Kerala High Court
P.Sakkariya vs The Sub Inspector Of Police on 18 February, 2025
Crl.Appeal No.51 of 2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 18TH DAY OF FEBRUARY 2025 / 29TH MAGHA, 1946
CRL.A NO. 51 OF 2014
AGAINST THE JUDGMENT DATED 04.01.2014 IN SC NO.72 OF
2011 OF SPECIAL COURT (NDPS ACT CASES), VADAKARA.
APPELLANTS/ACCUSED NOS.1 AND 2:
1 P.SAKKARIYA
S/O.MUHAMMED, POTTI HOUSE,
PUZHATHI AMSOM, KUNHIPALLI.
2 M.G.MOHANAN
S/O.GOVINDAN, MEMBELLATH HOUSE,
RAJAKUMARI, NADUMUTTAMKARA,
RAJAKKAD, IDUKKI.
BY ADV SRI.SUNNY MATHEW
RESPONDENTS/COMPLAINANT AND STATE:
1 THE SUB INSPECTOR OF POLICE
KANNUR TOWN POLICE STATION.
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,
PIN 682 031.
SRI.VIPIN NARAYAN, PUBLIC PROSECUTOR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
11/02/2025, THE COURT ON 18/02/2025 DELIVERED THE
FOLLOWING:
Crl.Appeal No.51 of 2014
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C.S.SUDHA, J.
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Crl.Appeal No.51 of 2014
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Dated this the 18th day of February 2025
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the
appellants who are accused no.1 and 2 in S.C.No.72/2011 on the
file of the Court of the Special Judge (NDPS Act Cases),
Vatakara, challenge the conviction entered and sentence passed
against them for the offence punishable under Section 22(b)(ii)
(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985
(the Act).
2. The prosecution case is that on 14/12/2010
while PW3, Circle Inspector of Police, Kannur Town was in his
office, he received reliable information that persons travelling in a
Honda Activa scooter bearing registration no.KL 13 T 6266 from
Kakkad side to Kannur would be carrying/possessing narcotic
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drugs/psychotropic substances. Hence, he along with party
proceeded to the place and apprehended the accused persons. The
first accused was riding the scooter and the second accused was
the pillion rider. They were intercepted at Kannur - Kakkad road
after Palakkad Swamimadam road junction. On inspecting the
bags in their possession, the first accused was found in possession
of 2.090 kgs and the second accused, 1.040 kgs of ganja. As per
the final report/charge sheet, the accused were alleged to have
committed the offences punishable under 20(b)(ii) (B) read with
Section 29 of the Act.
3. PW3, Circle Inspector, Kannur Town, the
detecting officer, registered crime no.1164/2010, that is, Ext.P10
FIR. PW6, Circle Inspector, Kannur City, the investigating
officer, on completion of investigation submitted the final report
alleging the commission of the offence punishable under the
aforementioned section by the accused persons.
4. On appearance of the accused persons, the trial
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court after complying with the formalities contemplated under
Section 207 Cr.P.C., framed a charge under Section 20(b) (ii)(B)
of the Act, which was framed, read over and explained to the
accused persons to which they pleaded not guilty.
5. On behalf of the prosecution, PW1 to PW6 were
examined and Exts.P1 to P15 and MO.1 to MO.4 were marked.
After the close of the prosecution evidence, the accused persons
were questioned under Section 313(1)(b) Cr.P.C. regarding the
incriminating circumstances appearing against them in the
evidence of the prosecution. The accused persons denied all those
circumstances and maintained their innocence.
6. As the trial court did not find it a fit case to
acquit the accused persons under Section 232 Cr.P.C., they were
asked to enter on their defence and adduce evidence in support
thereof. DW1 was examined and Exts.D1 and D2 were marked
on behalf of the accused persons.
7. On consideration of the oral and documentary
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evidence and after hearing both sides, the trial court by the
impugned judgment found the accused persons guilty of the
offence punishable under Section 20(b) (ii)(B) of the NDPS Act
and hence sentenced them to rigorous imprisonment for 5 years
each and to a fine of ₹75,000/- each and in default to rigorous
imprisonment for one year each. Set off under Section 428
Cr.P.C. has been allowed. Aggrieved, the accused persons have
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 appellants/accused persons by the trial court are
sustainable or not.
9. Heard both sides.
10. It was submitted by the learned counsel for the
appellants/accused persons that there has been violation of the
mandatory provisions of Section 42 of the Act and hence the
accused persons are entitled to be acquitted. Per contra, it was
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submitted by the learned public prosecutor that there has been
sufficient compliance of the mandatory provisions and that the
impugned judgment calls for no interference.
11. According to PW3, the detecting officer, when
he received confidential information about the transit of the
contraband, he had reduced the same into writing that is, Ext.P2
and forwarded the same to his superior officer. However, in
Ext.P9 mahazar as well as in Ext.P10 FIR, it is stated that he had
informed his superior officer over phone. Therefore, referring to
Section 42 of the Act, the argument advanced by the learned
counsel for the appellant/accused is that there has been non-
compliance of the statutory provision and hence on the said sole
ground the appellants/accused persons are entitled to be acquitted.
On the other hand, it was submitted by the learned public
prosecutor that PW3 had informed the receipt of the information
over phone to his superior officer. This was sufficient
compliance of Section 42 of the Act. Moreover, the information
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which was reduced into writing, that is, Ext.P2 was forwarded to
the superior officer, which was a subsequent event and hence the
same could not have found a place in Ext.P2 mahazar.
12. Section 42 of the Act says that any officer
referred to in Section 41 or any such officer empowered by the
State, has reason to believe from personal knowledge or
information given by any person and taken down in writing that
any narcotic drug, or psychotropic substance, or controlled
substance in respect of which an offence punishable under this
Act has been committed, then he can enter into and search any
such building, conveyance or place and effect search and seizure.
