Kerala High Court
Shibu S/O.Sasi vs State Of Kerala on 4 February, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 4TH DAY OF FEBRUARY 2025 / 15TH MAGHA, 1946
CRL.A NO. 29 OF 2014
AGAINST THE JUDGMENT DATED 31.12.2013 IN SC NO.37 OF
2010 OF SPECIAL COURT (NDPS ACT CASES), VATAKARA
APPELLANT/ACCUSED:
SHIBU
AGED 35 YEARS
S/O.SASI, R/AT CHERUKAPALLI HOUSE, THALUMKANDOM,
MANKULAM POST, NEAR MANKULAM CHRISTIAN CHURCH,
IDUKKI DISTRICT.
BY ADV SRI.S.JIJI
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SMT.SHEEBA THOMAS, PP
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON
28.01.2025, THE COURT ON 04.02.2025 DELIVERED THE FOLLOWING:
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2
C.S.SUDHA, J.
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Crl.Appeal No.29 of 2014
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Dated this the 4th day of February 2025
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the appellant
who is the accused in S.C. No.37 of 2010 on the file of the Court of
the Special Judge (NDPS Act Cases), Vatakara, challenges the
conviction entered and sentence passed against him for the offence
punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (the Act).
2. The prosecution case is that on 19/06/2010 at 17:00
hours, PW1, the Sub Inspector of police, Koyilandy, found the
accused in possession of 4.900 kilograms of ganja in a bag. The
accused was apprehended with the contraband from the public way
leading to Balussery road, south of new bus stand, Koyilandy.
Hence, the accused as per the final report is alleged to have
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committed the offences punishable under Section 8(c) read with
Section 20(b)(ii)(B) of the Act.
3. Crime No.511/2010, Koyilandy police station, that is,
Ext.P5 FIR, was registered by PW1, the detecting officer. PW8,
Circle Inspector, Koyilandy, was the investigating officer who on
completing the investigation submitted the final report/charge sheet
alleging the commission of the offences punishable under the above
mentioned sections by the accused.
4. On appearance of the accused before the trial court,
copies of all documents relied on by the prosecution were furnished
to him. After hearing the accused, the trial court framed a charge
under Section 20(b)(ii)(B) of the Act, which was read over and
explained to the accused to which he pleaded not guilty.
5. On behalf of the prosecution, PWs 1 to 8 were examined
and Exts.P1 to P15 and Mos 1 to 4 were got 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. with regard to the
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incriminating circumstances appearing against him in the evidence
of the prosecution. The accused denied all those circumstances and
maintained his innocence.
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 by the accused.
7. On a 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)(B) of the Act and hence sentenced him to undergo
rigorous imprisonment for three years and to a fine of ₹75,000/-
and in default of payment of fine to rigorous imprisonment for one
year. Set off under Section 428 Cr.P.C. has also been allowed.
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
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accused by the trial court are sustainable or not.
9. Heard both sides.
10. It is submitted by the learned counsel for the
appellant/accused that the evidence on record is totally insufficient
to prove the prosecution case. There is only the testimony of PWs 1
and 2, who are none other than police officials. Their testimony is
not supported by any independent witnesses. There is no specimen
of the seal alleged to have been affixed in the samples and the
contraband in Ext.P4 seizure mahazar. PW8, the investigating
officer, himself has suspicions whether the incident occurred at the
place of occurrence. Hence, in these circumstances, the benefit of
doubt ought to have been given to the accused and acquitted.
However, the trial court grossly erred in convicting the accused,
goes the argument.
11. Per contra, the learned Public Prosecutor submitted that
there is ample and sufficient evidence on record to prove the
prosecution case and that the impugned judgment suffers from no
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infirmity calling for an interference by this Court.
12. PW1 is the detecting officer who, when examined,
deposed in support of the prosecution case. PW2 is one of the
police constables who is alleged to have been in the team along
with PW1 when the offence was detected. PW2 also supports the
testimony of PW1. PWs 3 and 4 are the independent witnesses and
attesters to Ext.P4 seizure mahazar. According to PW3, he does not
know the accused and he had not seen the Sub Inspector arresting
the accused. He admitted his signature in Ext.P4 seizure mahazar.
PW4 also deposed that he does not know the accused and that he
had not seen the police arresting the accused at Koilandy. He also
admitted his signature in Ext.P4 seizure mahazar. In the cross-
examination, he deposed that it was at the police station that he had
attested the mahazar.
