Radhakrishnan @ Ambros vs State Of Kerala
2025 Latest Caselaw 3756 Ker

Kerala High Court

Radhakrishnan @ Ambros vs State Of Kerala on 7 February, 2025

                                                   2025:KER:9857

          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. 186 OF 2019

  CRIME NO.3/2015 OF EXCISE ENFORCEMENT AND ANTI NARCOTIC

                     SPECIAL SQUAD, ERNAKULAM

     AGAINST THE JUDGMENT DATED 05.02.2018 IN SC NO.887 OF

2015 OF THE COURT OF SESSION,ERNAKULAM

APPELLANT/ACCUSED:

         RADHAKRISHNAN @ AMBROS
         AGED 42 YEARS, C. NO. 3986,
         CENTRAL PRISON AND CORRECTIONAL HOME,
         VIYYUR, THRISSUR

         BY ADVS.
         SRI.P.A.MARTIN ROY
         ATHUL ROY


RESPONDENT/COMPLAINANT:

         STATE OF KERALA
         REPRESENTED BY ITS PUBLIC PROSECUTOR,
         HIGH COURT OF KERALA, ERNAKULAM 682 031

         SMT.SHEEBA THOMAS, PP


     THIS CRIMINAL     APPEAL HAVING   COME UP   FOR HEARING   ON
27.01.2025, THE COURT ON 07.02.2025 DELIVERED THE FOLLOWING:
                                                                 2025:KER:9857
CRL.A NO. 186 OF 2019

                                        2



                                C.S.SUDHA, J.
           --------------------------------------------------------------
                         Crl.Appeal No.186 of 2019
          ---------------------------------------------------------------
                 Dated this the 7th day of February 2025


                              JUDGMENT

In this appeal filed under Section 383 Cr.P.C., the appellant

who is the sole accused in S.C. No.887 of 2015 on the file of the

Court of Session, Ernakulam, challenges the conviction entered and

sentence passed against him for the offence punishable under

Section 21(c) of the Narcotic Drugs and Psychotropic Substances

Act, 1985 (the Act).

2. The prosecution case is that the accused on 20/06/2015 at

06:30 p.m. was found in possession of 45 ampules of

Buprinorphine, a psychotropic substance, which was kept inside his

autorickshaw bearing registration no.KL 07 BL 9423 for the

purpose of sale. The offence was detected by PW1, the Excise

Circle Inspector and his team. Hence, the accused as per the final 2025:KER:9857 CRL.A NO. 186 OF 2019

report/charge sheet is alleged to have committed the offence

punishable under Section 8(c) read with Sections 22(c) and 25 of

the Act.

3. NDPS Crime No.3/2015 was registered by PW1, the

Excise Circle Inspector, Ernakulam, that is, Ext.P2 crime and

occurrence report. The case was investigated by PW4, the then

Excise Circle Inspector, who 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

hearing the accused, who was in custody, framed a charge under

Section 8(c) read with Sections 22(c) and 25 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 5 were examined

and Exts.P1 to P18 and Mos 1 to 5 were got marked in support of

the case. After the close of the prosecution evidence, the accused 2025:KER:9857 CRL.A NO. 186 OF 2019

was questioned under Section 313(1)(b) Cr.P.C. with regard to 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 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 21(c) of the Act and hence sentenced him

to undergo rigorous imprisonment for a period of 10 years and to a

fine of ₹1,00,000/- and in default of payment of fine to undergo

rigorous imprisonment for 12 months. Set off under Section 428

Cr.P.C. has been allowed. Aggrieved, the present jail appeal has

been filed.

2025:KER:9857 CRL.A NO. 186 OF 2019

8. The only point that arises for consideration in this appeal

is whether the conviction entered and sentence passed against the

accused/appellant 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 materials on record are totally

insufficient to find the accused guilty of the offence charged against

him. There is only the testimony of the official witness, namely,

PW1, to support the prosecution case. The independent witnesses

do not support the prosecution case. The conscious possession of

the contraband article by the appellant/accused has not been proved.

