Kerala High Court

K.B.Rasheed vs State Of Kerala on 28 June, 2022

                                                            "C.R."




        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
 TUESDAY, THE 28TH DAY OF JUNE 2022 / 7TH ASHADHA, 1944
                    CRL.A NO. 317 OF 2008
AGAINST THE JUDGMENT DATED 30.01.2008 IN S.C.NO.5/2007 OF
        SPECIAL COURT (NDPS ACT CASES), VADAKARA
APPELLANT/ACCUSED

            K.B.RASHEED
            S/O BAPPU, KOLANGARA HOUSE, VEERAJPETTA,
            PERUMBADI CHECK POST, KUDAK.

            BY ADV SRI.SUNNY MATHEW


RESPONDENT/COMPLAINANT:

STATE OF KERALA CIRCLE INSPECTOR OF POLICE, KASABA POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

SMT MAYA M.N- P.P

THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 16.06.2022, THE COURT ON 28.06.2022 DELIVERED THE FOLLOWING:

Crl.Appeal No.317 of 2008

JUDGMENT "C.R."

The appellant is the accused in S.C.No.5 of 2007 on the

file of the Special Court (NDPS Act Cases), Vadakara. He was

convicted and sentenced for an offence punishable under

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

Substances Act, 1985 (for short "NDPS Act"). The sentence

imposed was rigorous imprisonment for a period of three

years and a fine of Rs.10,000/- with a default sentence of six

months. The said judgment of conviction and the order of

sentence are under challenge in this appeal filed under

Section 374(2) of the Code of Civil Procedure, 1973.

2. The allegations against the appellant are that at

about 4.35 p.m. on 01.01.2006, he was found in possession

of 1.250 kg. of Ganja near the Palayam bus stand at

Kozhikode, in violation of the provisions of the NDPS Act.

PW1, the Sub Inspector of Police, Kasaba Police Station, on

receipt of reliable information, reached the spot and caught

the appellant red-handed. On a search, 1.250 kg of Ganja was

found in his possession. After necessary formalities of

Crl.Appeal No.317 of 2008

preparation of seizure mahazar, sampling and sealing of both

samples and the contraband, PW1 arrested the appellant.

3. During the trial, PWs.1 to 6 were examined and

Exts.P1 to P12 were marked on the side of the prosecution.

Mos.1 to 3 were identified. In the examination of the appellant

under Section 313 (1)(b) of the Code, he took the stand that

he was innocent and the case was foisted against him. No

defence evidence was let in. The learned Special Judge did not

accept the contentions raised by the appellant that he was

innocent and evidence was insufficient to find him guilty.

Accordingly, the appellant was convicted and sentenced.

4. On 15.02.2008, this appeal was admitted and the

sentence imposed on the appellant was suspended. He was

therefore directed to be released on bail on the conditions

stipulated in that order.

5. Heard the learned counsel appearing for the

appellant and also the learned Public Prosecutor.

6. PW1 is the detecting officer. PW2 is a police

constable accompanied PW1 and witnessed the search of the

Crl.Appeal No.317 of 2008

person of the appellant and the seizure. PW1 while working as

the Sub Inspector of Police, Kasaba Police Station, got the

information that a person was selling Ganja near the bus stand

at Palayam, Kozhikode. After entering the information in the

General Diary and sending a report as stipulated in Section

42(2) of the NDPS Act, went to the spot. The appellant was

found near the Milma booth in the premises of the bus stand at

Palayam. He was informed about his right to have his person

searched in the presence of a Gazetted Officer or a Magistrate.

But he waived that right and endorsed so in Ext.P2 report.

Accordingly, PW1 himself searched the body of the appellant,

whereupon PW1 found Ganja in a plastic cover he was

carrying. PW1 prepared two samples of 50 grams each from

the said Ganja. The samples as well as the remaining Ganja in

the possession of the appellant were packed, labeled and

sealed before seizure as per Ext.P5 seizure mahazar. Recording

the arrest of the appellant, PW1 has prepared Ext.P3 arrest

memo and Ext.P4 inspection memo. In Ext.P3 as well as

Ext.P5, signatures of witnesses were taken.

