Abdul Samad,S/O Andru vs State Of Kerala
2021 Latest Caselaw 20432 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MR. JUSTICE GOPINATH P.
       FRIDAY, THE 1ST DAY OF OCTOBER 2021 / 9TH ASWINA, 1943
                          CRL.A NO. 89 OF 2006
AGAINST THE JUDGMENT IN SC 8/2005 OF SPECIAL COURT (NDPS ACT CASES),
                          VADAKARA, KOZHIKODE
APPELLANT/ACCUSED:

           ABDUL SAMAD,S/O ANDRU,
           KULANGARATH HOUSE, THIRUVALLUR.

           BY ADV R.BINDU (SASTHAMANGALAM)



RESPONDENT/COMPLAINANT:

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

           BY ADVS.
           PUBLIC PROSECUTOR
           PUBLIC PROSECUTOR



           SRI. SANGEETH RAJ PUBLIC PROSECUTOR




     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 01.10.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A NO. 89 OF 2006                        2



                                   JUDGMENT

This appeal has been filed challenging the conviction and sentence

imposed on the appellant/accused in S.C. No.8/2005 on the file of Court of

Special Judge (NDPS Act Cases), Vadkara, in a prosecution under Section 20(b)

(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985

(hereinafter referred to as 'the NDPS Act').

2. Gist of the prosecution case is that, at about 03.00 pm, on

21.06.2004, the appellant/accused was found in front of a building housing

Maheswara Automobiles in Perambra panchayat bus stand, possessing 1.5

kilograms of ganja, meant for sale. The appellant/accused was arrested on the

spot and the ganja was seized by the Sub-Inspector of Police under a seizure

mahazar.

3. Following investigation of the case, a final report was filed before

the Special Judge for NDPS Act cases, Vadakara. After hearing the prosecution

and the defence, charges were framed under the aforesaid provisions of the

NDPS Act, to which the appellant/accused pleaded not guilty. Prosecution

examined seven witnesses and marked Exts.P1 to P11 and identified the

material objects as MOs 1 to 4. On the closure of prosecution evidence,

appellant/accused was questioned under Section 313 Cr.PC. He denied all

incriminating materials appearing against him and also submitted a written

statement stating that the ganja had not been seized from his possession and a

false case had been registered against him. The appellant/accused put forward

a case on the basis of a newspaper report that ganja had been seized from a

child in the premises of the Permabra panchayat bus stand and that the

appellant/accused was falsely implicated. The local correspondent of the

Madhyamam daily in which the news item appeared was examined on the side

of the defence as DW1 and the news item in question was marked as Ext.D1.

4. On an appreciation of the evidence, the learned Judge came to the

conclusion that the prosecution has succeeded in establishing the guilt of the

appellant/accused and therefore, convicted him and sentenced him to undergo

rigorous imprisonment for 30 months and to pay a fine of Rs.10,000/- (Rupees

ten thousand only) and in default of payment of fine, to undergo rigorous

imprisonment for a further period of six months.

5. Learned counsel appearing for the appellant/accused would

contend that the very arrest of the appellant/accused is doubtful and suspicious

inasmuch as Ext.P4 arrest memo does not contain the date, time and place of

arrest. He submits that the witnesses to the arrest memo and seizure memo

have turned hostile and did not support the prosecution case. He submits that

going by the judgments of this Court in Ramankutty V. Excise Inspector,

Chelannur Range [2013(3) KHC 308], Rafeeque V. Sub Inspector of

Police, Kunnamkulam police station and Another [2020 (3) KHC 715],

Mini V. State of Kerala [2020 KHC 5025] Bhaskaran K. State of

Kerala and Another [2020 KHC 5296 and Bahadur Singh V. State of

Madhya Pradesh and Another [2002 KHC 1106] when the arrest memo is

defective, the entire prosecution case must fail. He also submits that there was

a delay in producing the seized contraband before the court inasmuch as the

seized contraband was seen produced before the court only on 22.06.2004,

despite the fact that the contraband is alleged to have been seized from the

appellant/accused at about 03.00 pm on 21.06.2004. He submits that this

causes suspicion regarding the material seized, as there is no explanation

regarding the custody of the seized contraband from 03.00 pm on 21.06.2004

till the time it was produced in court the next day.

