Kerala High Court
Raju vs State Of Kerala on 21 June, 2024
"C.R"
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
FRIDAY, THE 21ST DAY OF JUNE 2024 / 31ST JYAISHTA, 1946
CRL.A NO. 276 OF 2008
AGAINST THE JUDGMENT DATED 31-01-2008 IN SC NO.9 OF 2007 ON
THE FILE OF SPECIAL COURT (NDPS ACT CASES), VADAKARA.
APPELLANTS/ACCUSED NOS.1 AND 2 :
1 O.J.RAJU, S/O JOHNY, AGED 42,
URUMBIL HOUSE, PANIKKANKUTTY,
UDUMBANCHOLA, IDUKKI DISTRICT.
2 O.J.JOSEPH, S/O JOHNY AGED 36,
URUMBIL HOUSE, PANIKKANKUTTY,
UDUMBANCHOLA, IDUKKI DISTRICT.
BY ADVS.
SRI.B.RAMAN PILLAI
SRI.ANIL K.MOHAMMED
SRI.R.ANIL
SRI.DELVIN JACOB MATHEWS
SRI.SUJESH MENON V.B.
RESPONDENT/COMPLAINANT :
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SRI. SANAL. P. RAJ - PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10.06.2024,
THE COURT ON 21-06-2024 DELIVERED THE FOLLOWING:
Crl.Appeal No.276 of 2008 2
"C.R"
JOHNSON JOHN, J.
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Crl.Appeal No.276 of 2008
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Dated this the 21st day of June, 2024.
JUDGMENT
The appellants are accused Nos.1 and 2 in S.C No.9
of 2007 on the file of the Special Judge, (NDPS Act Cases),
Vadakara. They are challenging the conviction and sentence
imposed on them for the offence under Section 20 (b)(II)(c) of
the Narcotic Drugs and Psychotropic Substances Act (in short
'NDPS Act).
2. The prosecution case is that on 20-05-2003 at 4.45
p.m, when the Excise Circle Inspector at Excise Check Post,
Muthanga, inspected vehicle bearing registration No.TN-
60/7595, a secret cavity was seen under the seat behind the
driver seat and 23 packets containing a total 72 Kgs of ganja
was seized and it is alleged that the first accused was the driver
of the vehicle and the second accused was a passenger and
they were found transporting the ganja and they are thereby
alleged to have committed the offence as aforesaid.
3. When the accused persons appeared before the trial
court, after hearing both sides, charge was framed under
Section 20(b)(II)(c) of the NDPS Act and when the accused
persons pleaded not guilty, PWs1 to 9 were examined, Ext.P1 to
P12 and MOs 1 to 5 series were marked from the side of the
prosecution. No evidence was adduced from the side of the
defence. After hearing both sides and considering the oral and
documentary evidence on record, the learned Special Judge as
per the impugned judgment dated 31-01-2008 convicted and
sentenced the accused persons to undergo Rigorous
imprisonment for ten years and to pay a fine of Rs.1 Lakh each
and in default of payment of fine to undergo Rigorous
imprisonment for six months each for the offence under Section
20(b)(II)(c) of the NDPS Act.
4. Heard Sri.R.Anil, the learned counsel for the appellant
and Sri.Sanal P.Raj, the learned Public Prosecutor for the State
and perused the records.
5. The point that arises for consideration in this appeal
is whether the conviction and sentence passed against the
accused are legally sustainable.
6. The main contentions raised on behalf of the
appellants are as follows :
(i) The trial court has not considered the
statement filed by the accused under Section
233(2) Cr.P.C while appreciating the evidence of
material witnesses who supported the
prosecution case.
(ii) The trial court has not considered the
discrepancy regarding the time of occurrence in
Ext.P5 Crime and Occurrence report and Ext.P6
Report for correction of the time of occurrence in
Ext.P5.
(iii) There is non-compliance of Sections 52 and
57 of the NDPS Act and the same caused
prejudice to the accused and resulted in failure of
justice.