Crl.Appeal No.317 of 2008

7. PW2 was the police constable who accompanied

PW1. PW2 also deposed regarding the details of the search

and seizure of the contraband and arrest of the accused. He is

also a signatory to Ext.P5 seizure mahazar. Besides PW2, PW4

was examined by the prosecution to prove the search, seizure

and arrest. He admitted that he had signed Ext.P5 at the

precincts of the Palayam bus stand where he was selling

newspaper. His signature in Ext.P3 as well as Ext.P5 is

admitted to be that of him. He, however, denied having seen

the arrest of the accused and the seizure of any object from

him. Although in regard to the arrest of the accused and

seizure of contraband, he did not support the case of the

prosecution, his evidence would support the evidence of

PWs.1 and 2 regarding the preparation of Exts.P3 and P5 at

the place of occurrence.

8. Coming back to the police station, PW1 registered

a crime as per Ext.P6, first information report. Without any

delay, the appellant was produced before the court. The

contraband and the samples were also produced before the

Crl.Appeal No.317 of 2008

court without any delay. Ext.P8 is the property list, as per

which the contraband and the samples were produced before

the court.

9. It is true that there is no independent evidence in

order to prove the arrest of the appellant and seizure of

contraband from his possession. But no inconsistency or

contradiction has been brought out in evidence of PWs.1 and

2 with reference to the said aspects. The documents referred

to above well corroborate the oral testimony of PWs.1 and 2.

In the said circumstances, there is no reason to disbelieve the

oral testimony of PWs.1 and 2 in court.

10. The Apex Court in Karamjit Singh v. State

(Delhi Administration) [ AIR 2003 SC 1311] held that,-

"The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each

Crl.Appeal No.317 of 2008

case and no principle of general application can be laid down."

11. In the light of the said principle laid down by the

Apex Court, there is no impediment for relying on the

evidence tendered by PWs.1 and 2 in court. I found that they

are credible witnesses. Therefore, even in the absence of any

independent evidence, they can be believed. It follows that

the prosecution has succeeded in proving that 1.250 kg. of

contraband was seized from the possession of the appellant,

as alleged by the prosecution.

12. The learned counsel appearing for the appellant

would contend that there has been a slew of procedural

irregularities, resulting in miscarriage of justice, and therefore,

the conviction of the appellant is unsustainable in law. It is

contended that the appellant is a person knowing only Kannada;

whereas, in none of the stages of the investigation or trial, he

was made to know about the proceedings by telling him in his

own language. It is true that in Ext.P2 his signature was taken,

but without his knowing its contents. During the proceedings in

the court also, he was not apprised of the contents of various

Crl.Appeal No.317 of 2008

proceedings by interpreting in his own language as provided in

Sections 279 and 281 of the Code. The learned counsel for the

appellant would point out that the appellant did not know any

language other than Kannada is a fact stated by PW1, and as

such the said lapses resulted in failure of justice, thereby

causing grave prejudice to the appellant.

13. The objective of Section 279 of the Code is to

safeguard the interest of an accused, who does not

understand the language in which the proceedings of the

court are being conducted. Section 273 of the Code insists

that unless otherwise expressly provided, all evidence taken

in the course of the trial of a case shall be recorded in the

presence of the accused. It is an invariable rule of the fair trial

guaranteed under Article 21 of the Constitution of India.

Section 278 of the Code further binds all the courts

conducting criminal trials to read over evidence recorded from

every witness to such witnesses in the presence of the accused,

unless he appears only through his pleader. A conjoint reading

of these provisions would show that the intention of the

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Legislature is that the process of recording evidence during a

criminal trial shall be done in the informed presence of the

accused. His mere presence, without understanding the

contents of the proceedings being taken place during the

course of the trial, does not satisfy the requirements of Section

273 of the Code or the principles of a fair trial as envisioned

under Article 21 of the Constitution of India.