6. Learned Public Prosecutor would, however, contend that the mere

fact that the arrest memo did not contain the date, time and place of arrest is

not very material in the facts and circumstances of this case as

contemporaneous document, namely, Ext.P3 seizure mahazar clearly mentions

the date, time and place of arrest of the appellant/accused. He submits that

there is absolutely no delay in the production of the contraband before the court

inasmuch as the contraband article was produced before the court on the next

working day, following the seizure. He submits that the if the principle that the

contraband must be produced before the court without any delay is stretched

too far that would result in placing an unreasonable demand on the

investigating agency.

7. I have considered the contentions raised. The evidence tendered

by PWs 1 and 2, is quiet consistent with the prosecution case. It is true that the

independent witnesses who are examined as PWs 3 and 4 have turned hostile to

the prosecution and deposed that the ganja was actually seized from a boy and

not from the appellant/accused. The trial court, on an appreciation of the

evidence tendered by the detecting officer and the police official accompanying

him (PW2), found that the prosecution case was quiet believable and that the

independent witnesses are stating falsehood to help the appellant/accused.

Pertinently, these independent witnesses admitted their signatures on the

seizure mahazar. The court found no reason to disbelieve the version of PWs 1

and 2 and held that the minor inconsistencies did not render their evidence

unreliable in any manner. The court found that the definite and consistent

evidence given by the official witnesses is sufficient to establish the guilt of the

appellant/accused. This Court does not find any reason to upset the said finding

of the learned trial judge.

8. Coming to the contention of the learned counsel appearing for the

appellant/accused that the arrest itself must be held illegal, I am of the opinion

that the decisions cited at the bar by the learned counsel appearing for the

appellant/accused, do not support his case. It is true that those decisions fall

that where the arrest itself is found to be illegal, the prosecution must fail.

However, in the facts of the present case, though Ext.P4 arrest memo does not

mention the date, time and place of arrest, this fact is well documented by

Ext.P3 seizure mahazar. Both Exts.P3 and P4 were produced before the court

on 22.06.2004, i.e, the very next day after the incident. When there are

contemporaneous documents which establish the fact of arrest at a particular

date, and at a particular place and at a particular time, the mere fact that these

details were not entered in Ext.P3 arrest memo, does not, in my opinion, render

the arrest invalid in any manner. That apart, the brother of the

appellant/accused was intimated of the arrest, immediately after the

appellant/accused was arrested. There is no evidence to suggest that this was

not done. Therefore, I am not inclined to hold that the failure to mention the

place, date and time of arrest in Ext.P3 renders the prosecution defective.

9. Coming to the question of delay in producing the contraband

before the court, the seizure itself was at 03.00 pm on 21.06.2004. Admittedly,

the contraband was properly sealed, samples were taken and the contraband

was produced before the court on the very next day, i.e, on 22.06.2004.

Though, technically it would be argued that the contraband could have been

produced before the court on the same day (21.06.2004), I am of the view that

the failure to do so does not cast any doubt on the prosecution case as the

contraband was produced on the very next day, i.e, on 22.06.2004. I am

therefore on the view that the conviction of the appellant/accused for the

offence charged is justified.

10. Learned counsel appearing for the appellant/accused would then

submit that the quantity seized from the appellant/accused was only an

intermediate quantity and not a commercial quantity. He submits that the

appellant/accused is already 50 years old and the incident occurred more than

16 years ago. He therefore prays for some leniency in the sentence imposed on

the appellant/accused. Taking into account the overall facts and circumstances

of the case, I am of the view that the interest of justice will be met if the

appellant/accused is sentenced to one year of rigorous imprisonment, instead

of the 30 months rigorous imprisonment imposed by the trial court. I am also

of the view that the fine amount can be enhanced to Rs.25,000/- (Rupees

twenty five thousand only), instead of Rs.10,000/-.

11. Accordingly, the sentence on the appellant/accused is modified by

sentencing the appellant/accused to rigorous imprisonment for a period of one

year for the offence under Section 20(b)(ii)(B)of the NDPS Act and to pay a fine

of Rs.25,000/- (Rupees twenty five thousand only) and in default of payment of

fine, to undergo rigorous imprisonment for a further period of three months.

The appeal is therefore allowed in-part in the manner indicated above, by

confirming the conviction of the appellant and modifying the sentence. Set off

as permissible under law under Section 428 Cr.P.C will be allowed.

Sd/-

GOPINATH P., JUDGE ajt