(iv) No satisfactory evidence is adduced to
prove the manner of sampling as well as its safe
custody in tamper free condition.
(v) Admittedly, sample was taken only from one
packet out of the 23 packets and there is no
evidence regarding the total quantity of ganja in
the packet from which the sample was taken.
7. The learned Public Prosecutor argued that the
evidence of PWs1 and 2 regarding the arrest and recovery of
the contraband items from the possession of the accused is
credible and trustworthy and it is also pointed out that drugs
like ganja can be identified by their colour, texture and smell
and that Sections 52 and 57 come into operation after the
arrest and seizure under the Act and even if there is no strict
compliance of any of these provisions which contain procedural
instructions that by itself will not invalidate the trial or the
conviction.
8. PW1 deposed that he was the Excise Circle Inspector
at Excise Check post, Muthanga on 20-05-2003 and that day
evening while he was inspecting the vehicles coming from
Karnataka side, vehicle bearing Registration No.TN60/7595
came from Karnataka side and apart from the driver, there was
only one passenger and when he questioned them on suspicion
their answers were contradictory and on further inspection a
secret cavity was seen under the seat behind the driver seat.
According to PW1 when the said secret cavity was opened, it
was found that the same contained 23 packets and when the
packets were opened, it was found that the packets contained
dry ganja. According to PW1, he took three samples of 25
grams each from one packet in the presence of the accused and
witnesses and also affixed seal and label with the signature of
the accused persons and witnesses. PW1 further deposed that
when the accused were informed about their right under
Section 50 of the NDPS Act to have the presence of a Gazetted
Officer or Magistrate for their body search they opted for the
presence of a Gazetted Officer and thereafter their body search
was conducted in the presence of the Sales Tax Officer and
nothing is recovered in the body search of the first accused, but
a sum of Rs.520/- was recovered from the second accused.
9. PW1 deposed that he arrested the accused persons
and the arrest memo is marked as Ext.P1. PW1 stated that on
weighing the 23 packets recovered, it was found to have 72
Kgs. According to PW1, the contraband recovered is packed in
two jute sacks and two plastic sacks and sealed. The seizure
mahazar is marked as Ext.P2 and the search list as Ext.P3. The
plastic sacks are identified as MOs1 and 2 and the jute sacks
are identified as MO3 and MO4. However, PW1 would say that
now there is no seal in MO1 and that he can see only the
remanence of the seal in MO2. According to PW1 he produced
the accused persons and the contraband items in the Excise
Range Office, Sulthan Bathery and entrusted the same to the
Excise Range Officer and also instructed the Excise Range
Officer to forward the report as required under Section 57 of
the NDPS Act.
10. PW2 deposed that he was working as Excise
Preventive Officer at Excise Checkpost, Muthanga on 20-05-
2003. According to PW2 on that day evening, he inspected
vehicle bearing registration No.TN 60/7595 along with PW1 in
front of the Check Post and from a secret cavity under the
vehicle, they recovered 23 packets containing 72 Kgs of ganja.
According to PW2, they took three samples of 25 grams each
from one packet and affixed label with the signature of the
Circle Inspector, accused persons and witnesses. PW2 stated
that the contraband recovered was packed in two plastic sacks
and the Circle Inspector sealed the same. According to PW2,
they inspected the jeep at about 3.30 p.m and the seizure
mahazar was prepared at about 4.45 p.m.
11. PW3 deposed that he was working as Sales Tax
Officer at the Sales Tax Check post, Muthanga during 2003 and
on the date of occurrence at about 3.30 p.m as per the request
of the staff from Excise Check Post, he reached the Excise
Office to witness the body search. According to PW3, when the
Excise Circle Inspector conducted the body search of the
second accused, Rs.520/- was recovered. PW3 also stated that
he witnessed the recovery of ganja from the jeep and that he
signed Ext.P2 seizure mahazar and Ext.P3 search list as a
witness.
