Kerala High Court
Jose Joseph @ Sabu vs State Of Kerala on 16 September, 2025
Author: T.R. Ravi
Bench: T.R.Ravi
Crl.Appeal No.1217/2006
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 16TH DAY OF SEPTEMBER 2025 / 25TH BHADRA, 1947
CRL.A NO. 1217 OF 2006
AGAINST THE JUDGMENT DATED 24.06.2006 IN SC NO.1 OF 2005 OF
SPECIAL COURT (NDPS ACT CASES), VADAKARA
APPELLANT/1ST ACCUSE:
JOSE JOSEPH @ SABU
S/O.JOSEPH, KUNDUPARAMBIL,
THIMIRI AMSOM,
THERTHALLY.
BY ADVS.
SRI.GRASHIOUS KURIAKOSE (SR.)
SMT.M.R.JAYALATHA
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SRI SANAL P.RAJ, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.09.2025,
THE COURT ON 16.09.2025 DELIVERED THE FOLLOWING:
Crl.Appeal No.1217/2006
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2
T.R. RAVI, J.
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Crl. Appeal No.1217 of 2006
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Dated this the 16th day of September, 2025
JUDGMENT
This appeal is filed by the 1 st accused, against the conviction
and sentence imposed on him for an offence under Section 20(b) (ii)
(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985
(N.D.P.S. Act). The prosecution case is that the appellant was found
in possession of 10 Kg and 320 grams of ganja, at house No.IV/802
at Therthalli in Alakkode Panchayat, where he was residing on rent.
The house belonged to one Karukayil Marykutty. According to the
prosecution, the Circle Inspector, Alakkode received information that
ganja was kept in the house, and he proceeded with a police party
to conduct a search. It is alleged that on 4.9.2003 at 5.30 a.m., the
police party reached the house and found two persons sitting in the
visitors' room. It is further alleged that a plastic bag with ganja kept
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in the room, was seized by the Circle Inspector, and the two persons
were arrested.
2. During the trial, the owner of the house was examined to
prove that the accused was in possession and control of the house
from where the ganja was recovered. Exts.P6 and P7 documents
were marked through her. Ext.P6 is a Kychit which shows that the
house had been taken on lease and the lease period ended on
2.9.2003. In order to justify the appellant's possession on 4.9.2003,
Ext.P7 dated 17.11.2003 is relied upon, which is a document that
says that the lease period was extended. PW5 is the Detecting
Officer, Circle Inspector of Police, Alakkode. He has deposed that
after recording the information that ganja is kept in the house, he
sent a report under Section 42 of the N.D.P.S. Act.
3. The trial court accepted the statement of the owner of
the house and found that the accused was occupying the house for
11 months after the expiry of the period of lease specified in Ext.P6,
and that he had vacated the premises only on 16.5.2004. The court
held that the wife of the appellant had admitted Exts.P6 and P7
documents while she was examined as a defence witness, though
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she had specifically stated that Ext.P7 was executed by her and her
husband, as instructed by the Circle Inspector. The court observed
that she did not have a case that the Circle Inspector had
threatened or compelled her or her husband to execute such an
agreement.
4. Regarding the seizure of Ganja, reliance is placed by the
Court on the evidence of PW1 and PW3, who are stated to be
independent witnesses to the seizure made by PW5, and the
evidence of PW11 and PW6, the Sub Inspector and the Assistant Sub
Inspector, respectively. According to PW1 and PW3, they had gone to
the house as requested by the police party, and on reaching the
courtyard of the house, they saw the accused standing there. They
also state that they saw a packet containing something at the corner
of the courtyard. They admit their signature in Ext.P1 search list. On
the above evidence, the court concluded that PW1 and PW3 had
witnessed the search of the house where the first accused was
residing on rent, and the seizure of a huge quantity of Ganja. The
witnesses, however, turned hostile, when examined in the Court.
