Kerala High Court
Sajir @ Sajith vs State Of Kerala on 28 February, 2025
Crl.Appeal No.343 of 2016
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 28TH DAY OF FEBRUARY 2025 / 9TH PHALGUNA, 1946
CRL.A NO. 343 OF 2016
AGAINST THE JUDGMENT DATED 06.02.2016 IN SC NO.84 OF
2012 OF SPECIAL COURT (NDPS ACT CASES), VADAKARA.
APPELLANT/ACCUSED:
SAJIR @ SAJITH,
AGED 32 YEARS,
S/O.HUSSAIN, KANIYANGATTIL HOUSE,
KUTTAMANGALM, MUTTIL, WAYNAD.
BY ADV SRI.NIREESH MATHEW
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
25.02.2025, THE COURT ON 28.02.2025 DELIVERED THE
FOLLOWING:
Crl.Appeal No.343 of 2016
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C.S.SUDHA, J.
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Crl.Appeal No.343 of 2016
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Dated this the 28th day of February 2025
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C. the
appellant, the sole accused in S.C.No.84/2012 on the file of the
Court of the Special Judge for Narcotic Drugs and Psychotropic
Substances Act Cases, Vatakara, 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 09/09/2010 at
05:30 a.m., the accused was found in possession of 478 ampules
of Diazepam injection Starlium, 441 ampules of Buprenorphine
Injection IP Lupigesic and 42 ampules of Phenergan
Hydrochloride injection. Hence, the accused as per the final
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report/charge sheet is alleged to have committed the offence
punishable under Section 22(b) of the Act.
3. Crime no.580/2010, Kalpetta police station, that
is, Ext.P5 FIR, was registered by PW1, the then Sub Inspector.
The investigation was conducted by PW5, the Circle Inspector,
Kalpetta, 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. When the accused appeared before the trial
court, a charge under Section 22(c) of the Act was framed, 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 P17 and MO.1 to MO.16 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. with
regard to the incriminating circumstances appearing against him
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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
punishable under Section 22(c) of the Act and hence convicted
him under Section 235(1) Cr.P.C. for the said offence and
sentenced him to rigorous imprisonment for 15 years and to a fine
of ₹1 lakh and in default, to rigorous imprisonment for one year.
Set off under Section 428 Cr.P.C. has 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
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against the accused/ appellant by the trial court are sustainable or
not.
9. Heard both sides.
10. It was submitted by the learned counsel for the
accused/appellant that there has been a total lack of compliance of
Section 52A of the Act. The remaining evidence on record is
also not satisfactory to find the accused guilty of the offence
alleged against him. There is considerable delay in the
contraband articles reaching the court. Hence the
accused/appellant is entitled to the benefit of doubt and to be
acquitted. Per contra, it was submitted by the learned Public
Prosecutor that the materials on record are sufficient to find the
accused guilty of the offence alleged against him.
11. I would make a brief reference to the oral and
documentary evidence relied on by the prosecution in support of
the case. PW1, the Sub Inspector, Kalpetta police station,
deposed that on 09/09/2010 at 01:10 hours he received
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information that a person named Sajir wearing a green colour
shirt and black jeans travelling in a bus from Mysore to Kalpetta
was carrying narcotic drug/psychotropic substance in the form of
ampules. He recorded the information received in the GD. He
also reduced the same into writing, that is, Ext.P1 which was
forwarded to PW5, the Circle Inspector, his immediate superior
officer. Thereafter, he along with party proceeded to the place
and waited there. By about 05:30 am, a bus named 'Kalpaka'
came from the Bathery side. A person fitting the description in
the information received by him, alighted from the bus and
walked towards the autorickshaw stand. PW1 and party quickly
intercepted and questioned the accused in the presence of the
autorickshaw driver. The passenger who alighted from the bus,
that is, the accused herein, made an attempt to hide the bag in his
possession. PW1 informed the accused that he had come on
receiving information that the accused was in possession of
narcotic drugs/psychotropic substances and that he wanted to
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search him. PW1 apprised the accused of his right to be searched
in the presence of a gazetted officer or magistrate. However the
accused gave in writing, that is, Ext.P2, that he did not want the
presence of the said officials and that PW1 may proceed to search
him. When the bag in the possession of the accused was searched,
it was found to contain 3 plastic covers in which several ampules
were found. There were 478 ampules of Diazepam of 2 ml each
; 441 Lupigesic capsules and 42 Phenergan ampules. From the
aforesaid contraband, 5 ampules each were taken as samples. In
addition to the aforesaid contraband articles, 3 sterilium water for
injection of 10 ml each were also found inside the cover. The
contraband articles were seized as per Ext.P4 seizure mahazar.
