Susheel Sarkar vs State Of Kerala
2021 Latest Caselaw 23617 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
             THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
    TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943
                          CRL.A NO. 976 OF 2015
      [CRIME NO.1049/2014 OF Thalassery Police Station, Kannur]
 [AGAINST THE JUDGMENT DATED 21.08.2015 IN SC NO.73/2014 ON THE FILE
    OF THE COURT OF THE SPECIAL JUDGE (NDPS ACT CASES), VATAKARA]
APPELLANT/ACCUSED:

           SUSHEEL SARKAR
           AGED 27 YEARS
           S/O. JEEBANANDA SARKAR, KURUSHUMARI, BAYARTHANA, KUCH
           BIHAR, WEST BENGAL.

           BY ADV SRI.M.SHYJU



RESPONDENT/COMPLAINANT:

           STATE OF KERALA
           REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
           ERNAKULAM - 682 031.

           BY SRI.SUDHEER GOPALAKRISHNAN, PP


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.11.2021,
THE COURT ON 30.11.2021 DELIVERED THE FOLLOWING:
 Crl.Appeal No.976 of 2015                 2

                                    JUDGMENT

The appellant is the sole accused in

S.C.No.73/2014 on the file of the Court of

Special Judge (NDPS Act cases), Vatakara. The

petitioner stands convicted for the offence under

Section 20(b)(ii)(B) of Narcotic Drugs and

Psychotropic Substances Act, 1985 (for short,

NDPS Act) and after the trial, he was sentenced

to undergo rigorous imprisonment for four years

and to pay a fine of Rs.40,000/- with a default

sentence to undergo rigorous imprisonment for six

months.

2. The prosecution case against the

petitioner is as follows:

On 20.7.2014 at 9.10 p.m. in Thalassery

Taluk, Thiruvangad amsom desom, on a concrete

road leading to Thalassery Railway Station

platform No.1, the appellant was found in

possession of 5.100 kg ganja which was kept by

him for the purpose of sale in contravention of

the provisions of the NDPS Act. The appellant was

apprehended by PW3, Sub Inspector of Police along

with a police party including PW4 while they were

engaged in law and order duty in the aforesaid

area.

3. To establish the prosecution case, Pws.1

to 6 were examined, Exts.P1 to P13 were marked

and Mos.1 to 8 were identified. After prosecution

evidence, incriminating materials brought out

were put to the appellant/accused while he was

examined under Section 313 of the Code of

Criminal Procedure (Cr.PC) and the appellant

denied all the said allegations by pleading

innocence. No defence evidence was adduced. After

the trial, the Tribunal found the appellant

guilty and imposed with a sentence as mentioned

above. This appeal is filed against the said

conviction and sentence.

4. Even though, the appeal came up for

hearing on 11.10.2021, 26.10.2021, and

19.11.2021, there was no representation for the

appellant. Today also when the matter was taken

up, there was no representation. In such

circumstances, this appeal is considered after

hearing the learned Public Prosecutor.

5. Heard Sri. Sudheer Gopalakrishnan, the

learned Public Prosecutor for the respondent.

6. The learned Public Prosecutor would

contend that, the grounds raised by the appellant

in the appeal memorandum are not legally

sustainable. It was pointed out by the learned

Public Prosecutor that the main contention put

forward by the appellant is with regard to the

non compliance of mandatory provision under

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

None of the said provisions and the procedure

contemplated therein would attract in this case,

as the offence was detected in a public place and

it was a chance recovery without any prior

information. Similarly, the contraband article

was detected not from the body of the appellant,

on the other hand, it was from a cannas kept by

the appellant, so non compliance of section 50

also does not arise. Hence, the learned Public

Prosecutor prays for dismissal of the appeal.

7. Crime No.1049/2014 of Thalassery Police

Station was registered on the basis of search and

seizure conducted by PW3, the detecting

officer/Sub Inspector of Police, Thalassery in

the presence of PW4, a Senior Civil Police

Officer on 20.7.2014 at 9.10 p.m. The evidence of

PW3 would indicate that on that day and time,

when they were on patrol duty as part of

maintenance of law and order and when they

reached near the railway station, Thalassery, the

appellant was found coming with a cannas and as

his behaviour created some suspicion, he was

intercepted and interrogated by the police. As

PW3 wanted to conduct a search of the body of the

accused, the accused was informed of his right to

have his body search in the presence of a

Gazetted Officer to which the appellant answered

that it is not necessary. Accordingly, his body

was searched but no contraband articles were

found. Thereafter, on examination, it was found

that, 1 packet contained ganja of 2.300 kg and

the another packet contained 2.600 kg. of ganja

were found tied on the plastic cannas which he

was carrying. After taking samples of 100 gm each

from both the said packets, they were separately

taken into custody by rapping it on a brown paper

and sealed with the labels containing the

signature of accused, witnesses and PW3. The

aforesaid packets assigned with serial Nos.P1 and

P2 and were marked as MO1 and MO2 in evidence.

