Kerala High Court
Shameer vs State Of Kerala on 7 February, 2025
Crl.Appeal No.250 of 2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 7TH DAY OF FEBRUARY 2025 / 18TH MAGHA, 1946
CRL.A NO. 250 OF 2014
AGAINST THE JUDGMENT DATED 11.06.2013 IN SC NO.15 OF
2012 OF SPECIAL COURT (NDPS ACT CASES), THODUPUZHA
APPELLANT/ACCUSED:
SHAMEER
S/O. BASHEER, THAIKKAVUPURAYIDOM VEETTIL,
JUBILEE ROAD, CONVENT SQUARE BHAGAM,
ALAPPUZHA PADINJARU, AMBALAPUZHA TALUK,
ALAPPUZHA DISTRICT.
BY ADVS.
SRI.S.SANAL KUMAR
SMT.BHAVANA VELAYUDHAN
SMT.T.J.SEEMA
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SRI.VIPIN NARAYAN, PUBLIC PROSECUTOR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
27.01.2025, THE COURT ON 07.02.2025 DELIVERED THE
FOLLOWING:
Crl.Appeal No.250 of 2014
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C.S.SUDHA, J.
---------------------------------------------
Crl.Appeal No.250 of 2014
---------------------------------------------
Dated this the 7th day of February 2025
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C. the
appellant who is the sole accused in S.C.(NDPS) No.15/2012 on
the file of the Court of the Special Judge for Narcotic Drugs and
Psychotropic Substances Act Cases, Thodupuzha, challenges the
conviction entered and sentence passed against him for the
offence punishable under Section 22(c) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (the Act).
2. The prosecution case is that on 23/06/2010 at
03:20 p.m. PW4, the Excise Inspector, Excise Enforcement and
Anti-narcotic Special Squad, Kottayam found the accused in
possession of 29 ampules labelled Buprenorphine injection IP,
Lupigesic, each ampule containing 2ml. The place of occurrence
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is stated to be in front of Rotary Club, Changanassery near the
Bypass junction Palathara, Vazhappally kara by the side of M.C.
Road. Hence as per the final report, the accused was alleged to
have committed the offence punishable under Section 22(c) of the
NDPS Act.
3. Crime no.5/2010, Excise Enforcement and Anti-
narcotic Special Squad, Kottayam was registered by PW5, Circle
Inspector, Excise Enforcement and Anti-narcotic Special Squad,
Kottayam, that is, Ext.P14 crime and occurrence report when the
accused, contraband and the documents prepared
contemporaneously was handed over to him by PW4. PW6, the
Circle Inspector, Excise Enforcement and Anti-narcotic Special
Squad, Kottayam, the investigating officer in the case, conducted
the investigation and on completion of investigation submitted the
final report alleging the commission of the offence punishable
under the above-mentioned section.
4. On appearance of the accused before the trial
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court, a charge under Section 22(c) of the NDPS Act was framed,
read over and explained to the accused to which he pleaded not
guilty.
5. On behalf of the prosecution PW1 to PW6 were
examined and Exts.P1 to P17 and MO.1 to MO.3 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.
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 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
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punishable under Section 22(c) of the NDPS Act and hence
sentenced him to rigorous imprisonment for 17 years and to pay a
fine of ₹1,50,000/- and in default to rigorous imprisonment for
one year. Set off for the period from 23/06/2010 till 17/05/2011
and from 14/03/2013 till the date of judgment has been granted.
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. When the matter was taken up for hearing, there
was no representation for the accused. Hence Adv. Athul Paulose
was appointed as State Brief. Heard both sides.
10. It was submitted by the learned counsel for the
appellant/accused that there has been a total non-compliance of
the mandatory provisions of Section 52A as well as Section 57 of
the NDPS Act and hence the accused is entitled to be acquitted.
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In support of this argument, reference was made to the dictums in
Union of India v. Mohanlal, 2016 ICO 558 ; Shameer v. State
of Kerala, 2019 (3) KLJ 245 and an unreported judgment dated
23/10/2024 of a learned Single Judge of this Court in Crl.Appeal
No.291/2019 (Muhammed Muslim v. The Intelligence Officer,
Narcotic Control Bureau, Sub Zone, Kakkanad, Cochin). Per
contra, it was submitted by the learned public prosecutor that
there has been substantial compliance of all the mandatory
provisions and hence the impugned judgment does not call for any
interference.
