Kerala High Court
Abdul Rasheed vs State Of Kerala on 2 April, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 2ND DAY OF APRIL 2025 / 12TH CHAITHRA, 1947
CRL.A NO. 123 OF 2021
CRIME NO.20/2020 OF EXCISE RANGE OFFICE, PALAKKAD
AGAINST THE JUDGMENT DATED 15/01/2021 IN SC NO.390 OF
2020 ON THE FILE OF THE COURT OF SESSION, PALAKKAD.
APPELLANT/ACCUSED:
ABDUL RASHEED,
AGED 30 YEARS
S/O.MUHAMMED,
ELAYODATHU VEEDU,
PALAPOTHA DESOM,
PANNIPPARA POST, MALAPPURAM.
BY ADVS.
V.JOHN SEBASTIAN RALPH
SRI.L.RAJESH NARAYAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY EXCISE INSPECTOR,
EXCISE RANGE OFFICE,
PALAKKAD, THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM
BY ADV.VIPIN NARAYAN, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
25.03.2025, THE COURT ON 02.04.2025 DELIVERED THE FOLLOWING:
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C.S.SUDHA, J.
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Criminal Appeal No.123 of 2021
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Dated this the 02nd day of April 2025
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the
appellant, the sole accused, in S.C.No.390 of 2020 on the file of the
Court of Session, Palakkad, challenges the conviction entered and
sentence passed against him for the offence punishable under Section
20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act,
1985 (the Act).
2. The prosecution case is as follows: on 15/02/2020 at
about 03:50 p.m. PW1, Excise Inspector, Excise Range Office,
Palakkad and his party were on routine patrolling duty. When they
reached the place of occurrence, that is, the national highway
junction from where a new road leads to the railway station at
Olavakkode, Palakkad, they saw the accused coming from the
railway station with a trolley bag and another bag. When the accused
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saw the Excise party he became perplexed and started looking
around. Suspicions arose and hence the accused was intercepted and
the bags in his possession were inspected. On examination it was
found that the trolley bag contained 6 packets and the other bag
contained packets wrapped with brown paper and sealed with cello
tape. On examining the contents of the packets, it was found to be
ganja. The contraband was found to have a weight of 21 kilograms.
Hence, the contraband was seized and the accused arrested. Thus, as
per the complaint filed, the accused is alleged to have committed the
offence punishable under Section 20(b)(ii)(c) of the Act.
3. Crime no.20/2020, Excise Range Office, Palakkad, that
is, Ext.P6 crime and occurrence report was registered by PW1, the
detecting officer. PW5, the Excise Circle Inspector, Palakkad
conducted the investigation and on completion of the investigation
submitted the final report alleging the commission of the offence
punishable under the aforementioned Section by the accused.
4. On appearance of the accused, the trial court after
complying with all the necessary formalities contemplated under
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Section 207 Cr.P.C. and after hearing both sides under Section 227
Cr.P.C., framed a charge under Section 20(b)(ii)(c) of the Act, which
was read over and explained to the accused to which he pleaded not
guilty.
5. On behalf of the prosecution, PW1 to PW5 were
examined and Exts.P1 to P22 and MO.1 to MO.4 were marked in
support of the case. After the close of the prosecution evidence, the
accused was questioned under Section 313(1)(b) Cr.P.C. regarding
the incriminating circumstances appearing against him in the
evidence of the prosecution. The accused denied all those
circumstances and maintained his innocence. He also filed a
statement under Section 313(5) Cr.P.C. contending that he had gone
to Coimbatore in search of a job. However, he was unable to secure
any employment and hence returned. As he did not have any money
to take a ticket, he travelled from Coimbatore to Palakkad without a
ticket. He was taken into custody by the railway police. While he
was in the custody of the railway police, the Excise team arrived
there and made enquiries. The accused confessed that he was an
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accused in an earlier NDPS case for being in possession of 100
grams of ganja, for which he had been fined. Hearing this, the Excise
party took him into custody and registered the false case against him
stating that 21 kgs of ganja has been seized from his possession. He
had not given any statement to PW1 the detecting officer waiving his
right to be searched in the presence of a magistrate or a gazetted
officer. The statement alleged to have been given by him was
obtained by the Excise party by threatening and manhandling him.