The appellant was arrested and the samples were

sent for chemical analysis.

8. The evidence of PW3 is supported by the

evidence of PW4,the civil police officer who

accompanied PW3 and was a party to the entire

transactions as mentioned above.

9. One of the main contentions put forward by

the appellant in the memorandum of appeal is that

even though the search was made on the basis of

Ext.P5 seizure mahazar, in the presence of

independent witnesses, none of the said witnesses

were examined by the prosecution. In such

circumstances, it was contended that, the

evidence regarding the seizure cannot be acted

upon as the only evidence available is that of

PWs.3 and 4. However, the aforesaid contention is

not legally sustainable. It is discernible from

the records that even though repeated summons

were issued to the aforesaid witnesses, the said

witnesses could not be traced out and

accordingly, the prosecution was compelled to

give up the examination of the said witnesses. It

is a well settled position of law that merely for

the reason that independent witnesses were not

examined for search and seizure, the evidence of

official witnesses cannot be discarded. If the

evidence of the official witnesses does not

contain any discrepancies which makes them

untrustworthy, it can be relied upon even in the

absence of any independent evidence. In this

case, when the evidence of PWs.3 and 4 is

considered, it can be seen that both their

evidences are consistent with each other and

there are no material inconsistency or

discrepancy in between. Even though both of them

were subjected to cross examination, their

credibility could not be shattered. In such

circumstances, I do not find any merit in the

contention of the appellant in this regard.

10. The next contention is with regard to the

non compliance of Section 42 of the NDPS Act. The

aforesaid provision contemplates that when an

information is received by the officer as to the

commission of an offence under the Act, he has to

take down the said information in writing and the

same shall be forwarded to the immediate official

superior along with the grounds for his belief

that a search warrant or authorisation cannot be

obtained without affording opportunity for the

concealment of evidence or facility for the

escape of the offender. In this case, however,

the aforesaid provision would not come into play.

This is because, the procedure contemplated under

Section 42 of the NDPS Act is for entry, search

and seizure in a building, conveyance or in an

enclosed place. In this case, search and seizure

was conducted in a public and open space. Apart

from the above, the detection of the contraband

article in this case was not on the basis of any

prior information. There are ample evidence

indicating that it was a chance recovery by the

detecting officer and the police party while they

were on patrol duty. The provision which comes

into play in these circumstances is Section 43 of

the NDPS Act which does not contain any mandate

for following the procedure as mentioned above.

In such circumstances, I do not find any merit in

the contention that there are violation of

mandatory procedure as contemplated under Section

42 of the NDPS Act

11. Further contention is with regard to the

non compliance of Section 50 of the NDPS Act. In

my view, the aforesaid provision is not

applicable in this case. This is particularly

because the contraband articles were recovered

from a cannas which the appellant was found to be

carrying at the relevant time. No contraband

articles were recovered from the body of the

appellant. Even if it is assumed that the

contraband articles were seized from the body,

there is evidence of PW3 which is supported by

PW4 to the effect that before conducting the body

search of the appellant, he was informed of his

right to have his body search in the presence of

a Gazetted Officer. However, the appellant had

chosen not to exercise the said right and

permitted PW3 to have his body searched by him.

In the above circumstances, the procedure

contemplated under Section 50 of the NDPS Act was

not at all necessary and hence no case of non

compliance of the said provision arises.

12. Thus when all the aforesaid materials are

considered, I do not find any grounds which

necessitates any interference in the finding of

guilt entered into by the Sessions Court. The

sentence imposed upon such conviction is also

commensurate with the gravity of the offence to

which the appellant was found guilty.

Accordingly, I do not find any merit in this

appeal. Thus it is dismissed by confirming the

conviction and sentence imposed by Court of

Special Judge (NDPS Act cases), Vatakara on

21.08.2015 in S.C.No.73/2014.

                                               Sd/-    ZIYAD RAHMAN A.A.
                                                            JUDGE

pkk