14. Section 279 of the Code reads as follows:

"279. Interpretation of evidence to accused or his pleader.- (1) Whenever any evidence is given in a language not understood by the accused, and he is present in Court in person, it shall be interpreted to him in open Court in a language understood by him.

(2) If he appears by pleader and the evidence is given in a language other than the language of the Court, and not understood by the pleader, it shall be interpreted to such pleader in that language.

(3) When documents are put for the purpose of formal proof, it shall be in the discretion of the Court to interpret as much thereof as appears necessary."

15. This Section envisages that when the accused is

present in Court in person and evidence is given in any

language not understood by him, it shall be interpreted to him

Crl.Appeal No.317 of 2008

in open Court in a language understood by him. In the case of

oral evidence that is a mandatory requirement, but in the

case of documentary evidence, it is only discretionary. It is

clear from its reading that sub-sections (1) and (2) of Section

279 are mutually exclusive and even in a case the accused is

represented by a counsel it is mandatory that the evidence

shall be interpreted to the accused in a language known to

him if he does not know the language in which the evidence is

recorded.

16. Section 281(1) of the Code insists that whenever

the accused is examined by a magistrate or a court, he shall

make a memorandum of the substance of such examination in

the language of the Court. Section 281(4) mandates that such

record shall be shown or read to the accused, or, if he does

not understand the language in which it is written, shall be

interpreted to him in a language which he understands.

17. I have gone through the records of the case. It is

not certified in the statement of the appellant while recording

his plea to the charge framed against him or in the record of

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the examination of him under Section 313(1)(b) of the Code

that the matter was translated in Kannada to the appellant. In

none of the records of deposition of the witnesses also there

is no certification that the contents were interpreted to the

appellant in the language known to him or that he knew

Malayalam. It shows that at no stage of the trial an

interpreter was engaged and the evidence or other

statements were translated in the language of the appellant.

18. Now, what is the effect of such failure? The Apex

Court in Shivanarayan Kabra v. The State of Madras [AIR

1967 SC 986] considered a similar question. Sub-section (1)

of Section 361 of the Code, 1898, was the provision then in

existence. That provision is in pari materia to sub-section (1)

of Section 279 of the Code, 1973. The Apex Court has held as

follows:

"10. xxx xxx It was said that the evidence of the prosecution witnesses was given either in Tamil or in the English language and the appellant did not know either of the languages and so he was not able to take part in the trial. Mr. Naunit Lal contended that there was a breach of the requirement of Section 361(1) of the Criminal Procedure

Crl.Appeal No.317 of 2008

Code and the trial was vitiated. We do not think there is any substance in this argument. Even if it is assumed that the appellant did not know English or Tamil the violation of any of Section 361(1) of the Criminal Procedure Code was merely an irregularity and it is not shown in this case that there is any prejudice caused to the appellant on this account. It is pointed out by the Sessions Judge that the appellant did not make any objection at the time the evidence was given and it appears that he was represented by two eminent advocates - Sri.V.T. Rangaswami Iyenger and Sri R.Krishnamoorthy Iyer - in the trial court who knew both these languages and who would not have allowed the interest of the appellant to be jeopardized even to the smallest extent. In our opinion, the irregularity has not resulted in any injustice and the provisions of Section 537 of the Criminal Procedure Code are applicable to cure the defect."

19. In the light of the principle laid down by the Apex

Court in the aforesaid decision in a case where the accused is

defended by a counsel, non-compliance with Section 279(1) or

281(4) of the Code by itself would not render the prosecution

illegal. The non-compliance with Sections 279(1) or 281(4) of the

Code is an irregularity. Unless prejudice is caused to the accused,

that irregularity will not vitiate the trial altogether.

