Kerala High Court
Sivakumar vs Kerala State on 24 October, 2024
CRL.A NO. 2910 OF 2008
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2024:KER:79723
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
THURSDAY, THE 24TH DAY OF OCTOBER 2024 / 2ND KARTHIKA, 1946
CRL.A NO. 2910 OF 2008
AGAINST THE JUDGMENT IN SC NO.149 OF 2008 OF 5th ADDITIONAL
SESSIONS COURT ERNAKULAM
APPELLANT/ACCUSED:
SIVAKUMAR, AGED 36 YEARS
S/O. SIVAN, RESIDING AT HOUSE NO.95,, UDAYA COLONY,
GANDHI NAGAR,, ERNAKULAM.
BY ADV SRI.MATHAI VARKEY MUTHIRENTHY
RESPONDENT:
KERALA STATE
SUB INSPECTOR OF POLICE,, KADAVANTHRA POLICE STATION,,
THROUGH THE PUBILC PROSECUTOR,, ERNAKULAM.
OTHER PRESENT:
PP-SRI.M.C.ASHI
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.10.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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J U D G M E N T
This appeal is at the instance of the sole accused in
S.C.No. 149 of 2008 on the file of Sessions Judge, Ernakulam,
challenging his conviction and sentence under Section
20(b)(ii)(B) of Narcotic Drugs and Psychotropic Substances Act,
1985 (for short, 'the NDPS Act), as per judgment dated
24.11.2008.
2. The prosecution allegation is that, on 10.11.2007 at
03.35 p.m., the accused was found in possession of 1.535 kg of
dry ganja, in contravention of the provisions of the NDPS Act.
PW1, the Sub-Inspector of Police, Central police station
Ernakulam, as directed by Assistant Commissioner of Police,
reached the place of occurrence near Udaya Colony at Karshaka
road, Kadavanthra, and seized the contraband from the accused
which was kept in a bag. Samples were drawn from the
contraband, mahazar was prepared for the seizure, and the
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accused was arrested. Crime No. 491 of 2007 of Kadavanthra
police station was registered, and on completing investigation,
charge was laid against him under Section 20(b)(ii)(B) of the
NDPS Act.
3. On appearance of the accused before the trial court,
charge was framed under Section 20(b)(ii)(B) of the NDPS Act, to
which he pleaded not guilty, and claimed to be tried. PWs1 to 6
were examined, Exts.P1 to P8 were marked, and MOs 1 to 9 were
identified. On closure of prosecution evidence, the accused was
questioned under Section 313 of Cr.P.C. He denied all the
incriminating circumstances brought on record and pleaded
innocence. Exts.D1 and D2 were marked from defence side.
4. On analyzing the facts and evidence, and on hearing the
rival contentions from either side, the trial court found the
accused guilty under Section 20(b)(ii)(B) of the NDPS Act, and
he was convicted and sentenced to undergo rigorous
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imprisonment for two years, and fine of Rs.10,000/-, with a
default sentence of rigorous imprisonment for three months.
Aggrieved by the conviction and sentence, the accused has
preferred this appeal.
5. Heard learned counsel for the appellant, and learned
Public Prosecutor.
6. The challenges against the impugned judgment are
manifold. Learned counsel for the appellant submitted that, the
search and seizure conducted by PW1 was in violation of Section
42(1) and 42(2) of the NDPS Act. Section 57 of the NDPS Act
also has not been complied with. The delay in producing the
contraband article before court, is not explained. No evidence is
there as to who was in possession of the contraband, till it was
produced before court or under what condition, it was kept. The
seizure mahazar does not contain the specimen impression of the
seal with which the sample packets were sealed. The link
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evidence, that the sample analyzed before the lab, was the
sample drawn from the contraband seized from the possession of
the accused at the place of occurrence is not proved. Learned
counsel for the appellant would argue that the trial court, without
taking into account these material aspects, convicted and
sentenced the accused and so, the impugned judgment is liable
to be set aside.