12. In cross examination, PW3 stated that when coming
from Karnataka side, Sales Tax Check Post is after the Excise
Check Post and according to PW3 when he reached the place of
occurrence, other vehicles were also there and he admitted that
he did not see as to who took out the ganja from the jeep.
13. PW4 was the Village Officer of Noolpuzha, who
prepared Ext.P4 scene plan. In cross examination PW4 stated
that he prepared Ext.P4 on the basis of the mahazar and
nobody pointed out the place of occurrence to him.
14. PW6 Excise Circle Inspector deposed that he filed the
charge sheet as per the direction of the Filtering Committee
and in cross examination, he admitted that he has not
conducted any investigation in this case.
15. PW7 deposed that he is conducting a tea shop near
the Excise Check Post, Muthanga. According to PW7, the Excise
Officials inspected the jeep on the date of occurrence near the
Sales tax barricade at about 5.00 p.m, but he would say that
he has not witnessed the recovery of ganja from the jeep. PW7
was declared hostile to the prosecution. In cross examination,
PW7 stated that the Excise officials used to have food from his
shop and that 5 or 6 persons alighted from the jeep and he saw
the driver of the vehicle running away from there. According to
PW7, the jeep was driven by a person of short stature and not
by the accused.
16. PW8 deposed that he is working in an STD Booth
near the Check Post at Muthanga. According to PW8, the Excise
officials seized ganja from a jeep and the said jeep was seen
stopped in front of the Excise Office and 4 or 5 persons alighted
from the said jeep and the accused were among them.
However, PW8 would say that he did not see the Excise Officials
seizing ganja from the jeep. PW8 was declared hostile to the
prosecution.
17. In cross examination, PW8 stated that the Excise
Officials used to reach his STD Booth and on the date of
occurrence, Jobe (PW2) reached his STD Booth to telephone
the Excise Circle Inspector and the Excise Circle Inspector
reached there only after half an hour.
18. PW9 was the Excise Circle Inspector of Sulthan
Bathery during 2003-2004 and he deposed that the
investigation in this case was conducted by CW8, Excise
Inspector, A.C Thomas and that now he is in U.S.A. According
to PW9, he can identify the handwriting and signature of Excise
Inspector A.C Thomas and PW9 stated that Ext.P5 Crime and
Occurrence Report is prepared by Excise Inspector Thomas and
that the time of occurrence is shown as 9.00 p.m in Ext.P5.
According to PW9, Ext.P6 is a report filed by Excise Inspector
Thomas for correcting the time of occurrence in Ext.P5 and
Ext.P7 is the Crime and Occurrence Report subsequently filed
with the correct time of occurrence as 4.00 p.m.
19. PW9 deposed that Ext.P9 is a report filed regarding
the delay in producing the property as per Ext.P8 property list
and in Ext.P9 the reason for the delay is stated as the
obstruction in the traffic due to the National Harthal on 21-05-
2003.
20. Admittedly, sample was taken only from one packet
out of the 23 packets alleged to be recovered from the secret
cavity of the jeep.
21. The learned counsel for the appellants pointed out
that the procedure required to be followed was that the
samples must have been drawn from each of the 23 packets
recovered to ascertain the exact nature of the alleged
contraband in these packets and it was also pointed out that no
field testing kit was used by PWs 1 and 2 at the spot to confirm
that the packet contains ganja.
22. In Gaunter Edwin Kircher v. State of Goa,
Secretariat Panaji, Goa ( 1993 (3) SCC 145), the accused
was found in possession of two pieces of Charas that weighed 7
and 5 grams respectively, and out of the two pieces, one piece
of 5 grams was sent for chemical analysis and the other piece
weighing 7 grams was neither sent nor a sample thereof was
taken and sent for chemical analysis in the said case. The
Hon'ble Supreme Court held that since there was no chemical
analysis for the other piece weighing 7 grams, the accused
cannot be convicted for the said piece weighing 7 grams and
that he can be held liable only for the possession of the piece of
5 grams for which test was conducted.