Therefore, if the officer receives information, then he must reduce
the same into writing and send copy of the same within seventy
two hours to his immediate superior officer. In Ext.P9 mahazar
which is stated to have been prepared contemporaneously at the
scene of occurrence pursuant to the search and seizure, the case of
PW3 is that he had informed his superior over the phone. There
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is no case in Ext.P9 that the information which he is alleged to
have received while in the office was reduced into writing and the
copy of the same forwarded. In Ext.P10 FIR also the case of
PW3 is that on receipt of information he had informed the same
to his superior, that is, to the Dy.S.P., over telephone and then
along with his team proceeded to the place of occurrence.
However, PW3 in the box has a case that on receipt of
information he had informed his superior over phone as well as in
writing, the copy of which is Ext.P2. This is certainly an
improvement made in the story narrated in Ext.P9 and Ext.P10. It
is doubtful whether the information had been reduced into writing
and a copy of the same forwarded to the superior officer before
PW3 is stated to have left for the place of occurrence. This is one
aspect which raises doubts regarding the prosecution case.
13. Admittedly, the provisions of Section 52A of
the Act has not been complied with. In Bharat Aambale v. State
of Chhattisgarh, Crl.Appeal No.250/2025 arising out of
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SLP(CRL) No.14420/2024 dated 06/01/2025, the Apex court
after referring to the 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'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
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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
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. Therefore, I will consider whether the materials on record
are sufficient to find the accused persons/appellants guilty of the
offence alleged against them.
14. PW3, the then Circle Inspector, Kannur Town is
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stated to be the detecting officer. PW1, who is alleged to have
been in his team when he proceeded to the place of occurrence,
was A.S.I. Police Control Room, Thalassery. According to PW1,
on 14/12/2010, he had gone to the office of the Circle Inspector,
Kannur to have a discussion relating to a theft case. While he
was in the office of the Circle Inspector, the latter received
reliable information relating to the transport of narcotic drugs and
as directed by the Circle Inspector, that is, PW3, he had
accompanied him to the scene of occurrence and was present
during the search and seizure. To disprove this fact, the
appellants/accused examined DW1, the SHO, Thalassery police
station. Ext.D1 is the copy of the general diary dated 14/12/2010
of Thalassery police station. Ext.D2 is the copy of the general
diary for the period from 12/12/2010 to 15/12/2010. DW1
deposed that as per Ext.D1, on 14/12/2010 PW1 was on duty with
the Circle Inspector. DW1 did not specify whether the said Circle
Inspector was the Circle Inspector, Thalassery or whether it was
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Circle Inspector, Kannur town. Therefore, the trial court
concluded that PW1 could have been with the Circle Inspector,
Kannur also, that is, PW3. On what basis such a conclusion has
been arrived at is not clear. DW1 was examined specifically to
prove the case of the appellants/accused that PW1 was not with
PW3 on the date of the incident. It is pertinent to note that there
was no cross examination of DW1 by the prosecutor. It appears
that PW1 on the relevant day was with the Circle Inspector,
Thalassery and not with PW3, Circle Inspector, Kannur town.
Therefore, the prosecution case that PW1 was in the team along
with PW3 on the relevant day is highly doubtful.
15. Admittedly, the sampling was done by PW3,
who deposed that he had affixed the seal of the SHO on the
sample packet as well as the packet containing the residue ganja.
No specimen impression of the seal alleged to have been affixed
has been given in Ext.P9 mahazar. The specimen impression of
the seal has not been produced separately also. It is true that
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Ext.P13 copy of the forwarding note contains the specimen
impression of the seal of the SHO. Ext.P15 chemical analysis
report shows that the sample tested was contraband substance.
However, mere production of a laboratory report that the sample
tested is contraband substance cannot be conclusive proof by
itself. The sample seized and that tested have to be correlated.
(See Vijay Pandey v. State Of U.P. , AIR 2019 SC 3569)
16. Here I refer to the dictum of the Division Bench
of this Court in Ravi v. State of Kerala, 2011 (3) KLT 353, in
which it has been held that prosecution has a duty to show that
the sample allegedly drawn from the contraband article, said to
have been seized from the possession of the accused, reached the
hands of the chemical examiner in a full proof condition. It is
true that the said decision was rendered interpreting the
provisions of the Kerala Abkari Act, 1077. The sampling
procedure followed by the officer concerned under both the Acts
are more or less the same. Here though PW3, who is stated to
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have drawn samples from the contraband seized from the accused
says that he had affixed the seal of the SHO on the sample packet
as well as the packet containing the residue, the specimen
impression of the seal has not been given in Ext.P9 mahazar. He
has also not produced the same separately. Therefore, when the
specimen of the seal affixed on 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 attracted to the
to the chemical analysis report. Ext.P15 chemical report despite
the absence of the sample seal being provided, it is certified that
the seal of the sample cover was intact and that it tallied with the
sample seal provided. It is true that Ext.P13 forwarding note
refers to a specimen seal. But there are no materials to ascertain
whether this was the sample seal affixed on the sample. No
evidentiary value can be given to Ext.P15 chemical report in the
absence of any link evidence to show that the very same sample
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which was drawn from the contraband article allegedly seized
from the possession of the accused reached the hands of the
chemical examiner. In these circumstances, I find that the
accused persons are entitled to the benefit of doubt.
In the result, the appeal is allowed and the conviction
and sentence imposed against the appellants by the trial court for
the offences punishable under Section 20(b) (ii)(B) of the Act is
set aside. The accused persons are acquitted under Section 235(1)
Cr.P.C. They are set at liberty and their bail bond shall stand
cancelled.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
Jms