6. As the trial court did not find it a fit case to acquit
the accused under Section 232 Cr.P.C., he was asked to enter on his
defence and adduce evidence in support thereof. No oral or
documentary evidence was adduced on behalf of the accused.
7. On consideration of the oral and documentary
evidence and after hearing both sides, the trial court by the impugned
judgment found the accused guilty of the offence punishable under
Section 20(b)(ii)(c) of the Act and hence sentenced him to rigorous
imprisonment for ten years and to a fine of ₹1,00,000/- and in default
to rigorous imprisonment for one year. Set off for the period from
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15/02/2020 till the date of judgment, that is, on 15/01/2021 was
granted under Section 428 Cr.P.C. Aggrieved, the accused has come
up in appeal.
8. The only point that arises for consideration in this
appeal is whether the conviction entered and sentence passed against
the appellant/accused by the trial court are sustainable or not.
9. Heard both sides.
10. It was submitted by the learned counsel for the
appellant/accused that the main challenge raised is non compliance
of Section 52A of the Act. In support of the same he relied on the
following dictums:- Vijay Pandey v. State of Uttar Pradesh, 2019
KHC 6727: 2019 (18) SCC 215 ; Faijas v. State of Kerala, 2020
KHC 5259, and Mangilal v. State of Madhya Pradesh, 2023
SCC OnLine SC 862. It was also pointed out that Ext.P5 seizure
mahazar alleged to have been prepared at the scene of occurrence
does not contain the specimen impression of the seal alleged to have
been affixed on the contraband articles. These aspects are sufficient
to raise doubts regarding the prosecution case entitling the
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appellant/accused to get an order of acquittal, argued the learned
counsel.
10.1. Per contra, it was submitted by the learned Public
Prosecutor that the materials on record are sufficient to establish the
prosecution case and that there is no infirmity in the findings of the
trial court calling for an interference by this Court.
11. Section 52A of the Act reads thus:-
"52A. Disposal of seized narcotic drugs and psychotropic
substances.- (1) The Central Government may, having regard
to the hazardous nature, vulnerability to theft, substitution,
constraint of proper storage space or any other relevant
consideration, in respect of any narcotic drugs, psychotropic
substances, controlled substances or conveyances, by
notification in the Official Gazette, specify such narcotic
drugs, psychotropic substances, controlled substances or
conveyance or class of narcotic drugs, class of psychotropic
substances, class of controlled substances or conveyances,
which shall, as soon as may be after their seizure, be
disposed of by such officer and in such manner as that
Government may, from time to time, determine after following
the procedure hereinafter specified.
(2) Where any narcotic drugs, psychotropic substances,
controlled substances or conveyances has been seized and
forwarded to the officer-in-charge of the nearest police
station or to the officer empowered under section 53, the
officer referred to in sub-section (1) shall prepare an
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inventory of such narcotic drugs, psychotropic substances,
controlled substances or conveyances containing such details
relating to their description, quality, quantity, mode of
packing, marks, numbers or such other identifying particulars
of the narcotic drugs, psychotropic substances, controlled
substances or conveyances or the packing in which they are
packed, country of origin and other particulars as the officer
referred to in sub-section (1) may consider relevant to the
identity of the narcotic drugs, psychotropic substances,
controlled substances or conveyances in any proceedings
under this Act and make an application, to any Magistrate for
the purpose of--
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such magistrate, photographs of
such drugs, substances or conveyances and certifying such
photographs as true; or
(c) allowing to draw representative samples of such drugs or
substances, in the presence of such Magistrate and certifying
the correctness of any list of samples so drawn.
(3) Where an application is made under sub-section (2), the
Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian
Evidence Act, 1872 (1 of 1872) or the Code of
(5) Criminal Procedure, 1973 (2 of 1974), every court
trying an offence under this Act, shall treat the inventory, the
photographs of narcotic drugs, psychotropic substances,
controlled substances or conveyances and any list of samples
drawn under sub-section (2) and certified by the Magistrate,
as primary evidence in respect of such offence."