23. In Union of India v. Bal Mukund & Others
((2009) 12 SCC 161), the Hon'ble Supreme Court held thus
in paragraph 36 as follows :
"36. There is another aspect of the matter which
cannot also be lost sight of. Standing Instruction No.
1/88, which had been issued under the Act, lays down
the procedure for taking samples. The High Court has
noticed that PW7 had taken samples of 25 gm each
from all the five bags and then mixed them and sent
to the laboratory. There is nothing to show that
adequate quantity from each bag had been taken. It
was a requirement in law."
24. In Santini Simone v. Department of Customs
(2020 SCC OnLine Del 2128), it was held thus :
"54. The next aspect to be examined relates to the
testing conducted on the spot and drawing of samples
from the charas allegedly recovered from the
appellant's trunk. The question to be addressed is
whether the samples drawn were representative of the
substance recovered from the appellant's baggage. The
controversy to be addressed is, essentially, three-fold.
The first relates to whether the procedure for drawing
samples allegedly followed by the complainant is
permissible. Second, whether the substance in all the
four pouches was tested prior to it being kept together.
Third, whether the contents of the four packets were
properly mixed to form a homogeneous mixture and
the samples were drawn from the same. "
25. The learned counsel for the appellants pointed out
that the settled law is that if it is not practicable to send the
entire quantity then sufficient quantity by way of samples from
each of the packets recovered should be sent for chemical
examination. It is pointed out that when 23 packets were
allegedly recovered and sample was taken only from one
packet, then the result would be of the total quantity in that
particular packet from which the sample was taken and there is
no evidence in this case to show the weight of the ganja
contained in that particular packet. The evidence of PWs1 and 2
in this case shows that the contents of the packets were mixed
only after taking the sample from one packet and therefore, it
can be seen that the prosecution has no case that the sample
was drawn after mixing the contents in all the 23 packets to
make it homogeneous and representative.
26. It is pertinent to note that the Standing Order
No.1/88 dated 15-03-88 was issued by the Narcotics Control
Bureau under Section 52 of the NDPS Act and paragraphs 1.6
and 1.7 of the said Order read as under :
"1.6 Quantity of different drugs required in the
sample :
The quantity to be drawn in each sample for chemical
test should be 5 grams in respect of all narcotic drugs
and psychotropic substances except in the cases of
Opium, Ganja and Charas/Hashish where a quantity of
24 grams in each case is required for chemical test. The
same quantities should be taken for the duplicate
sample also. The seized drugs in the
packages/containers should be well mixed to make it
homogeneous and representative before the sample in
duplicate is drawn.
1.7 Number of samples to be drawn in each seizure
case :
(a) In the case of seizure of single package/container
one sample in duplicate is to be drawn.
Normally it is advisable to draw one sample in
duplicate from each package/container in case of
seizure of more than one package/container.
(b) However, when the package/containers seized
together are of identical size and weight, bearing
identical markings and the contents of each
package give identical results on colour test by
U.N. kit, conclusively indicating that the packages
are identical in all respect/the packages/container
may be carefully bunched in lots of 10
packages/containers. In case of seizure of Ganja
and Hashish, the packages/containers may be
bunched in lots of 40 such packages/containers.
For each such lot of packages/containers, one
sample in duplicate may be drawn.
(c) Whereafter making such lots, in the case of
Hashish and Ganja, less than 20
packages/containers remain, and in case of other
drugs less than 5 packages/containers remain, no
bunching would be necessary and no samples
need be drawn.
(d) If it is 5 or more in case of other drugs and
substances and 20 or more in case of Ganja and
Hashish, one more sample in duplicate may be
drawn for such remainder package/containers.
(e) While drawing one sample in duplicate from a
particular lot, it must be ensured that
representative drug in equal quantity is taken
from each package/container of that lot and
mixed together to make a composite whole from
which the samples are drawn for that lot."
27. In the present case, admittedly, the sample was
taken only from one packet out of the 23 packets seized and
there is also no evidence as to the weight of total quantity of
contraband contained in that packet. In cross examination, PW1
admitted that he could not say from which packet the sample
was taken. According to PW1, all the packets were separately
weighed, but the weight of each of the packet was not
separately recorded. PW2 also admitted in cross examination
that he could not say from which packet the sample was taken.