13. PW8, the investigating officer, deposed that PW1 on
20/06/2010 had produced the accused before him and handed over
the FIR and the contemporaneous documents to him. He conducted
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the investigation in the case. On completion of the investigation, he
had submitted the final report/charge sheet before the court.
14. It is true that merely because independent witnesses
turned hostile, is no reason to disbelieve the prosecution case,
provided the testimony of the official witnesses is creditworthy and
inspires confidence in the mind of the court. Therefore, the question
is whether the testimony of PWs 1 and 2 and the remaining
materials on record are sufficient to find the accused guilty of the
offence alleged against him. Admittedly, the provisions of Section
52A of the Act have not been complied with. As held by the Apex
Court in Bharat Aambale v. State of Chhattisgarh, 2025 SCC
OnLine SC 110, mere non compliance of the procedure under
Section 52A 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's case doubtful, which may not
have been there had such compliance been done. Courts should take
a holistic and cumulative view of the discrepancies that may exist
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in the evidence adduced by the prosecution and appreciate the same
more carefully keeping in mind the procedural lapses. If the other
material on record adduced by the prosecution, oral or documentary
inspires confidence and satisfies 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 drawing 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. Therefore, I will
consider whether the materials on record inspires the confidence of
the court to arrive at a conclusion regarding the guilt of the accused.
15. PW1, the detecting officer, deposed that when he seized
the contraband article, he had drawn samples which were packed
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and sealed. In Ext.P4 mahazar, he does not have a case that he had
affixed his personal seal on the sample packets or on the packet
containing the contraband article seized. However, in Ext.P12
forwarding note, a specimen seal is seen given. This Court in
Bhaskaran K. v. State of Kerala, 2020 KHC 5296 has held that
the nature of the seal used by the detecting officer shall be
mentioned in the seizure mahazar and the specimen of the seal shall
be produced in the court so as to enable the court to satisfy itself of
the genuineness of the sample produced in the court. In Rajamma
v. State of Kerala, 2014 (1) KLT 506, this Court has held that if
the specimen of the seal affixed on the bottle containing the sample
is not produced before the Court and forwarded to the chemical
examiner for verification to ensure that the sample seal so provided
is tallying with the seal affixed on the sample, no evidentiary value
can be attached to the chemical analysis report. In Ramachandran
v. State of Kerala, 2021 (1) KLT 793 while dealing with a case in
which the forwarding note for sending the sample to the laboratory
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was not produced and marked, it has been held that the prosecution
cannot establish the tamper-proof dispatch of the sample to the
laboratory as there is no satisfactory link evidence to show that it
was the same sample that was drawn from the contraband seized
that eventually reached the Chemical Examiner's laboratory.
Further, a mere production of a laboratory report that the sample
tested was contraband substance cannot be conclusive proof by
itself. The sample seized and the sample tested have to be co-
related. (See also Vijay Pandey v. State of Uttar Pradesh, AIR
2019 SC 3569).
16. Further, PW8, the investigating officer himself is
doubtful as to whether the incident had taken place at the place of
occurrence as alleged by PW1. According to PW8, he had doubts
about the same and hence he filed a request for further investigation
under Section 173(8) Cr.P.C. What happened to the same is not
clear from the materials before me. The prosecution has a case that
PW8 is a man without integrity and it was because he was not
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promoted as Superintendent of Police, he deposed falsely that he
had doubts about the place of occurrence. But the version of PW8
is that his superior officer was constantly harassing him for no
reason. The promotion due to him was not given to him. He was
compelled to give a final report as per the directions of the superior
officer. In the light of the testimony of PW8, two possibilities are
there. One is that PW8 may be speaking the truth or he may be
speaking falsehood. Either way, it would go to the benefit of the
accused. Admittedly, there is non compliance of the mandatory
provisions of Section 52A of the Act. This coupled with the
unsatisfactory evidence on record does not inspire confidence in the
mind of the court for arriving at the guilt of the accused. In such
circumstances, I find that the accused/appellant is entitled to benefit
of doubt.
In the result, the appeal is allowed and the conviction and
sentence imposed against the appellant by the trial court for the
offence punishable under Section 20(b)(ii)(B) of the Act is set
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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
NP