11. The prosecution relies on the testimony of PW4,
the detecting officer to prove the incident. PW4 deposed that on
23/06/2010 by 02:00 p.m., he received a telephonic message from
Anand Raj, Excise Guard that there were chances of a person
named Shameer coming to Palathara bypass junction,
Changanassery with ampules of narcotic drugs/psychotropic
substances. He was also informed of the identification marks of
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the said person. He reduced the information into writing, that is,
Ext.P5, which was forwarded to PW5, his superior officer. He
also reduced the grounds of belief into writing, that is, Ext.P6
which was also forwarded to his superior officer. He then
intimated the matter to the Assistant Commissioner and requested
the services of Anand Raj, the Excise Guard who had given the
information. Pursuant to the same, he, along with his team and
Anand Raj proceeded to the place of occurrence where he reached
by about 02:40 p.m. The department vehicle was parked in the
compound of a petrol pump situated on the eastern side of bypass
junction, Palathara. By about 02:50 p.m. a KSRTC bus arrived at
the junction, from which a man carrying a white plastic cover
alighted from the bus. Anand Raj identified the said person as
Shameer, the accused in this case. Seeing the Excise party, the
accused tried to take to his heels. He and his team pursued the
accused and apprehended the latter. On questioning the accused,
he admitted to the possession of narcotic drug/substance. In the
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presence of witnesses, MO.1 plastic cover seen in the possession
of the accused when examined was found to contain 26 ampules
labeled Buprenorphine injection IP Lupigesic, with batch numbers
and statutory warning. In addition to the said 26 ampules, three
ampules were found broken. From the 26 ampules which were not
broken, three ampules were taken and separately packed, sealed
and labelled and the marking 'S' given. The remaining 23
unbroken ampules and the three broken ampules were packed,
sealed and labelled separately, that is, MO.3. He as well as the
witnesses and the accused put their signatures on the label. The
accused was thus found in possession of 52 ml buprenorphine, a
psychotropic substance and so he was arrested.
12. PW1 and PW2, the independent witnesses admit
their signatures in Ext.P1 mahazar prepared by PW4. However,
both turned hostile and denied the presence of the accused on the
spot on the relevant day. They denied having seen PW4 seizing
the contraband articles from the accused. However, they admitted
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that the Excise party had shown them the ampules saying that they
had been seized from the accused.
12.1. PW5, Circle Inspector, Excise Enforcement and
Anti-narcotic Special Squad deposed that he is the immediate
superior officer of PW4. Ext.P13 is the covering letter given by
PW4 along with Ext.P5. PW4 had produced the accused; the
contraband articles and the connected documents before him
based on which he registered the crime. Ext.P4 is the crime and
occurrence report prepared by him. Ext.P15 is the copy of the
forwarding note submitted by him for sending the samples for the
chemical examination.
12.2. PW6, Circle Inspector, Excise Enforcement and
Anti-narcotic Special Squad, Kottayam, the investigating officer,
deposed that he had conducted the investigation and submitted the
charge sheet before the court. Ext.P17 is the report of the
chemical examination which shows that the ampules seized from
the accused contained buprenorphine.
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13. Going by the testimony of PW4, pursuant to the
seizure he had not drawn any samples from the ampules but had
only taken three ampules from out of the 26 ampules which were
unbroken and packed them separately. The materials on record
show that it was the said ampules that were forwarded for
chemical examination. The remaining ampules, that is, MO.3 was
produced before the court.
