IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 2ND APRIL 2009 / 12TH CHAITHRA 1931 CRL.A.No. 2269 of 2008 (S.C.NO.1147 OF 2007 OF the Court of the Special Judge, for trial of cases under the N.D.P.S.Act, Thiruvananthapuram dated 3.7.2008) APPELLANT/first accused: ----------------------------------- RAJESH,C.NO.3045, CENTRAL PRISON, THIRUVANANTHAPURAM. BY ADV. JAYAPRASAD M.R.[STATE BRIEF] RESPONDENT: ------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.K.L.LAKSHMI RANI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/03/2009, ALONG WITH CRL.A.NO.1663 OF 2008, THE COURT ON 02/04/2009 DELIVERED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.A.No. 2269 & 1663 of 2008 --------------------------------------------- Dated this the 2nd day of April, 2009 J U D G M E N T These two appeals arise out of the judgment dated 3.7.2008 in Sessions Case No. 1147 of 2007 on the file of the Court of the Special Judge, for trial of cases under the N.D.P.S.Act, Thiruvananthapuram. Altogether there are two accused in the above Sessions Case. The first accused was found guilty under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the N.D.P.S.Act') and the second accused was found guilty under Sections 28 and 29 of the N.D.P.S.Act and accordingly, both of them were sentenced. 2. Challenging the above sentence, the first accused filed Crl.A.No.2269 of 2008 whereas the second accused filed Crl.A.No.1663 of 2008. The first accused preferred Crl.A.No.2269 of 2008 from the jail, while undergoing imprisonment in pursuance of the impugned judgment, whereas the second accused preferred Crl.A.No.1663 of 2008 through an Advocate of his own choice and when the above appeal came up for admission, this Court, by order dated 8.8.2008 in Crl.M.A.No.1888 of 2008 suspended the execution of the sentence and bail was granted in favour of him. As Crl.A.No. 2269 & 1663 of 2008 :-2-: the appeals arise out of the same judgment, these appeals are heard together and being disposed of by this common judgment. 3. The case of the prosecution is that on 20.10.2006 at about 6 p.m. near Desasevini Reading Room and Library situated 100 metres east of Sreekariyam Junction on the side of the Sreekariyam-Ulloor road, the first accused was found to be in possession of 2.5 Kgs. of hashish, a narcotic substance as entrusted to him by the second accused for the purpose of trafficking and thereby first accused had committed an offence punishable under Section 20(b)(ii)(C) of the N.D.P.S.Act and the second accused has committed the offence punishable under Sections 28 and 29 of the N.D.P.S.Act. On the basis of the above allegation, Crime No.9 of 2006 was registered by the Excise Enforcement and Anti Narcotic Special Squad, Thiruvananthapuram for the above offence. After investigation, the Investigating Agency filed a report/complaint before the trial court and the trial court took cognizance of the case as S.C.No.1147 of 2007 under Section 20(b)(ii)(C) and Sections 28 and 29 of the N.D.P.S.Act. 4. When the accused appeared before the court below, originally, charges under Section 21(c) against the first accused Crl.A.No. 2269 & 1663 of 2008 :-3-: and Sections 28 and 29 against the second accused under N.D.P.S.Act were framed and the same were read over and explained to them and they pleaded not guilty. Subsequently, charge against the first accused was amended as one coming under 20(b)(ii)(C) of the N.D.P.S.Act as per the order of the trial court in Crl.M.P.No.532 of 2008 and again fresh charge was read over and explained to them and they pleaded not guilty. Therefore, the prosecution adduced evidence consisting of the testimony of PWs.1 to 12 and the documentary evidence such as Exts.P1 to P24,P2(a),P4(a),P5(a),P22(a) and also identified and marked material objects such as MOs.1 to 6 and MOs.1(a) to 5 (a). When the incriminating circumstances, which emerged during the evidence of the prosecution, put to the accused, they denied the same. The first accused took a defence by stating that he has not committed any offence and he is innocent of the same. The second accused stated that he had no acquaintance with PW5 Jayakumari and according to him, he was seeing her for the first time in the court and he had flatly denied the allegation that he had handed over hashish and mobile phone to the said Jayakumari. No evidence either documentary or oral was adduced from the side of the defence except marking Crl.A.No. 2269 & 1663 of 2008 :-4-: Exts.D1 to D3 contradictions in the evidence of PWs.5 and 11. On the basis of the materials and evidence on record and the contentions and rival pleadings, the trial court formulated 5 points for its consideration. After elaborate discussion and based upon the evidence and materials on record, the trial court found that the accused are guilty and