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12. As held in Mangilal (Supra), sub-section (1) of
Section 52A of the Act facilitates the Central Government a mode to
be prescribed to dispose of the seized narcotic substance. The idea is
to create a clear mechanism for such disposal both for the purpose of
dealing with the particular case and to safeguard the contraband
being used for any illegal purpose thereafter. Sub-section (2) of
Section 52A of the Act mandates a competent officer to prepare an
inventory of such narcotic drugs with adequate particulars. This has
to be followed through an appropriate application to the Magistrate
concerned for the purpose of certifying the correctness of inventory,
taking relevant photographs in his presence and certifying them as
true or taking drawal of samples in his presence with due
certification. Such an application can be filed for anyone of the
aforesaid three purposes. The objective behind this provision is to
have an element of supervision by the magistrate over the disposal of
seized contraband. Such inventories, photographs and list of samples
drawn with certification by Magistrates would constitute primary
evidence. Therefore, when there is non-compliance of Section 52A
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of the Act, where a certification of a magistrate is lacking, any
inventory, photograph or list of samples would not constitute
primary evidence. The obvious reason behind this provision is to
inject fair play in the process of investigation. Section 52A is a
mandatory rule of evidence which requires the physical presence of a
Magistrate followed by an order facilitating his approval either for
certifying an inventory or for a photograph taken apart from the list
of samples drawn.
13. In this context it would be apposite to refer to the
dictum in Bharat Aambale v. State of Chhattisgarh, 2025 SCC
Online SC 110 in which case the Apex Court after referring to
several precedents on the point including Union of India v.
Mohanlal, 2016 ICO 558 held that mere non-compliance of the
procedure under Section 52A of the Act or the standing
order(s)/rules thereunder will not be fatal to the trial unless there are
discrepancies in the physical evidence rendering the prosecution case
doubtful, which may not have been there, had such compliance been
done. Courts must take a holistic and cumulative view of the
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discrepancies that may exist in the evidence adduced by the
prosecution and appreciate the same more carefully keeping mind
the procedural lapses. If the remaining materials on record adduced
by the prosecution, oral or documentary inspire confidence and
satisfy the court as regards the recovery as well as conscious
possession of the contraband from the accused persons, then even in
such cases, the courts can without hesitation proceed to hold the
accused guilty notwithstanding any procedural defect in terms of
Section 52A of the Act. Non-compliance or delayed compliance of
the said provision or rules thereunder may lead the court to draw an
adverse inference against the prosecution. However, no hard and
fast rule can be laid down as to when such inference may be drawn,
and it would all depend on the peculiar facts and circumstances of
each case. Where there has been lapse on the part of the police in
either following the procedure laid down in Section 52A of the Act
or the prosecution in proving the same, it will not be appropriate for
the court to resort to the statutory presumption of commission of an
offence from the possession of illicit material under Section 54 of
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the Act, unless the court is otherwise satisfied as regards the seizure
or recovery of such material from the accused persons from the other
material on record. Therefore, I will consider whether the materials
on record in the case on hand are sufficient to find the
appellant/accused guilty of the offence alleged against him.
14. The incident is alleged to have taken place on
15/02/2020. Ext.P9 property list shows that the contraband was
produced before the Magistrate on the same day itself. The
Magistrate is seen to have directed the officer concerned to produce
the contraband before the Court. Thereafter, the contraband is seen
produced before the Court only on 17/02/2020. Ext.P10 dated
15/02/2020 is the application submitted by the Excise Inspector,
Excise Range Office, Palakkad before the JFCM Court-II, Palakkad
which reads thus:
"Before the Honorable Judicial First Class Magistrate
Court-II, Palakkad.
NDPS CR No:20/2020, Excise Range Office, Palakkad
Accused: Abdul Rasheed S/o Muhammad Elayedath House, Palapotta
desom, Edavanna Village, Eranad Taluk, Malapuram Dist.