20. It is seen that at no stage of the trial, the counsel

Crl.Appeal No.317 of 2008

appearing for the appellant has pointed out before the Special

Court that the appellant did not know Malayalam in which

language the proceedings were recorded. When PW1

categorically deposed in court that the appellant knew

Kannada only, it cannot be inferred that he could understand

what was stated to him in Malayalam.

21. The appellant was represented by a lawyer through

out the proceedings in court. It is seen that he or his lawyer

never complained before the court about the requirement of

translation in Kannada. It is not pointed out by the learned

counsel for the appellant any instance of prejudice caused to

the appellant during the process of trial. As such, it may say

that there occurred no prejudice to him in the process of trial

and for such reason the prosecution need not fail. I, however,

hasten to state in the above context that non-observance of

Section 279(1), 279(2) or 281(4) of the Code may be an

irregularity only, but that is not a permission to violate it. I

may reiterate the view of the this Court in Chalam Sheikh v.

State of Kerala [2020 (4) KLT 164] as to what shall be the

Crl.Appeal No.317 of 2008

procedure to be followed by courts in a similar situation,

which is as follows:

"It is ideal and proper and always desirable to prepare the questions to be put to the accused in a language in which the accused is well versed. However, as in the present case, when the accused is a person who hails from another part of the country, it may not be possible to prepare the questions in the language which he knows. In such cases, the questions have to be prepared in Malayalam or English and an interpreter or translator has to be appointed by the Court to interpret or translate the questions put to the accused and the answers given by him. What is essential is that the accused shall clearly understand the questions put to him so that he could give proper answers. It is also necessary that the record shall clearly indicate the procedure adopted by the Court. The Magistrate or the Judge shall certify at the bottom of the record of examination that the questions were translated or interpreted and explained to the accused in the language of the accused. It would also be ideal and desirable that the interpreter or translator shall, instead of simply putting his signature in the record of examination of the accused, make an endorsement that he has truly and correctly interpreted or translated the questions and the answers."

Crl.Appeal No.317 of 2008

22. The same procedure shall invariably be followed

while recording plea of the accused to the charge. Similarly,

evidence of each witness examined in the case shall be

interpreted in the language understood by the accused and a

certification to that effect added in the record of deposition.

Whenever an accused who does not know the language in

which the aforesaid proceedings take place, the magistrate or

court is expected to follow the procedure mentioned above.

23. In this case, apart from such flaws during the

course of the trial, there occurred a glaring glitch while

recording the statement of the appellant in Ext.P2, the

statement of waiver under Section 50 of the NDPS Act.

Section 50 of the NDPS Act is a mandatory provision. Unless

the accused waived his right to be searched before a Gazetted

Officer or a Magistrate, it is the obligation of the searching

officer to have the search in the presence of either a Gazetted

Officer or a Magistrate. In Vijaysinh Chandubha Jadeja v.

State of Gujarat [(2011) 1 SCC 609], a Constitution Bench

of the Apex Court interpreted Section 50 thus:

Crl.Appeal No.317 of 2008

"The mandate of Section 50 is precise and clear, viz. if the person intended to be searched expresses to the authorised officer his desire to be taken to the nearest gazetted officer or the Magistrate, he cannot be searched till the gazetted officer or the Magistrate, as the case may be, directs the authorised officer to do so. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under Sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search."

24. PW1 deposed that the appellant was apprised of his

right and as he stated that the presence of Gazetted Officer or

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a Magistrate was unnecessary, he himself conducted the

search. At the same time, PW1 stated that the appellant knew

Kannada only. The appellant wrote in Ext.P2 also in Kannada.

In the absence of certification in Ext.P2 or a statement of PW1

in court that the appellant was communicated in Kannada

about his right under Section 50 of the NDPS Act, it can only

be said that there occurred non-compliance with the

provisions of Section 50. In the circumstances, conviction of

the appellant for the offence under Section 20(b)(ii)(B) of the