accordingly, the first accused was convicted under Section 20(b)(ii)(C) of the N.D.P.S.Act and he was sentenced to undergo rigorous imprisonment for 10 years and also to pay a fine of Rs.1 lakh, in default to undergo rigorous imprisonment for a further period of one year. The second accused was convicted under Sections 28 and 29 of the N.D.P.S.Act and he was also sentenced to undergo rigorous imprisonment for a period of ten years each and also to pay a fine of Rs.1 lakh each, in default to undergo rigorous imprisonment for one year each under each section and the substantive sentences imposed against the second accused were directed to be run concurrently. The set off was allowed under Section 428 of the Cr.P.C. It is the above finding, conviction and sentence challenged by the accused by filing the above two separate appeals. Crl.A.No. 2269 & 1663 of 2008 :-5-: 5. As the first accused is undergoing imprisonment in pursuance of the impugned judgment and he preferred the appeal from jail, Advocate Mr.M.R.Jayaprasad is appointed as State Brief to prosecute Crl.A.No.2269 of 2008 for and on behalf of the appellant and thus, I have heard Advocate Mr.M.R.Jayaprasad and Sri.V.Venugopalan Nair, learned counsel appearing for the appellant/second accused in Crl.A.No.1663 of 2008 and also Smt.K.L.Lakshmi Rani, the learned Public Prosecutor. 6. The prosecution case mainly depends upon the evidence of PW11 and other witnesses namely, PWs.1,2 and 7 to establish its case. PW11 was the Circle Inspector of Excise Department working in Excise Enforcement and Anti Narcotic Special Squad, Thiruvananthapuram at the relevant time. According to him, when he was doing patrol duty on 20.10.2006 along with PW1- the Excise Inspector, PW9- the Excise Guard and other Excise Officials and when they reached Sreekaryam at about 5.55 p.m., he had got information that a boy, aged 20 years, wearing jeens pant and shirt was standing near Desasevini Reading Room near Sreekaryam Junction with hashish, a narcotic substance. PW11 deposed that he had reduced the said Crl.A.No. 2269 & 1663 of 2008 :-6-: information into writing and the same was proved as Ext.P23. According to PW11, thereafter he proceeded to that place and he saw the first accused holding a plastic bag in his hand and the same is identified and marked as MO5. First accused was found in the company of PW7. Since the appearance of the first accused was tallying with the description contained in the information received, he stopped the vehicle some distance away from the bus station which is situated in front of the Desasevini Library and Reading Room and proceeded towards the first accused. According to PW11, he had disclosed his identity to A1 and also conveyed the information, which he got, and further declared his intention to search the body of A1. PW11 stated that the accused was made aware of the right under Section 50 of the N.D.P.S.Act, but the first accused and PW7 did not insist for exercising their right under Section 50 and permitted PW11 to conduct the search. Thus, PW11 subjected himself to body search and thereafter, took MO5 bag from the hands of the first accused and on examining MO5 bag, he found MO1 packet containing black sticky substance and when opened the packet, he felt the smell of hashish. It is the further case of PW11 that thereafter, he tested the materials with the narcotic kit kept in the Crl.A.No. 2269 & 1663 of 2008 :-7-: vehicle and he was convinced that it was hashish. He convinced the same to PW1 and other officials and also PW2 an independent witness and another witness present at that time. He had conducted the search in the presence of PW2 and another witness. PW11 deposed elaborately regarding the drawing of samples and seizure of the materials and sealing of the same. It is proved and identified MO5 cover in which MO1 packet was sealed and the sample packets, which were prepared and obtained after analysis, are identified as MOs.2 to 4 and the labels on them are MO2(a), MO3(a) and MO4(a) and the label on MO1 is MO1(a) and label on MO5 is MO5(a). According to PW11, thereafter he had made body search of PW7 and found MO6 series 40 rupees in his shirt pocket. Thus, by preparing Ext.P1 seizure mahazar, he had seized MOs.1 to 5 and MO6 series in the presence of PW2 and another. He had also prepared Ext.P12 search list of the articles seized. Thereafter, the first accused and PW7 were arrested and Ext.P10 arrest memo with respect to the arrest of the first accused was prepared and PW11 came to their office and registered Ext.P11 occurrence report as O.R.No.9 of 2006 against the first accused showing PW7 as the second accused for the offence punishable Crl.A.No. 2269 & 1663 of 2008 :-8-: under Section 20(b)(ii)(C) of the Act. According to PW11, since PW7 was originally shown as second