According to PW2, the Circle Inspector weighed all the packets
separately, but he did not record the weight of each of the
packets separately.
28. The learned counsel for the appellants pointed out
that PW1 has no case that he complied the mandate of Section
57 of the NDPS Act and he only stated that he instructed the
Excise Inspector to forward a report under Section 57 of the
NDPS Act and in this case the prosecution has not examined
CW8, Excise Inspector, who forwarded Ext.P12(a) report dated
21-05-2003 to the Assistant Excise Commissioner and the
prosecution has also not examined the Assistant Excise
Commissioner to prove that he received Ext.P12(a) report
under Section 57 of the NDPS Act.
29. The learned Public Prosecutor argued that Sections
52 and 57 of the NDPS Act come into operation after the arrest
and seizure and that the said provisions contain procedural
instructions for strict compliance by the Officers and non-
compliance of any of the instructions by itself cannot render the
acts done by these Officers null and void, unless it is
established that such non-compliance has caused prejudice and
resulted in failure of justice. It is true that mere non-
compliance or failure to strictly comply with the provisions of
Sections 52 and 57 will not vitiate the prosecution unless such
non-compliance has caused prejudice and resulted in failure of
justice and therefore, it is necessary to analyse the evidence
and the merits of the case in view of the above aspects.
30. In the written statement filed under Section 233(2)
Cr.P.C, it is stated that the appellants who are brothers visited
their sister, who is working as a Staff Nurse at Pooja Hospital,
Channapatna on 19-05-2003 and they stayed there on that day
and on the next day, i.e., on 20-05-2003, they boarded a bus
to Mysore and from Mysore they reached Gundlupet in another
bus and since a National Harthal was declared on 21-05-2003,
there was no bus for travelling to Kerala and while they were
standing in the bus stop, the jeep involved in this case came
there and the driver of the jeep invited passengers to
Kozhikode and accordingly, the appellants and 4 or 5 other
passengers boarded the jeep. It is stated that the jeep was
driven by one Mani, a resident of Kambam in Tamil Nadu and
during the journey, some other passengers also boarded the
jeep and when the jeep reached the Excise Check Post at
Muthanga, PW2 (Jobe) and Excise Guard (Latheef) were
inspecting 4 or 5 vehicles stopped in front of the jeep and since
the Excise Officials were inspecting the vehicles stopped in front
of the jeep and there is possibility of delay in inspecting the
jeep, the passengers of the jeep, including the accused persons
and the driver of the jeep, alighted from the jeep. Subsequently
when the Excise Officials reached near the jeep for inspecting
the vehicle, the driver of the jeep and his assistant were not
there. It is stated that when the Excise Officials could not find
the driver of the jeep, they became angry and for the purpose
of enquiring about the driver of the jeep, the accused were
summoned to the Check Post and thereafter, detained there. It
is stated that subsequently, the Excise Officials produced two
sacks stating that the same was recovered from the jeep in
which the accused persons travelled and PW2 also informed
them that the sacks contained ganja and that in case Excise
Officials were not able to apprehend the driver of the vehicle,
they will be in trouble. It is stated that subsequently, PW1
reached there after about one hour and they were taken to the
Excise Office, Sultan Bathery, along with the vehicle and the
sacks. It is stated that the accused are falsely implicated in this
case only because the Excise Officials were not able to
apprehend the driver of the jeep and that the accused are not
having any connection with the jeep or the contraband items
recovered.