The accused was arrested and thereafter PW1 proceeded to the
police station along with the accused, the contraband articles and
the contemporaneous records and registered Ext.P5 FIR. Ext.P6
is the Section 57 report prepared by him. The contraband articles
were produced before the court as per Ext.P7 property list.
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Ext.P8 is the seizure mahazar as per which he seized the clothes,
that is, MO.15 and MO.16, of the accused. Ext.P9 is the report
given by him to correct the colour of the pants of the accused
referred to in the FIR which was a mistake.
11.1. PW2, Head Constable, Kalpetta police station,
who is stated to have been in the team along with PW1, supported
the prosecution case and he deposed in tune with the testimony of
PW1.
11.2. PW3, a police constable, is an attestor to
Ext.P8 seizure mahazar. PW4, village officer, was examined to
prove Ext.P10 scene plan. Finally, PW5 is the Circle Inspector,
Kalpetta, who conducted the investigation and on completion of
investigation, submitted the charge sheet before the court.
11.3. CW6 and CW7 are the independent witnesses.
However, they could not be examined because despite repeated
processes including warrants being issued, the prosecution was
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unable to produce them before the court. Therefore, there is only
the testimony of PW1 and PW2, the official witnesses to support
the prosecution case.
12. Now the question is whether the testimony of
PW1 and PW2 and the records which are alleged to have been
contemporaneously prepared are sufficient to prove the charge
against the accused. Admittedly, the provisions of Section 52A of
the Act has not been complied with. As held by the Apex Court
in Bharat Aambale v. State of Chhattisgarh, Crl.Appeal
No.250/2025, mere non-compliance of Section 52A of the Act is
no ground to throw out the entire prosecution case, if there are
sufficient materials on record to inspire confidence in the mind of
the Court and satisfy the Court regarding the recovery as well as
conscious possession of the contraband by the accused. PW1 in
Ext.P1 mahazar as well as in the box deposed that the samples as
well as the remaining contraband articles on being seized were
packed, sealed and labelled. However, the mahazar does not
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describe the seal alleged to have been affixed by PW1 on the
samples and the packet containing the residue. The mahazar also
does not contain the specimen impression of the seal alleged to
have been affixed. It was submitted by the learned public
prosecutor that though ExtP4 seizure mahazar does not contain a
description of the seal or the specimen impression of the seal,
Ext.P7 property list contains the impression of the seal affixed by
PW1. On examining Ext.P7 property list, the impression of the
seal affixed is not quite legible. 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. This course has apparently
not been followed by PW1.
13. PW1 has also not separately produced the
specimen of the seal affixed on the samples and the packet
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containing the residue. 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.
14. Further, PW1 in the cross examination admitted
that he had not labelled the entire contraband articles, for which
there are no reason(s). He deposed that as far as he can recall
Lupigesic was found in the form of ampules. He does not
remember whether there was any batch number written on the
ampules. He admitted that Ext.P4 seizure mahazar does not refer
to the batch number. The contents of the ampules were more or
less of the same colour. He does not remember whether the labels
found in the ampules of Lupigesic were identical. As far as he
can recollect there were labels. He does not remember the colour
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of the labels. From the testimony of PW1, it appears that the
ampules alleged to have been seized from the accused/appellant
did not have any label indicating its weight. The materials also do
not show that all the ampules were identical or similar. Further,
there is no material to show that the ampules taken as sample was
an identical representation of the residue contraband. Neither the
testimony of PW1 nor Ext.P4 seizure mahazar shows that the
contraband articles had been weighed by PW1. This is a case in
which quite a substantial quantity of narcotic drugs/psychotropic
substance is alleged to have been seized from the
accused/appellant. However the preparation of Ext.P4 seizure
mahazar, the testimony of PW1 and the investigation conducted
leaves much to be desired. PW1 is not able to say for sure and
depose with confidence the details of the contraband recovered.
A reading of the testimony of PW1 does not inspire the
confidence in the mind of the court and therefore, I find that the
materials on record is not satisfactory to find the guilt of the
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accused beyond reasonable doubt. In these circumstances, I find
that the accused is entitled to the benefit of doubt.
In the result, the appeal is allowed. The impugned
judgment is set aside. The conviction and sentence imposed by
the trial court is set aside and the accused/appellant 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
Jms