accused in the occurrence report, being a juvenile, he was produced before the Juvenile court and the first accused was produced before the regular Magistrate Court along with Ext.P14 remand report. PW7 was sent to Juvenile home through PW8. The thondi article as per Ext.P7 thondi list along with request was produced before the court on 21.10.2006 through PW8 and the same was returned to Excise Guard PW8 for producing the same before the court on 23.10.2006. Finally on 25.10.2006, it was sent to court through PW9 and the learned Magistrate has directed PW9 to produce the same before the Sessions Court and accordingly, PW9 produced the same before the trial court and the same was received by PW10. On the basis of Ext.P9 letter of the trial court, PW10 sent the samples for analysis of Forensic Science Laboratory, Thiruvananthapuram through PW9 and accordingly, PW9 produced the same before the said laboratory and obtained Ext.P8 acknowledgment. Ext.P15 is the report obtained from the Forensic Science Laboratory, Thiruvananthapuram, by which, it is certified that the samples contained hashish. 7. According to PW11, during the course of investigation, Crl.A.No. 2269 & 1663 of 2008 :-9-: it has come to his knowledge that the first accused had made telephone call to a lady in a mobile phone and on the basis of the mobile phone number, it was revealed that the mobile connection was from hutch connection and thus, PW11 conducted enquiry with the hutch company at Kochi and obtained Ext.P22(a) call details of the mobile phone with No.9846618209 along with Ext.P22 letter from the hutch company. During his enquiry, PW11 was told that the details of the phone connection can be ascertained from their franchise M/s.V.K.K.Trade Links, Thiruvananthapuram and on further enquiry, PW11 realised that the connection was issued from their sub dealer Faiziana Communication, Kaniyapuram which was conducted by PW6. Thus, PW11 went to Faiziana Communication, Kaniyapuram and seized Ext.P4 application given in the name of Sarasamma, 784, Enjikkal Veedu, Chathannoor with Ext.P4(a) photo of Jayakumari, PW5 and Ext.P5 photo electoral identity card of Sarasamma with Ext.P5(a) photograph of PW5 Jayakumari which was entrusted by the applicant for the purpose of getting mobile phone connection produced by PW6 along with Ext.P6 letter which he seized as per Ext.P16 seizure mahazar. On the basis of the above documents, PW11 conducted further investigation and he Crl.A.No. 2269 & 1663 of 2008 :-10-: realised that the addressee shown in Exts.P4 and P5 died long ago and the identity card was relating to the mother of the second accused Chandran and those particulars were revealed when PW4 Radha, sister of the second accused was questioned. On continued investigation, PW11 had got further information that the photograph in Exts.P5 and P4 namely, P5(a) and P4(a) pertain to PW5 Jayakumari and on her questioning, it was further revealed that the photographs were given to the second accused who had assured to give employment and one day, he had given the mobile phone and told the said Jayakumari that two boys would come and they would call and accordingly, she received a call stating that they were waiting for her at Vetturoad. Accordingly, PW5 Jayakumari went to Vetturoad and found the second accused Chandran waiting there and he had entrusted MO5 cover with MO1 packet inside and told that he was waiting for the two boys and on seeing the two boys coming near to them, he entrusted the bag to her to be handed over to the boys and thereafter he left the place after receiving the mobile phone given to her. Thus, PW5 received MO5 cover with the packets inside as entrusted to her by the second accused and thereafter, she entrusted it to the first accused and thereafter she left the Crl.A.No. 2269 & 1663 of 2008 :-11-: place. According to her, she came to know about the contents of the packets and MO5 cover as hashish only from the next day newspaper. Thus, according to the PW11, the investigation disclosed that the second accused has also involved in the crime and accordingly, the second accused was arrested on 10.5.2007 at 10 a.m. from a toddy shop bearing No.6/2007-08, Kadambattukonam and PW11 prepared Ext.P18 arrest memo. PW11 further deposed that on the arrest of the second accused and on his questioning, he gave Ext.P20 confession statement which was recorded under Section 67 of the N.D.P.S.Act. Thus, thereafter, he filed Ext.P17 report to add the second accused as the third accused in the occurrence report. Thereafter, PW11 secured the custody of the original second accused (PW7) and when he questioned, it was revealed that he had not really involved in the transaction and he had simply accompanied the first accused as requested by him. Thus, according to PW11, on realising the above