The court found that there is no satisfactory evidence to implicate
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the 2nd accused, or to prove his complicity in the possession of a
huge quantity of Ganja by the first accused, except that the 2 nd
accused was seen in the house when the police party reached there.
The court observed that there is no satisfactory explanation as to
why the 2nd accused happened to be in the house of the appellant
at about 4.30 A.M. or why they were sitting in the visitors' room at
that time or what they had been planning or talking about at that
time. The Court found that the mere absence of explanation for the
presence cannot be a reason to find the 2nd accused guilty.
5. Heard the Senior Counsel appearing for the appellant/1st
accused and the Public Prosecutor, and I have perused the evidence
on record. There are several unconvincing and unexplained factors in
the evidence on record which seriously vitiates the conclusions
arrived at by the trial court, and they are as follows.
6. Firstly, it is difficult to accept the evidence of the owner
of the house regarding the appellant's absolute possession of the
house. The owner who was examined as PW4 states that an
agreement for sale of the house had been entered into on
24.06.2003 and it is thereafter that Ext.P6 rent deed was executed.
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It is admitted that the rent deed was for a period of two months by
which time the accused was expected to pay the consideration and
take the sale. It is admitted that the agreement for sale failed and
that she had disputes with the 1st accused, on that account.
According to PW4, the wife of the 1 st accused had given in writing
that the sale cannot happen in view of the criminal case. PW4
further states that the period stated in the agreement for sale ended
on 30.8.2003. The above evidence would only be sufficient to prove
possession for the period after the expiry of the lease period. Unless
further possession based on Ext.P7 can be satisfactorily held to be
proved, it is difficult to accept the prosecution case and also to
justify the non-inclusion of the owner of the house as an accused.
Coming to Ext.P7, PW5 says that it was seized from the house.
However, there is no seizure mahazar to support this statement. The
document could not have been seized simultaneously with the
seizure of the Ganja, since it is dated 17.11.2003, much after the
alleged occurrence of the crime. Even Ext.P6 document was not
seized at the time of search and was produced by PW14 later during
the progress of the investigation. There is no case for the
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prosecution that a further search was conducted after 04.09.2003.
The oral evidence of PW5 is totally unconvincing regarding the
seizure of Ext.P7. Moreover, Ext.P7 is a document which has come
into existence after the crime and no reliance can be placed on the
said document to prove the occupation of the appellant after
02.09.2003. Apart from that, since the appellant had already been
implicated in a crime on 04.09.2003, it is unbelievable that PW4 had
agreed to extend the period of lease by executing Ext.P7 document
for a further period till 16.05.2004. Ext.P7 purports to have been
executed by the appellant, his wife and the mother of his wife and
hence cannot also be a continuation of Ext.P6. Ext.P7 can hence not
be accepted as a convincing evidence to show the possession of the
accused. PW13, the Circle Inspector who had investigated, had
admitted in cross-examination that Ext.P7 was recovered after the
incident. A reading of Ext.P7 only shows that a lease was granted
from 17.11.2003. The above evidence also does not support the
prosecution case.
7. Secondly, PW5 while examined states that the wife and
children of the 1st accused were present in the house at the time of
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search. The above contention at the time of evidence, was
apparently to make it appear that the 1st accused was residing in the
house. However, the above statement is not supported by the
evidence on record. Ext.P1 search list, which necessarily must have
been prepared immediately after the search, does not show the
presence of the wife and children of the accused in the house. The
FIR does not say that at the time of search the wife and children
were present. It is not stated in the FIR that Women Police
personnel were present at the time of search. The Sub Inspector of
Police examined as PW11, however, says that Women Police Officers
were there in the search party, but that he does not remember how
many of them were there. He also says that there was nobody other
than the first accused in the house. PW12, Circle Inspector of Police,
has stated that the mahazar witnesses are not persons who were
residing nearby and the mahazar does not state about anybody else
residing in the house. Ext.P10 report also does not state about the
presence of the wife and children of the appellant at the time of
search.