Ext.P9 search list shows that it was prepared at 05:45 p.m. The

gazetted officer arrived at the scene only at 06:00 p.m. and

therefore the search of the accused was conducted even before the

gazetted officer reached the scene of occurrence. No evidence

regarding the sale of the psychotropic substance has been adduced

by the prosecution. PW4, the investigating officer, is 2025:KER:9857 CRL.A NO. 186 OF 2019

familiar/acquainted with the accused as there was an earlier case in

which the accused herein was alleged to have committed a similar

offence. In the said crime, PW4 in this case was the detecting

officer and PW1, the investigating officer. In the said case, due to

procedural irregularities committed, the accused came to be

acquitted. Hence, the present false case has been foisted against the

accused. In the earlier case, when the accused was granted bail,

there was a condition that he was to appear before PW1, the

investigating officer. In compliance with the said condition, when

the accused/appellant appeared before PW1, he has been implicated

falsely in this case. There is delay in the sample reaching the

laboratory for chemical examination. In the light of the aforesaid

defects, the accused is entitled to the benefit of doubt, goes the

argument.

11. Per contra, it was submitted by the learned Public

Prosecutor that the materials on record are more than sufficient to

establish the offence alleged against the accused.

2025:KER:9857 CRL.A NO. 186 OF 2019

12. I make a brief reference to the oral and documentary

evidence relied on by the prosecution in support of the case. PW1,

the Excise Circle Inspector, Ernakulam, when examined deposed

that on 20/06/2015 while he and his team was conducting patrolling

in the department jeep, found an autorickshaw bearing registration

no. KL 07 BL 9423 parked near CST Canteen, Udayanagar road.

The accused was the driver of the said vehicle. As the accused had

an earlier NDPS case registered against him, PW1 decided to

search the autorickshaw. On searching the autorickshaw, a plastic

kit containing 39 ampules was seen concealed in the autorickshaw.

All the ampules contained a colourless liquid. The accused when

asked about the same, confessed that it was Buprenorphine. PW1

then informed the accused that he wanted to conduct a body search

and whether he required the presence of a magistrate or a gazetted

officer. This was given to him in writing, that is, Ext.P6. The

accused gave Ext.P5 reply as per which he stated that he did not

require the presence of a gazetted officer. As the presence of a 2025:KER:9857 CRL.A NO. 186 OF 2019

gazetted officer was found necessary, PW1 requested the presence

of PW4, Circle Inspector, Excise Enforcement and Anti-Narcotic

Special Squad, Ernakulam. On arrival of PW4, when a body search

of the accused was conducted in the presence of independent

witnesses, six more ampules concealed in a cigarette packet were

seized from the left shirt pocket of the accused. None of the

ampules, that is, the ampules recovered from the plastic kit inside

the autorickshaw as well as the ampules found in the pocket of the

accused, had any label. He arrested the accused. Three ampules

seized from the pocket of the accused and two ampules from the 39

ampules seized from the autorikshaw were taken as samples and

separately wrapped in cotton, secured with cello tape and put in a

polythene cover, which cover in turn was put in a brown cover and

sealed. The brown cover was fastened with twine and the personal

seal of PW1 affixed on the same. The two sample packets prepared

were given the markings 'S1' and 'S2'. The seizure, packing, sealing

and labelling were done in the presence of the witnesses and the 2025:KER:9857 CRL.A NO. 186 OF 2019

accused. The remaining ampules seized were also packed, sealed

and labelled and the marking 'P1' given. On the labels, the

signature of the accused and the witnesses were obtained. The

plastic kit in which the ampules were found inside the autorickshaw

and the cigarette packet was also seized and packed. PW1 also

prepared an inventory relating to the autorickshaw from which the

contraband was seized. Thereafter, he registered the crime, that is,

Ext.P2 crime and occurrence report. Ext.P1 is the mahazar prepared

by him contemporaneously at the spot. Exts.P3 and P4 are the

arrest memo and arrest intimation prepared by him when the

accused was arrested. PW1 identified the accused before the court.