fact, he filed Ext.P21 report before the Juvenile Court to drop the proceedings against PW7, the original second accused. Thereafter, PW11 produced the second accused along with Ext.P19 remand report. Ext.P24 is the intimation given to the immediate superior officer regarding the Crl.A.No. 2269 & 1663 of 2008 :-12-: detection and arrest of original first and second accused in the Occurrence Report as required under Section 57 of the N.D.P.S.Act. The further investigation in this case was conducted by PW12. He verified the investigation conducted by PW11. PW12 conducted the enquiry about Ext.P3 photo identity card with PW3 Tahsildar, Kollam and obtained Ext.P2 attested copy of the register of photo identity card and Ext.P2(a) relates to Sarasamma, who is the mother of the second accused. PW12 conducted investigation and laid the charge against accused Nos. 1 and 2. 8. When PWs.1 and 2 were examined, they deposed in terms of the deposition of PW11. PW7 also supported the prosecution case as such. Going by the evidence of PWs.1,2,7 and 11 and prosecution exhibits such as Exts.P7 thondy list,P12 search list, P10 arrest memo, the trial court found that the prosecution had succeeded in establishing the seizure of the contraband article from the first accused and on the basis of evidence of PW5 and PW11 and as per the documentary evidence such as Exts.P2,P2(a),P3,P4,P4(a),P5,P5(a) and Ext.P20 confession statement of the second accused, the trial court was of the opinion that the prosecution had succeeded in Crl.A.No. 2269 & 1663 of 2008 :-13-: proving the involvement of the second accused in the commission of the crime and further proved the abetment and preparation of commission of the offence. Thus the trial court came into a specific finding that the prosecution has proved beyond reasonable doubt that the first accused was found to be in possession of 2.5 Kgs. of hashish which is a commercial quantity in violation of the provisions of N.D.P.S.Act and it has come into possession of the first accused as entrusted by the second accused as abetted and on preparation at his instance by him and thereby, the first accused had committed the offence punishable under Section 20(b)(ii)(C) of the N.D.P.S.Act and the second accused had committed the offence punishable under Sections 28 and 29 of the N.D.P.S.Act. 9. Mr..M.R.Jayaprasad, learned counsel appearing as State Brief for the first accused submitted that the prosecution has miserably failed to prove that the alleged seizure of the contraband article was strictly from the possession of the appellant/first accused and in accordance with the legal requirement. According to the learned counsel, since both the alleged seizure and the investigation were done by the same officer, great prejudice is caused to the accused and therefore, Crl.A.No. 2269 & 1663 of 2008 :-14-: the investigation and the consequent trial are vitiated. Learned counsel further submits that the very genuineness of the prosecution case itself is under shadow of doubt and the prosecution has created false documents for the purpose of canvassing the conviction against the first accused. According to the learned counsel, though PW11 has stated that he went to the spot, in pursuance of the information which he received, along with other Excise Officers who were on patrol duty, the above claim of PW11 is not supported by PW1 another loyal witness to the prosecution. According to PW1, he was with the company of PW11 from the very starting of the patrol duty and till reaching at the spot from where the alleged contraband articles were seized and he had not noticed any receipt of information by PW11 during the journey and he had no occasion to notice the recording of any information by PW11 during their patrol duty. On the basis of this discrepancy, learned counsel submits that the very basis of the prosecution case itself is doubtful. Against the seizure, learned counsel further submits that though two independent witnesses were shown in Ext.P1 seizure mahazar, only one witness was selected to be examined in the court and the other witness was given up. According to the learned counsel, PW2, who was Crl.A.No. 2269 & 1663 of 2008 :-15-: examined to prove the seizure and arrest of the accused, is a highly interested witness procured for the above purpose. PW2 is a bar employee and he is very loyal and submissive to the prosecution. On the other hand, according to the learned counsel, there is no explanation from the prosecution in not examining the other witnesses. Therefore, learned counsel submits that regarding the seizure of the contraband article from the possession of the first accused, there is no independent evidence so as to corroborate the evidence of PW11. Another point raised by the learned counsel for the first accused is that the alleged