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8. The third aspect is regarding the compliance with the
requirements of Section 42 of NDPS Act. Section 42 reads thus;
"S.42. Power of entry, search, seizure and arrest
without warrant or authorisation.--(l) Any such officer
(being an officer superior in rank to a peon, sepoy or
constable) of the departments of central excise, narcotics,
customs, revenue intellegence or any other department of
the Central Government including para-military forces or
armed forces as is empowered in this behalf by general or
special order by the Central Government, or any such officer
(being an officer superior in rank to a peon, sepoy or
constable) of the revenue, drugs control, excise, police or
any other department of a State Government as is
empowered in this behalf by general or special order of the
State Government, if he 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 or
any document or other article which may furnish evidence of
the commission of such offence or any illegally acquired
property or any document or other article which may furnish
evidence of holding any illegally acquired property which is
liable for seizure or freezing or forfeiture under Chapter VA
of this Act is kept or concealed in any building, conveyance
or enclosed place, may between sunrise and sunset,-
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(a) enter into and search any such building,
conveyance or place;
(b) in case of resistance, break open any door
and remove any obstacle to such entry; -
(c) seize such drug or substance and all materials
used in the manufacture thereof and any other
article and any animal or conveyance which he
has reason to believe to be liable to confiscation
under this Act and any document or other article
which he has reason to believe may furnish
evidence of the commission of any offence
punishable under this Act or furnish evidence of
holding any illegally acquired property which is
liable for seizure or freezing or forfeiture under
Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper,
arrest any person whom he has reason to believe
to have committed any offence punishable under
this Act:
Provided that in respect of holder of a licence for
manufacture of manufactured drugs or
psychotropic substances or controlled substances
granted under this Act or any rule or order made
thereunder, such power shall be exercised by an
officer not below the rank of sub-inspector:
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Provided further that if such officer has reason to
believe that a search warrant or authorisation
cannot be obtained without affording opportunity
for the concealment of evidence or facility for the
escape of an offender, he may enter and search
such building, conveyance or enclosed place at
any time between sunset and sunrise after
recording the grounds of his belief.
(2) Where an officer takes down any information in writing
under sub-section (1) or records grounds for his belief under
the proviso thereto, he shall within seventy-two hours send
a copy thereof to his immediate official superior."
Going by the provision, the officer should have reason to believe,
either from personal knowledge or from information given by any
person and taken down in writing, regarding the concealment of a
narcotic substance liable for seizure, freezing or forfeiture. If a
search is conducted based on information received, such information
has to be taken down in writing. PW5 says that he proceeded to
search on receipt of information. It is admitted that Ext.P1 does not
show the source of the information. According to PW5, the source of
information had been stated in the FIR and the general diary and
Ext.P9 which purports to be the Section 42 report dated 4.9.2003.
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Admittedly, the time when the information was received has also not
been recorded. What is recorded in the FIR is the time when the
search was conducted. He further admits that there is no seal, initial
or date to evidence the receipt of Ext.P9 report in the Magistrate's
Court. Admittedly, Ext.P9 report does not say that the information
had been recorded in the general diary. It is also admitted that no
seal, initial or date is available to evidence the receipt of Ext.P14 in
the court. Ext.P16 GD extract was admittedly submitted before the
court only on 16.09.2003. He further admits that the reason for
going for a search without a search warrant has not been specified
in Ext.P9. He states that he did not remember the name of the
Police Constable with whom Section 42 report was forwarded to the
Dy.S.P. and the search memo was forwarded to the court. He also
says that Superior Officer was not informed regarding the search
during night. The evidence on record would clearly show that there
is no compliance with the requirements of Section 42, regarding the
recording of the information received, the grounds for belief
regarding the occurrence of the crime and informing the superior
officer about the above facts. So also Exts. P9 and P10 reports were
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not initially produced along with the final report. The same were
produced only after the final report was returned. The appellant has
a case that copies of the report were not supplied to him as required
under Section 207 of the Code of Criminal Procedure. It is further
evident that there is no proper mahazar prepared and Ext.P1 is only
a property list.