He also deposed that Ext.P16 is the report given by him to his

superior officer relating to the arrest and seizure.

12.1. PW2, an independent witness, admitted his signature in

Ext.P1 seizure mahazar alleged to have been prepared

contemporaneously by PW1 when the contraband was seized.

However, he deposed that he had not seen the excise party 2025:KER:9857 CRL.A NO. 186 OF 2019

recovering anything from the accused. PW2 deposed that he knew

the accused and that the incident happened in front of the house of

the accused.

12.2. PW3, another independent witness, deposed that he had

seen the excise team conducting checking. A crowd had gathered at

the spot and when he went near the crowd, he saw that the excise

team had restrained the accused. They had seized something from

the accused. (അപ്പോൾ Excise കാർ കൂട്ടിൽ നിൽക്കുന്ന രാധാകൃഷ്ണനെ

തടഞ്ഞുനിർത്തിയിരിക്കുന്നത് കണ്ടു. അയാളിൽ നിന്ന് എന്തൊക്കെയോ

പിടിച്ചിരുന്നു). He identified his signature in Ext.P1, Ext.P3 arrest

memo as well as in Ext.P9 search list.

12.3. PW4, Circle Inspector, Excise Anti-Narcotic Special

Squad, Ernakulam, the investigating officer deposed that he had

received Ext.P7 request from PW1 based on which he went to the

scene of occurrence. In his presence, PW1 had conducted a body

search of the accused and on search seized Buprenorphine injection

ampules from the shirt pocket of the accused. According to PW4, 2025:KER:9857 CRL.A NO. 186 OF 2019

he had reached the scene of occurrence by 06:00 p.m. and it was

thereafter the body search of the accused had been conducted.

12.4. Finally, PW5, Motor Vehicle Inspector, Regional

Transport Office, Ernakulam, deposed that he had handed over the

registration particulars of the autorickshaw bearing registration

no.KL 7 BL 9423 to the investigating officer and as per records, the

vehicle stands in the name of the accused herein. The RC

particulars have been marked as Ext.P18.

13. It is true that provisions of Section 52A of the Act has

not been complied with. It is also true that the confession alleged to

have been made by the accused to PW1 is inadmissible in evidence.

However, there is the testimony of PWs 1 and 3 to support the

prosecution case. PW3 is an independent witness who supports the

prosecution case. As held by the Apex Court in Bharat Aambale vs

State Of Chhattisgarh, 2025 SCC OnLine SC 110, mere

noncompliance of the procedure under Section 52A or the Standing

Order(s)/Rules thereunder will not be fatal to the trial unless there 2025:KER:9857 CRL.A NO. 186 OF 2019

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 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 NDPS 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. Hence, I will consider 2025:KER:9857 CRL.A NO. 186 OF 2019

whether the materials on record adduced by the prosecution oral

and documentary, inspires confidence in the mind of this Court as

regards the recovery as well as conscious possession of the

contraband by the accused.

14. In the case on hand, PW1, the detecting officer, did not

draw any sample from the ampules seized from the accused. He had

seized 45 ampules, that is, 39 ampules from inside the autorickshaw

and 6 from the shirt pocket of the accused. There were no label(s)

on the ampules seized. From the 6 ampules seized from the pocket

of the accused, 3 ampules were taken as samples. From the 39

ampules seized from the autorickshaw, 2 ampules were taken as

samples. The said samples were packed in different packets, sealed

and labelled. The remaining 35 ampules were packed separately,

which was also sealed and labelled. The specimen of the seal

affixed on the sample packets as well as the packet containing the

remaining ampules has been given in Ext.P1 mahazar. The

contraband articles were produced before the court on 22/06/2015.

2025:KER:9857 CRL.A NO. 186 OF 2019

The sample packets were directed to be sent for chemical

examination and the other items in Ext.P11 property list were

directed to be retained in the court in safe custody. Ext.P14

forwarding note also contains the specimen seal impression which

tallies with the one seen in Ext.P1 mahazar.