seizure was conducted in violation of the statutory mandate contained in Section 50 of the N.D.P.S.Act. According to the learned counsel, apart from the very claim of PW11 that the first accused was apprised of his right under Section 50, there is no evidence to show that the alleged seizure was effected in accordance with the statutory mandate and procedure contemplated by Section 50. Hence, the seizure itself is vitiated and consequently, the accused are entitled to get acquittal. In the alternative, learned counsel further submits that even if it is admitted; not conceded that MO5 bag and the contents thereon were seized from the possession of the first accused, absolutely Crl.A.No. 2269 & 1663 of 2008 :-16-: there is no evidence to show that the first accused had possessed the bag with the knowledge that it contains the contraband article namely, hashish. The first accused/appellant in Crl.A.No.2269 of 2008 in his appeal memorandum which was prepared from the jail at his instance in ground No.4, it is stated that the appellant has no knowledge about the contents of the packet which was entrusted to him. It is also submitted that “the second accused has very cunningly enacted the entire drama in which the appellant was made a scape goat.” According to the learned counsel, the prosecution has miserably failed to establish that the first accused was in conscious possession of the contraband article. In support of the argument advanced on the basis of Section 50 of the N.D.P.S.Act., the learned counsel placed reliance upon the decision reported in Ravindran @ John v. Superintendent of Customs [AIR 2007 SC 2040; 2007(3) KLT SN 11 (Case No.13) SC]. Thus, according to the learned counsel, the prosecution has miserably failed to prove that the contraband article was seized from the possession of the first accused and therefore, the finding of the court below that the first accused has committed the offence punishable under Section 20 (b)(ii)(C) of the N.D.P.S.Act is liable to be set aside and he is Crl.A.No. 2269 & 1663 of 2008 :-17-: entitled to an acquittal. 10. Mr.V.Venugopalan Nair, learned counsel appearing for the second accused in Crl.A.No.1663 of 2008 vehemently argued that the conviction and sentence imposed by the court below against the second accused is diametrically opposed to the law, facts, evidence and circumstances involved in the case. According to the learned counsel, the court below has not appreciated the evidence properly and the same resulted in gross mis-carriage of justice. According to the learned counsel, the approach of the trial court and its finding, that evidence of PW5 coupled with EXts.P4,P4(a),P5,P5(a),P3,P2,P2(a) and P20 confession statement of second accused that he had made arrangements to entrust the contraband article to the first accused through PW5 and thereby, he abetted the commission of offence and made preparations for the commission of offence, are proved beyond reasonable doubt, are baseless and contrary to the real fact and the evidence on record. Learned counsel very much argued that absolutely, there is no allegation or any statement and evidence to prove any connection between Accused Nos.1 and 2. Therefore, according to the learned counsel, even if the contraband article is claimed to have seized Crl.A.No. 2269 & 1663 of 2008 :-18-: from the possession of first accused, absolutely there is no evidence to come to a conclusion that it was the second accused who abetted A1 for committing the offence. Learned counsel further submitted that the allegation of the prosecution that A2 obtained telephone connection from PW6 cannot be believed for a moment. Learned counsel submits that the persons like PW6 are not expected to issue mobile phone connection without verifying the records and also the identity of the person. In support of the above contention, learned counsel invited the attention of this Court to the deposition of PW6 which says that “.........അപക ക ട ത ആള വന ല മ തപമ കമ ബല ണകന ക ട ക യ ള . ....... '' Learned counsel further argued that the person namely Hasim was not questioned by the prosecution and as such, there is no evidence as to who submitted the application form for obtaining the mobile connection. Learned counsel pointed out that though PW11 has stated about the calls made through the mobile phone, he did not conduct any investigation to trace out the person to whom the call was made before and after the seizure. According to the learned counsel, that is a serious lapse on the part of the Crl.A.No. 2269 & 1663 of 2008 :-19-: investigating officer and if a proper investigation was conducted, the real culprits would have been identified. Learned counsel pointed out that PW5 in her 161 statement did not state about the handing over of the mobile phone, travel to Vetturoad, seeing the