14. In Mohanlal (Supra), the Apex court after
referring to Section 52A held that it is manifest from Section
52A(2) that upon seizure of the contraband, the same has to be
forwarded either to the officer in-charge of the nearest police
station or to the officer empowered under Section 53 who shall
prepare an inventory as stipulated in the said provision and make
an application to the magistrate for purposes of (a) certifying the
correctness of the inventory (b) certifying photographs of such
drugs or substances taken before the magistrate as true and (c) to
draw representative samples in the presence of the magistrate and
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certifying the correctness of the list of samples so drawn. Sub-
section (3) of Section 52-A requires that the magistrate shall, as
soon as may be, allow the application. This implies that no sooner
the seizure is effected and the contraband forwarded to the officer
in charge of the Police Station or the officer empowered, the
officer concerned is in law duty bound to approach the magistrate
for the purposes mentioned above including grant of permission to
draw representative samples in his presence, which samples will
then be enlisted and the correctness of the list of samples so drawn
certified by the magistrate. In other words, the process of drawing
samples has to be in the presence and under the supervision of the
magistrate and the entire exercise has to be certified by him to be
correct. The question of drawing of samples at the time of seizure
which, more often than not, takes place in the absence of the
magistrate does not in the above scheme of things arise. This is so
especially when according to Section 52-A (4) of the Act, samples
drawn and certified by the magistrate in compliance with sub-
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section (2) and (3) of Section 52-A above constitute primary
evidence for the purpose of the trial. Suffice it to say that there is
no provision in the Act that mandates taking samples at the time
of seizure.
15. Relying on the aforesaid dictum, the argument
advanced by the learned counsel for the accused/appellant is that
the accused is entitled to be given the benefit of doubt as the
mandatory provisions contemplated under Section 52A have not
been complied with. Per contra, the learned Public Prosecutor
relied on the dictum of the Apex court in Bharat Aambale v.
State of Chhattisgarh, Crl.Appeal No.250/2025 arising out of
SLP(CRL) No.14420/2024 dated 06/01/2025 in which case the
Apex court after referring to the several precedents on the point
including Mohanlal (Supra), held that mere noncompliance 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
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prosecution's case doubtful, which may not have been there, had
such compliance been done. Courts must take a holistic and
cumulative view of the 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 NDPS Act. Noncompliance 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
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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 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.
15.1. In answer, the learned counsel for the
accused/appellant pointed out that the remaining evidence on
record in the case on hand is also unsatisfactory to establish the
offence charged against the accused. Ext.P1 mahazar alleged to
have been prepared contemporaneously by PW4, does not refer to
the colour of the liquid seen in the ampules. The mahazar does
not contain or describe in detail the contents of the ampules
alleged to have been seized from the accused. PW1 and PW2, the
independent witnesses do not support the prosecution case. They
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deposed that they did not see the accused on the said day. As per
Ext.P1 mahazar, when three ampules were taken as sample, the
same was packed, sealed, labelled and the marking 'S ' given.
However, neither Ext.P15 forwarding note nor Ext.P17 chemical
report refers to the marking 'S ' that is alleged to have been given
by PW4. The contraband is alleged to have been seized on
23/06/2010. It was produced before the court on 24/06/2010. As
per the covering letter seen along with Ext.P15 forwarding note,
the sample was forwarded to the laboratory for chemical
examination on 27/07/2010. The same was received in the
laboratory only on 28/07/2010. The delay in forwarding the
sample for the chemical examination has not been explained.
These factors coupled with the noncompliance of Section 52A of
Act raise doubts about the prosecution case and therefore the
accused is entitled to be given the benefit of doubt, goes the
argument.
16. As held in Bharat Aambale (Supra) in the light
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of the non-compliance of Section 52A of the Act, I shall consider
whether the other materials on record relied on by the prosecution,
oral or/and documentary inspire confidence in the mind of the
court and satisfies the court as regards the recovery as well as
conscious possession of the contraband by the accused.