7. PW1, the Sub Inspector of Police, Central police station,
Ernakulam, deposed that he was informed by Assistant
Commissioner of Police, that shadow police had intercepted a
person within the limits of Kadavanthara police station, and since
Sub Inspector, Kadavanthara, was on leave, he was directed to
proceed to that place for appropriate action. Ext.P2 seizure
mahazar will show that, the shadow police informed the Assistant
Commissioner of Police that, on suspicion, they prevented one
Mr.Sivakumar, and on examining the bag which was found in his
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possession, they realized that it contained dry Ganja. That
information was passed on to PW1 by the Assistant
Commissioner of Police. So, before proceeding to the place of
occurrence, PW1 was having reliable information, that
Mr.Sivakumar was possessing dry Ganja. If so, PW1 ought to
have recorded the information received by him and copy of the
same could have been forwarded to his immediate superior. PW1
deposed that he informed North Circle Inspector of Police,
regarding the information he had received and only thereafter,
he proceeded to the place of occurrence. But no evidence is there
to show that, PW1 recorded that information or forwarded a copy
of the same to his immediate superior. There cannot be any
presumption as to the compliance of Section 42 (1) and 42 (2) of
the NDPS Act, when the statute stipulates the recording of
information in writing and forwarding a copy of the same to the
superior officer. So obviously there is violation of Sections 42(1)
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and 42 (2) of the NDPS Act. There are umpteen number of
decisions by the Apex Court including the decision State of
Punjab v. Balbir Singh [1994 KHC 798] which will say that
non-compliance of Section 42 (1) and 42 (2) of the NDPS Act will
vitiate the trial.
8. Ext.P2 mahazar will not show the specimen impression of
the seal, with which the sample packets were sealed by PW1. The
sample of the contraband has to be drawn at the place of seizure
itself, and the seizure mahazar is a contemporary document
prepared at the time of seizure. So the specimen impression of
the seal affixed on the seizure mahazar will give authenticity to
the sample, sealed with the very same specimen seal. It will
help to establish the link evidence that the sample drawn from
the contraband seized from the place of occurrence, was the
sample analyzed before the chemical examiner's lab. So the
absence of specimen impression of the seal in the seizure
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mahazar, will be a ground to doubt the genuineness of the
sample which reached the lab. In that circumstance, Ext.P8
chemical analysis report also cannot be said to be of the sample
drawn from the contraband, which was seized from the
possession of the accused at the place of occurrence.
9. PW1 has signed Ext.P2 seizure mahazar. But the person
who prepared that mahazar is not a witness in that document.
Though independent witnesses admitted their signature in that
mahazar, according to them, they have not seen PW1 seizing the
contraband from the possession of the accused. So the
testimony of PW1 lacks corroboration from independent
witnesses.
10. Now let us see whether the testimony of PW1 is reliable
to accept the same without any corroboration from independent
witnesses. Regarding weighing of the contraband and drawal of
sample, PW1 deposed that, the contraband was taken to a
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nearby shop, where it was weighed, and two samples of 10
grams each also were weighed, in the weighing balance of that
shop. But the prosecution case is that a weighing balance was
brought to the place of occurrence, from a nearby shop, and it
was weighed at the place of occurrence. PW3 - Mr. Ramesh Babu
who is an employee in a nearby bakery, deposed that SI of Police
reached his shop with a packet, and it was weighed in his shop,
though he was not aware of its contents. So it is clear that the
sampling was not done at the spot. PW1 did not even support
the prosecution case that the contraband was weighed, and
sample was drawn at the place of occurrence itself. So the
testimony of PW1 is not a reliable one.
11. Without noticing these material defects which were
sufficient enough to vitiate the trial, the trial court convicted the
accused under Section 20(b)(ii)(B) of NDPS Act, and hence it is
liable to be interfered with.
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12. For the reasons aforementioned, appellant/accused is
found not guilty and his conviction and sentence under Section
20(b)(ii)(B) of the NDPS Act, is set aside, and he is acquitted. His
bail bond is cancelled, and he is set at liberty forthwith.
Accordingly, the appeal stands allowed.
Sd/-
SOPHY THOMAS
JUDGE
RMV