31. PW5 deposed that she is residing at Chennapatna in
Karnataka and that the accused are her relatives, who used to
visit her house. PW5 deposed that the accused persons came to
her house on 19-05-2003. In cross examination, PW5 stated
that she is working as a Staff Nurse in Pooja Hospital,
Chennapatna and that Chennapatna is between Bangalore and
Mysore. She stated that the accused persons reached her house
on 19th and on the next day at about 10.00 a.m, they boarded
a bus to Mysore from Chennapatna. It is pertinent to note that
the above evidence of PW5 before the court is not challenged
by the prosecution. The specific case of the defence is that the
contraband was not recovered from the possession of the
accused persons and they boarded the jeep involved in this
case as passengers from Gundlupet because of the National
Harthal on 21-05-2003 and the non-availability of the bus for
travelling to Kerala. The fact that there was a National Harthal
on 21-05-2003 is also disclosed from Ext.P9 report filed by the
Excise Inspector regarding the delay in production of the
property before the NDPS Special Court, Vadakara. It is
pertinent to note that the only witnesses who supported the
prosecution case regarding the occurrence are PWs 1 and 2
Excise officials. Apart from a vague statement by PW1 in chief
examination that when he inspected the jeep, only the driver
and one passenger were in the vehicle, he has no definite case
that he saw any of the accused driving the vehicle. PW2 has
also not deposed as to who was driving the jeep when the jeep
reached the Excise Check Post at Muthanga. The learned
counsel for the appellants pointed out that the evidence of PWs
1 and 2 in cross examination would show that their evidence
regarding the occurrence does not tally inasmuch as PW1 has
categorically admitted in cross examination that two other
vehicles were stopped in front of the jeep for the purpose of
inspection and that the jeep involved in this case came there
while the Excise Guard was inspecting the other vehicles. But
PW2 deposed in cross examination that apart from the jeep
involved in this case there was no other vehicle at the time of
occurrence. Even though PW2 stated that he has not witnessed
other persons alighting from the jeep, he admitted that the
accused persons have not attempted to run away from there.
In another part of the cross examination, PW2 stated that the
jeep was first inspected by him and at that time he saw two
passengers in the said jeep.
32. Admittedly, the contraband items were recovered
from a secret cavity under the jeep and in cross examination,
PW1 admitted that it was not the Excise Officials or the accused
persons, who took out the contraband items from the secret
cavity and that the same was done by another person, who was
present there. According to PW1, they sought the assistance of
another person because of the difficulty in opening the secret
cavity by lying under the vehicle. PW2 also admitted the said
fact in cross examination. However, PWs 1 and 2 were not in a
position to say the name or identity of the person, who opened
the secret cavity and took out the contraband items.
33. PWs 7 and 8 are the independent witnesses examined
from the side of the prosecution to prove the occurrence. Even
though, PWs 7 and 8 were declared hostile to the prosecution,
their evidence in cross examination shows that the defence
version of the incident is probable. The evidence of PW7 shows
that he saw 5 or 6 persons alighting from the jeep and that the
jeep was driven by a person of short stature and not by the
accused persons in this case. PW8 also deposed that he saw 4
or 5 persons alighting from the jeep and that the accused were
among them. Further, PW9 also admitted in cross examination
that PWs 7 and 8 had stated to the Investigating Officer that
they saw 4 or 5 persons alighting from the jeep.
34. It is well settled that suspicion, however strong
cannot take the place of proof. The accused is presumed to be
innocent unless proven guilty beyond reasonable doubt. It is
true that the offences under the NDPS Act are of serious nature
and people indulging in peddling, possession or dealing in any
manner with Narcotic drugs are causing havoc to the social
fabric of the society and health of the young and
impressionable youth, but the presumption of innocence until
proven guilty is one of the fundamental principles of Criminal
Jurisprudence. Section 35 of the NDPS Act, deals with the
presumption of the culpable mental state of the accused
requiring the court to presume the mental state for a
prosecution under the Act. Explanation to Section 35 of the
NDPS Act provides that "culpable mental state" includes
intention, motive, knowledge of a fact and belief in, or reason
to believe, a fact. Sub Section (2) of Section 35 provides that a
fact is said to be proved only when the Court believes it to exist
beyond a reasonable doubt and not merely when its existence
is established by a preponderance of probability. In Naresh
Kumar @ Nitu v. State of Himachal Pradesh ((2017) 15
SCC 684), it was held by the Hon'ble Supreme Court that the
presumption under Sections 35 and 54 of the NDPS Act is
rebuttable and such a presumption does not dispense with the
obligation on the prosecution to prove the charge beyond all
reasonable doubt and that the presumptive provision with
reverse burden of proof does not sanction conviction on the
basis of preponderance of probability.