17. PW4 in Ext.P1 mahazar says that the accused
was found in possession of a white plastic cover (MO.1) which on
examination was found to contain several ampules in the form of
injections. PW4 took them out of MO.1 cover and each of them
was examined in detail. The ampules had labels which read - "2
ML -Buprenorphine injection IP Lupigesic, Batch No. SLS 959
October 2009 - September 2011 - 1457 Lupin LTD 159, GST
Road, Kallana, Santha Cruze (E) Mumbai, India. Warning: The
Drug has potential for abuse and should be sold and used under
strict Medical Supervision only." PW4 on counting the ampules,
found that there were 26 ampules each containing 2 ml. of
buprenorphine injection. Apart from the said 26 ampules, there
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were three ampules which were found broken. On checking the
quantity in the ampules, it was found to contain 2 ml each, that is,
2 ml x 26 ampules, which is equal to (2x26=52) 52 ml, that is, 52
gms. It is further stated that out of the 26 unbroken ampules,
three ampules were separately packed, sealed and labelled. The
remaining 23 ampules were separately packed, sealed and
labelled, that is MO.3. The packet containing the samples and the
packet containing the remaining ampules were produced before
the court on 24/06/2010. The sample packet was sent along with a
covering letter of the court on 29/07/2010 for chemical
examination. Ext.P15 forwarding note contains the specimen seal
as well as the impression of seal affixed by PW4 in Ext.P1
mahazar. The packet containing the remaining 26 ampules was
forwarded on the same day by the trial court to the Assistant
Commandant, Godown Officer, AR Camp, Kottayam for safe
custody. This was produced before the court during the trial and
marked as MO.3. The covering letter of the trial judge seen along
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with Ext.15 forwarding note says that sealed packet containing
Buprenorphine Lupigesic ampules having a quantity of 6ml. along
with the forwarding note duly countersigned by the trial judge is
being forwarded through Sri. Lebimon K.S., Excise Guard,
attached to EE & ANSS, Kottayam. Ext.P17 chemical analysis
report reads -
"With reference to Letter No. DNo.1375/10(T18/10) dated
27.7.10. received from the Special Judge, NDPS Cases,
Thodupuzha. I hereby certify that I duly received through
Police Constable No./Excise Guard No. Lebimon on the
Twenty eighth day of July-2010 the article herein referred
to and as indicated below.
(Receipt No.3951/2010)
One sealed brown paper packet labelled "T 18/2010 of
Special Court for NDPS cases Thodupuzha Cr.No.5/2010
of EE & ANSS Kottayam..." having a sealed brown paper
packet labelled "T.No.18/2010, Cr.No.5/2010 of EE &
ANSS Kottayam...." having another sealed brown paper
packet, containing three ampules of Buprenorphine with
printing as "Buprenorphine Injection IP LUPIGESIC -
each ml contains buprenorphine as buprenorphine
hydrochloride 0.3mg, SLS-959,...." each containing 2ml of
clear colourless liquid involved in NDPS CR.No.5/2010 of
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Excise Enforcement and anti Narcotic Special Squad
Kottayam for chemical analysis.
The seals on the packets were intact and found tallied with
the sample seals provided."
The Chemical Examiner in Ext.P17 reports thus- "Buprenorphine
a narcotic analgesic was detected in the samples. The samples
contained 0.28 mg of buprenorphine as buprenorphine
hydrochloride in 1 millilitre of preparation". In Ext.P1 mahazar,
the quantity of the psychotropic substance seized is stated to be
52 ml, that is, 52 grams. However, in Ext.P11 property list, item
no.1 is described thus -
1. Buprenorphine Injection IP, എന Lupigesic എന ല ബൽ പത ച 2ml. ൻറ
29 ആ പ ള കള ൽ ന ന 3 ആ പ ള കൾ (6 milligram) സ മ ൾ എട ത 46
ല ഷ റപ ട യ 3 ആ പ ള കൾ ഉൾപറട 26 ആ പ ള കൾ. ട milligram
ആ പ ള കൾ റതർല# ലക ൾ റപട യ ടക റ%യ'( ബബ*ൺ ലപപർ
റക ണ( റപ ത ഞ(ന ൽറക ണ( റനട കയ ക റകയ റകട സ.ൽ റ%യ'(
'T' എന( # ർക(റ%യ'ത( - 1(ഒന().
This roughly translated would read - out of the 29 ampules which
were labelled as buprenorphine Injection IP and Lupigesic, three
ampules (6 milligram) were taken as sample and the remaining 26
ampules including three broken ampules were placed in a
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thermocol box. The ampules were wrapped in brown paper and
tied with thread which was sealed and marked 'T'.
