the place of occurrence

mentioned herein above and he recorded the information in the

general diary kept in the police station and he prepared a letter in

compliance of Section 42 of the NDPS Act and the same was sent to

the immediate police officer. Ext.P8 is the said letter. He has also

given another report to his superior officer, which has been marked

as Ext.P6. It will show that there is compliance of Section 42 of the

NDPS Act. That apart the requirements of Section 42 of the NDPS

Act will be attracted only to a case where the information relates to

the availability of narcotic drug or psychotropic substance in a

building, conveyance or enclosed place as distinct from their

availability in a public place which is covered by a separate section.

In Section 42 of the NDPS Act, there is no provision similar to that in

Section 42(2) of the Act which makes it obligatory for the officer who

receives information, to record the information and to send it to the

official superior. The aforesaid position makes it further clear that

Section 42(2) of the NDPS Act will be attracted only in respect of the

information relating to the availability of the contraband in a

building, conveyance or enclosed place. The facts of this case

discloses that the arrest and seizure was made in a compound near

to a public place and not in any building, conveyance or enclosed

place. Therefore, the case is covered by Section 42 of the NDPS Act,

which does not require information of any person to be taken down

in writing.

11. The next question is whether there is any violation of the

provision of Section 50 of the NDPS Act. The evidence of PWs 1, 2,

4, and 5 would show that PW5 prepared Ext.P1 letter and sent to

PW1 requesting his presence at the place of occurrence for

conducting body search of the accused. Thereafter, the body search

was conducted by PW5 after arrival of PW1. The evidence would

further show that the accused was apprised of his right to get the

body search conducted in the presence of a gazetted officer or

Magistrate. The learned counsel submitted that there is no evidence

on record to show that before conducting body search by PW5, PW1

conducted the body search of the accused. The said omission is not

at all material to vitiate the body search. Hence I am of the view

that there is compliance of Section 50 of the NDPS Act as well.

12. Ext.P10 is the chemical analysis report. It would show

that the parcel containing the material object sent to the forensic

science laboratory was sealed with the impression of the seal,

corresponding with the seal impression forwarded and the seals

were in tact. It will also show that the seized material objects tallied

with the seal impression forwarded. In Ext.P10 the details of the

chemical examination conducted have been clearly mentioned. In

Ext.P10 it is clearly stated that Buprenorphine was detected in each

ampoule analysed and each ampoule contained 0.3mg of

Buprenorphine per milliliter. Buprenorphine is a psychotropic

substance. Thus, the prosecution has established that the material

object seized is a psychotropic substance as defined under Section

20(a) of the NDPS Act.

For the reasons stated above, I uphold the finding of the court

below that the accused is guilty of the offence punishable under

Section 20(a) of the NDPS Act. The sentence awarded by the court

below also appears to be very reasonable. The appeal fails and it is

dismissed.

In the result, this Criminal Appeal is dismissed.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE ab