35. In this case the prosecution has not examined CW8,
Excise Inspector, who conducted the investigation and there is
nothing in evidence to show that any investigation is conducted
regarding the source of the ganja seized or the owner of the
jeep bearing registration No.TN60/7595. The prosecution has
also not produced the registration particulars of the said
vehicle. Therefore, I find force in the argument of the learned
counsel for the appellants that the non-examination of the
Investigating Officer has caused serious prejudice to the
accused persons. The two fundamental principles while
appreciating the evidence in a criminal case are that the guilt
against the accused is to be proved beyond reasonable doubt
and the burden on the accused is not so heavy to prove the
plea taken by him and the accused can discharge the burden by
showing the preponderance of probability to rebut the
presumption.
36. As noticed earlier, PWs 7 and 8 are the independent
witnesses examined from the side of the prosecution and their
evidence clearly shows that they saw 5 or 6 passengers in the
jeep involved in this case and PW7 also deposed that the jeep
was driven by a person of short stature and not by the accused
persons in this case. The evidence of PW8 who is working in an
STD Booth near the Check post shows that Preventive Officer
Jobe, who is examined as PW2 telephoned PW1 Circle Inspector
from the STD Booth and the Circle Inspector reached there only
after half an hour and therefore the presence of PW1 at the
place of occurrence at the time of recovery of the ganja from
the jeep is doubtful. The specific case of the accused is that
they boarded the jeep as passengers from Gundlupet while
they were returning from the house of PW5 who is their sister
and that the jeep was driven by one Mani, a native of Tamil
Nadu and they have no other connection with the jeep or the
contraband items recovered and that they were detained in the
Excise Office while the Excise Officials were searching for the
driver of the jeep and subsequently when the Excise Officials
were not able to apprehend the driver of the jeep, they were
falsely implicated in this case. The discrepancy regarding the
time of occurrence in Ext.P5 Crime and Occurrence Report and
Ext.P6 Report for correction of the time of occurrence from 9.00
p.m on 20-05-2003 to 4.00 p.m on 20-05-2003 will also
indicate that the case put forward by the defence is probable. It
is pertinent to note that the alleged occurrence was on 20-05-
2003 and Ext.P6 Report for correcting the time of occurrence in
Ext.P5 Crime and Occurrence report is dated 22-05-2003. The
decision of the Hon'ble Supreme Court in Naresh Kumar's
case (supra) shows that when independent witnesses are
available and the prosecution initially seeks to rely upon them it
cannot suddenly discard the said independent witnesses when it
finds them inconvenient. It is pertinent to note that in this case,
PWs 7 and 8, the independent witnesses examined, have not
supported the prosecution regarding the alleged recovery of the
contraband from the possession of the accused persons and
this Court find that the evidence of PWs 1 and 2 regarding the
occurrence and alleged recovery of the contraband from the
possession of the accused persons does not inspire confidence
and therefore on a careful re-appreciation of the entire
evidence, this Court find that the prosecution has failed to
establish foundational facts beyond all reasonable doubt and in
that circumstance, the impugned judgment is liable to be set
aside and the appeal is to be allowed.
In the result, the appeal is allowed and the conviction and
sentence passed against the appellants/accused Nos.1 and 2 in
S.C No.9 of 2007 on the file of the Special Judge, (NDPS Act
Cases), Vadakara is set aside and they are acquitted of the
offence under Section 20(b)(II)(c) of the NDPS Act. The bail
bond executed by the appellants/accused Nos.1 and 2 shall
stand cancelled and they are set at liberty forthwith.
Sd/- JOHNSON JOHN, JUDGE.
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