9. Fourthly, there is also inconsistency in the evidence
regarding the time of arrest since the FIR says it as at 05.30 a.m.,
while the arrest memo says it as at 05.50 a.m. According to PW1,
who is the brother of the owner of the house, the time of occurrence
was about 01.00 a.m. in the morning. Fifthly, there is nothing
in the evidence regarding the manner of deposit of the seized
articles in court. The Malkana Register was not produced. The
Station House Officer was not examined. The staff through whom
the contraband was sent to the court was not even made a witness
in the case and not examined. Ext.P22 property list would show that
the seized articles reached the court only on 08.09.2003. There is no
explanation as to where the seized articles were between
04.09.2003 and 08.09.2003. In Mohanlal v. State of Punjab
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[(2018) 17 SCC 627], the Hon'ble Supreme Court has emphasised
on the importance of deposit of the seized articles. In the judgment
in Narayani v. Excise Inspector [2002 (3) KLT 725], the court
has held that the contraband, till it reached the court, has to be
shown to have been kept in proper custody. Sixthly, the samples of
the contraband were not produced before the court by the
prosecution at the time of evidence, as was required. Seventhly,
though the search was between sunset and sunrise, the Police
Officer has not recorded the reason for not obtaining a search
warrant. Eighthly, though PW5 stated that he had prepared Exhibit
P14 search memo and sent it to the Magistrate, the same was not
received in the Magistrate Court. Ninthly, though in order to prove
that Exhibits P9 and P10 reports were received in time, PW15
Dy.S.P. was examined, no document has been produced to show the
receipt of the reports. The number of the P.C. mentioned in the
dispatch register also does not tally with the version of PW5.
10. Apart from the above inconsistencies, another contention
of the Senior Counsel for the appellant is that in the case on hand,
there was no separate arrest memo prepared as required under
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Section 42 of the NDPS Act and grounds of arrest are also not
mentioned.
11. In Karnail Singh v. State of Haryana [(2009) 8 SCC
539], the Hon'ble Supreme Court considered the necessity of
compliance with the requirements of Section 42 of the Act. The
Court held thus.
"35. In conclusion, what is to be noticed is that Abdul
Rashid [(2000) 2 SCC 513 : 2000 SCC (Cri) 496] did not
require literal compliance with the requirements of Sections
42(1) and 42(2) nor did Sajan Abraham [(2001) 6 SCC 692 :
2001 SCC (Cri) 1217] hold that the requirements of Sections
42(1) and 42(2) need not be fulfilled at all. The effect of the
two decisions was as follows:
(a) The officer on receiving the information [of
the nature referred to in sub-section (1) of
Section 42] from any person had to record it
in writing in the register concerned and
forthwith send a copy to his immediate official
superior, before proceeding to take action in
terms of clauses (a) to (d) of Section 42(1).
(b) But if the information was received when
the officer was not in the police station, but
while he was on the move either on patrol
duty or otherwise, either by mobile phone, or
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other means, and the information calls for
immediate action and any delay would have
resulted in the goods or evidence being
removed or destroyed, it would not be feasible
or practical to take down in writing the
information given to him, in such a situation,
he could take action as per clauses (a) to (d)
of Section 42(1) and thereafter, as soon as it
is practical, record the information in writing
and forthwith inform the same to the official
superior.
(c) In other words, the compliance with the
requirements of Sections 42(1) and 42(2) in
regard to writing down the information
received and sending a copy thereof to the
superior officer, should normally precede the
entry, search and seizure by the officer. But in
special circumstances involving emergent
situations, the recording of the information in
writing and sending a copy thereof to the
official superior may get postponed by a
reasonable period, that is, after the search,
entry and seizure. The question is one of
urgency and expediency.