The above mentioned crime detected by Excise Inspector, Excise Range
Office, Palakkad while Combined checking with Palakkad special squad
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party on 15.02.2020/04.00 PM Infront of main gate of Palakkad Junction
Railway station Olavakkode desom Palakkad I Village Palakkad for
illegally possession of 21 Kg Dry Ganja in the presence of independent
witness from the place of occurrence and the same is submitted with this
application.
I am herewith submitting an inventory describing the details of the seized drug.
I request that necessary action may be taken to:
1. Certify the correctness of the inventory
2. Take photographs of the drugs and substances produced along with
and to certify the photograph as true.
3. Allow to draw representative samples of the drug in the presence of
the Honorable Magistrate and to certify the correctness of the list of
samples so drawn.
Dated this the 15th day of February 2020" (Emphasis supplied)
15. Though Ext.P10 states that the inventory
describing the details of the seized drug has been submitted along
with Ext.P10 application, the same is not seen produced or marked in
evidence. When the inventory itself has not been produced, there
cannot be any question of certifying the same. Therefore, there has
been non-compliance of Section 52A(2)(a).
16. Ext.P16 series are the photographs of the
contraband stated to have taken in the presence of the Magistrate
concerned. In Ext.P19, the Magistrate says that the photos were
taken in his presence and that the photographs were certified to be
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true and correct. Section 52A(2)(b) says that photographs shall be
taken in the presence of the Magistrate who shall certify such
photographs as true. On going through Ext.P16 series photographs, I
do not find any certification as contemplated under the aforesaid
provision. Therefore, there is yet another non-compliance of the
statutory provision.
17. Another anomaly seen is List II in Ext.P9 property
list dated 17/02/2020. List II contains the details of the samples
taken from the contraband seized from the appellant/accused. Item
no.1, 3 and 5 are the samples that are alleged to have been taken
from item no.1, 2 and 3 in List I of Ext.P9. However, Ext.P19
proceedings of the Magistrate is dated 18/02/2020. A reading of List
II in Ext.P9 gives the impression that the samples were already taken
on 17/02/2020. If that be so, there is non-compliance of Section 52A
(2)(c).
18. Another disturbing aspect that is pointed out is the
delay in the sample reaching the laboratory. The incident is alleged
to have taken place on 15/02/2020. The contraband was produced
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before the Court after two days, that is, on 17/02/2020. Ext.P11
forwarding note shows that an officer of the Excise Range Office,
Palakkad had received the sample from the court on 18/03/2020.
However, the receipt of the Regional Chemical Examiner's
Laboratory, Ernakulam produced along with Ext.P11 forwarding
note and the covering letter of the trial judge concerned shows that
the sample packet was received in the laboratory only on
03/06/2020. This inordinate delay in the sample reaching the
laboratory has not been explained by the prosecution. It is not clear
in whose custody the sample was from the date on which it was
received from the court, that is, on 18/03/2020 till it reached the
laboratory on 03/06/2020. Neither the property Section Clerk of the
Court concerned nor the officer who received the sample packet
from the Court and produced before the laboratory has been
examined. This is yet another aspect which raises doubts regarding
the prosecution case.
19. It is true that mere non-compliance of Section 52A
of the Act is no ground to reject the prosecution case provided there
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are other sufficient materials to prove the case. The remaining
materials on record are also insufficient because in the case of non-
compliance of Section 52A, then the residue contraband after drawal
of the sample has to be produced before the Court, brought in
evidence and marked. However, that has also not been done. The Act
provides for stiff sentences. Therefore, stiffer the sentence stiffer is
the proof required. That being the position, I find that the
appellant/accused is entitled to the benefit of doubt.
In the result, the appeal is allowed and the conviction and
sentence imposed against the appellant/accused by the trial court for
the offence punishable under Section 20(b)(ii)(c) is set aside. The
accused is acquitted under Section 235(1) Cr.P.C. He is set at liberty
and his bail bond shall stand cancelled.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
ak
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APPELLANT'S ANNEXURES:-
ANNEXURE 1 TRUE COPY OF THE INVITATION CARD OF THE
MARRIAGE OF THE BROTHER OF THE APPLICANT,
TO BE HELD ON 10.02.2024.