17.1. Initially the total content against item no.1 in
Ext.P17 was written as 52 milligram, which is seen corrected as
46 milligram. This is the only mistake that is seen in the materials
on record. Apart from this document, the other contemporaneous
records refer to the content as 52ml., that is, 52 grams. The
property list is not a contemporaneous document prepared at the
time of the seizure or at the place of occurrence. Therefore, the
mistake that has crept in is not material in this case and the same
has not affected the prosecution case in anyway. The narration in
Ext.P1 mahazar gives a sufficient description of the contents and
therefore the arguments to the contrary are liable to be rejected.
18. It is true that PW1 and PW2, the independent
witnesses, do not entirely support the prosecution case. They
deposed that they had not seen the accused along with the Excise
party on the said day. But it is pertinent to note that both admitted
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that the Excise team had shown them the ampules which they
identified in the court also. It is not uncommon for independent
witnesses in cases of this nature to turn hostile. That alone is no
ground to disbelieve the prosecution case, provided the testimony
of the prosecution witnesses is credible. On going through the
testimony of PW4, I find no reason to disbelieve him. PW4
deposed that the accused on seeing the Excise team had taken to
his heels. The Excise team chased and apprehended him. The
accused is alleged to have fallen and injured himself during the
course of the chase. On going through the remand report it is seen
that after arrest the accused was produced before the JFCM-I,
Changanassery on 24/06/2010 at 02:30 p.m. He had no
complaints of ill-treatment by the Excise Party. However, the
accused complained that he sustained injuries on his left leg and
abdomen due to a fall. Therefore, the prosecution case that the
accused had taken to his heels and that he had fallen while being
chased and intercepted and had sustained injuries is seen
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corroborated by the statement of the accused to the magistrate. In
the light of the materials on record, even if there has been non-
compliance of Section 52A of the Act, the remaining evidence
adduced by the prosecution does inspire confidence in the mind of
this Court regarding the recovery as well as the conscious
possession of the contraband by the accused.
19. An argument was also advanced that Section 57
of the Act has not been complied with. According to the
prosecution, Ext.P10 is the report sent by PW4 to his immediate
superior officer in compliance with Section 57. In Ext.P10, it is
stated that the accused with 29 Buprenorphine Lupigesic ampules
was arrested from the place of occurrence. As per Section 57 of
the Act, within 48 hours next after the arrest or seizure the
detecting officer is to make a full report of all the particulars of
such arrest or seizure to his immediate superior official. This
according to the defence has not been complied with by PW4 and
hence there is yet another violation of a mandatory provision of
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the Act. The purpose of Section 57 is to provide a check on the
person making the arrest or seizure and to secure fair
investigation. By compliance with this Section, a document is
brought on record at the earliest opportunity and chances of
improving upon the prosecution case are curtailed. It is seen from
Ext.P10 that PW4's superior officer received Ext.P10 report on
23/06/2010 at 09:15 p.m., which is on the very same day. Though
the minute details of the crime have not been stated, a fair
description of the arrest and seizure has been made. The
provisions of Section 57 of the Act is only directory and not
mandatory. There has been substantial compliance of Section 57.
In these circumstances, I find no infirmity in the findings of the
trial court calling for an interference by this Court.
20. Now coming to the sentence that has been
imposed on the accused/appellant. As noticed earlier, the trial
court has sentenced the accused to rigorous imprisonment for a
period of 17 years and to a fine of ₹1,50,000/- and in default to
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rigorous imprisonment for one year. As per Section 22(c), the
minimum sentence is 10 years which may extend to 20 years and
is also liable to fine which shall not be less than 1,00,000/- but
which may extend to ₹2,00,000/-. The learned counsel for the
accused/appellant submitted that in case this court confirms the
conviction, appropriate reduction in the sentence may be given as
the accused has no criminal antecedents. As I find no infirmity in
the findings of the trial court, the conviction of the accused for the
offence under Section 22(c) of the Act is confirmed. As per the
impugned judgment the accused was in judicial custody from
23/06/2010 to 17/05/2011 and thereafter from 14/03/2013
onwards. The sentence of the accused has been suspended by this
Court as per order dated 25/03/2015 which was modified as per
orders dated 26/05/2017 and 11/07/2017. As the appellant/accused
has no criminal antecedents, the substantive sentence of
imprisonment is modified to 10 years.
The appeal is disposed of with the aforesaid
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modification.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
Jms