15. The packet containing 35 ampules was opened during

the trial before the court. The packet was found intact with the

twine, the personal seal and label in place. Inside the packet, 35

ampules wrapped in cotton and kept inside the polythene cover

were found. The brown cover was marked as MO1 and the

polythene cover containing 35 ampules was marked as MO2 series.

The plastic cover as well as the cigarette packet were marked as

MO3 and MO4 respectively. Ext.P17 chemical report says thus:-

"One sealed brown paper packet labelled "CRIME 3/15 of E.C.O

Ernakulam (Marked as S1 & S2) T-56/15" having two sealed

brown paper packets marked as S1 and S2 and each labelled

"Excise Circle Office, Ernakulam NDPS CR.3/2015 etc" and each 2025:KER:9857 CRL.A NO. 186 OF 2019

having a heat sealed polythene cover containing five unlabelled

ampules each with yellow ring (total ten ampules marked as 1(1) to

1(5) and 2(1) to 2(5) in the laboratory) each containing 2ml of

clear colourless liquid alleged to be narcotic drug involved in

NDPS CR No.3/15 of Excise Circle Office, Ernakulam for chemical

analysis." The result of the chemical examination reads thus:-

"Buprenorphine hydrochloride, a Narcotic Analgesic, was detected

in all the ten ampules contained in the packets marked as 'S1 and

S2'. Buprenorphine comes under the purview of the Narcotic Drugs

and Psychotropic Substances Act, 1985."

16. Ext.P9 search list is regarding the search of the

autorickshaw of the accused and not relating to his body search. It

was only after the autorickshaw was searched and the contraband

seized that PW1 decided to conduct a body search also of the

accused and hence sought the services of PW4 who arrived at the

spot at 06:00 p.m. It was thereafter, the body search of the accused

was conducted by complying with the necessary formalities.

2025:KER:9857 CRL.A NO. 186 OF 2019

Therefore, the argument that the personal search of the accused was

conducted even before PW4 reached the spot is apparently not

correct.

17. Yet another argument advanced is that the prosecution

has failed to prove that the accused was in conscious possession of

the contraband. The testimony of PW5 proves that the autorickshaw

involved in the incident belongs to the accused and that it stands in

the name of the accused. The testimony of PW3 shows that the

excise party had restrained the accused in front of his house on the

said day and had seized some articles from him. This testimony

corroborates the testimony of PW1 that it was contraband articles

that had been seized from the autorickshaw belonging to the

accused. The accused does not have any explanation as to how the

contraband articles were found in the autorickshaw owned and

possessed by him. Therefore, it is clear that there was conscious

possession of the contraband by the accused person. This fact is

further substantiated by the fact that a few ampules were seized 2025:KER:9857 CRL.A NO. 186 OF 2019

from the shirt pocket of the accused also. The testimony of PW1

has not been discredited. On going through the cross-examination, I

find no challenge on the material aspects deposed by PW1. The

testimony of PW1 is supported by the testimony of PW3, an

independent witness. Therefore, there is nothing to disbelieve the

prosecution case. Though there is no compliance with Section 52A,

the evidence on record shows that the sample packets as well as the

entire remaining contraband had been produced before the court.

During trial, the packet containing the remaining ampules was

found to be sealed and intact, and on opening it, it was found to

contain 35 ampules. This also substantiates the testimony of PW1.

The report of the chemical examiner, namely, Ext.P17, shows that

the ampules in fact contained Buprenorphine, a psychotropic

substance.

In these circumstances, I find that the prosecution has been

able to establish the offence charged against the accused. I find no

infirmity in the findings of the trial court calling for an interference 2025:KER:9857 CRL.A NO. 186 OF 2019

by this Court. Therefore, the appeal sans merit is thus dismissed.

Interlocutory applications, if any pending, shall stand closed.

Sd/-

C.S.SUDHA JUDGE NP