(d) While total non-compliance with
requirements of sub-sections (1) and (2) of
Section 42 is impermissible, delayed
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compliance with satisfactory explanation
about the delay will be acceptable compliance
with Section 42. To illustrate, if any delay may
result in the accused escaping or the goods or
evidence being destroyed or removed, not
recording in writing the information received,
before initiating action, or non-sending of a
copy of such information to the official
superior forthwith, may not be treated as
violation of Section 42. But if the information
was received when the police officer was in
the police station with sufficient time to take
action, and if the police officer fails to record
in writing the information received, or fails to
send a copy thereof, to the official superior,
then it will be a suspicious circumstance being
a clear violation of Section 42 of the Act.
Similarly, where the police officer does not
record the information at all, and does not
inform the official superior at all, then also it
will be a clear violation of Section 42 of the
Act. Whether there is adequate or substantial
compliance with Section 42 or not is a
question of fact to be decided in each case.
The above position got strengthened with the
amendment to Section 42 by Act 9 of 2001."
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12. In State of W.B. v. Babu Chakraborthy, [(2004) 12
SCC 201], the Hon'ble Supreme Court held thus.
"16. We have given our thoughtful consideration to the
submissions made by both the learned counsel appearing on
either side on facts and also on law. In the instant case, the
respondent was charged for the offence under Section 21 of the
Act for the illegal possession of 3 gm and 25 mg of diacetyl
morphine, which is commonly known as heroin in contravention
of Section 8(c) of the Act. The case of the prosecution was that
PW 4 Additional SP, received secret information and to work out
the secret information, he along with PW 2 S.K. Dutta, went to
the house of the respondent on 5-5-1989 and conducted a
search of the house of the accused. What is important to notice
is that the information was not taken down in writing, as
required under law and as rightly contended by the learned
counsel for the respondent. The search conducted at 9.45 p.m.
after sunset and before sunrise was without complying with the
proviso to Section 42(1). ... ..."
13. A learned Single Judge of this Court, relying of the
judgments of the Hon'ble Supreme Court in Thundiyil
Muhammadali v. State of Kerala [2020 SCC OnLine Ker 2521],
held that if no evidence is led by the prosecution regarding the
compliance of the mandatory requirements of Section 42 of the Act,
the court will be entitled to draw a presumption that the procedure
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has not been complied with. It was held that there can be no
presumption of compliance of Section 42 of the NDPS Act, without
there being any evidence adduced by the prosecution. Reference
was made to the judgment of this Court
in Thulaseedharan v. State of Kerala [2002 (2) KLT 69], to
hold that the receipt of a Section 42 report would, to so some
extent, ensure that the empowered officer does not misuse the
power and make search and seizure only in genuine cases, that
compliance with the section is mandatory and that the prosecution
should adduce evidence to prove the compliance. The court in the
above said case held that if compliance of Section 42(2) is not put to
the accused under Section 313 Cr.P.C., the same cannot be relied
upon by the Court to convict the accused.
14. The counsel for the appellant also raised a contention
that Ext.P24 chemical analysis report does not show that the
flowering and fruiting tops of the cannabis plant were seized from
the possession of the appellant and going by the definition of
'cannabis' in Section 2(3) of the NDPS Act, the appellant cannot be
prosecuted successfully, as has been held in Sivadasan v. State
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[2003 (3) KLT 100]. I find on going through Ext.P24 that there is
reference to flowering and fruiting tops and hence there is no scope
for applying the dictum laid down in the above case, to the facts of
this case. I do not think it is necessary to go into the above aspects,
in view of the serious discrepancies in the evidence on record.
In the light of the inconsistencies in the evidence narrated in
paragraphs 6 to 9 above and the law laid down in the above referred
cases, the trial court went wrong in finding that the prosecution has
succeeded in establishing the guilt of the appellant. The appellant is
hence entitled to succeed. The appeal is allowed and the conviction
and sentence ordered by the trial court are set aside.
Sd/-
T.R. RAVI
JUDGE
dsn/pn
