IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 24TH MARCH 2010 / 3RD CHAITHRA 1932 CRL.A.No. 638 of 2009() --------------------------------- SC.34/2007 of ADDL.SESSIONS COURT (ADHOC)III, TRIVANDRUM .................................................................... APPELLANT(S): APPELLANT/ACCUSED ---------------------------------------------------------- KRISHNAKUMAR @ CHERUPPU KUMAR, S/O.SOMAN, PUTHUVAL PUTHEN VEEDU, T.C. 43/2305, NEAR S.N.D.P. SMASANAM, MUTTATHARA, KAMALESWARAM WARD, MUTTATHARA VILLAGE. BY ADV. SRI.AJITH KRISHNAN RESPONDENT(S): COMPLAINANT ------------------------------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.C.M.KAMMAPPU, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. APPEAL No.638 of 2009 ------------------------------- Dated this the 24th day of March, 2010. J U D G M E N T This appeal is preferred by the sole accused, challenging the judgment dated 29.11.2008 in S.C.No.34/2007, by which the appellant stand convicted and sentenced u/s.20(b)(1) of Narcotic Drugs and Psychotropic Substances Act, 1985. 2. The prosecution case is that when PW4, the Sub Inspector of Police, Poonthura Police station and party while they were conducting patrol duty, on 18.5.2005, received an information that, in T.C.No.43/2305 of Puthuval Puthenveedu, where the accused and family residing, the accused unauthorisedly keeping ganja and accordingly search was conducted in the said house and thus detected 1175 gms of ganja kept in the kitchen of the said house and the accused was arrested at about 5.45 PM on the same date. Thereafter, PW4 and party came to the police station along with the accused and the contraband article seized and thereafter registered crime Crl. APPEAL No.638 of 2009 2 No.122/05, in Poonthura police station for the offence u/s.20(b)(ii) (B) of NDPS Act. On completing the investigation in the above crime, a report was filed before the committal court, namely, JFCM Court-II, Trivandrum, wherein committal proceedings were initiated and the case was committed to the Sessions Court, from where it was made over to the Court of Addl. Sessions Judge and then to Additional District and Sessions Court-II, Thiruvananthapuram, and subsequently transferred to the trial court. On the appearance of the accused, a formal charge was framed u/s.20(b) (ii)(B) of NDPS Act, which was read over and explained to him and he denied the said charge and pleaded not guilty. Thereafter, the prosecution adduced its evidence consists of oral testimony of Pws.1 to 6 and documentary evidence consists of Exts.P1 to P7. M.O.s 1 to 6 were identified as material objects. No evidence, either oral or documentary, produced from the side of the defence. On the basis of the available evidence and materials on record, the trial court found that the accused has committed the offence, for which he was tried and accordingly the appellant is convicted u/s.20(b)(ii)(B) of NDPS Act and sentenced him to undergo Crl. APPEAL No.638 of 2009 3 rigorous imprisonment for 4 years and to pay a fine of Rs.25,000/- and the default sentence is fixed as 2 years imprisonment. It is directed that the sentence awarded against the appellant shall run concurrently with the sentence, which he is undergoing in another case. It is the above conviction and sentence challenged in this appeal. 3. I have heard the learned counsel for the appellant and also the learned Public Prosecutor. To substantiate the case against the accused/appellant, the prosecution very much relied upon the evidences of Pws.1, 2 and 4. PW2 is an independent witness, who is the attester to Ext.P1 search list. He had also identified M.O.1, the letter and M.O.2 series of 144 newspaper pieces. PWs.1 and 4 deposed that, when they were on patrol duty, received an information to the effect that the accused was conducting sale of ganja in his house. Thus according to them, they proceeded to the house of the accused, who was found in front of the said house and on questioning him, his reply was not satisfactory and therefore PW4 got suspicion about the storage of ganja in the said house. It is the further case of PW4 that, under Crl. APPEAL No.638 of 2009 4 the said suspicious circumstances, PW4 informed the matter to the Crime Sub Inspector of police, ie., one Mr.Ganesan, through wireless and asked him to come after preparing the search list. PW1 is very specific that at about 5.30 PM the said S.I. of police reached with the search list. It is also the case of PW4 that, he had prepared Ext.P3 search memo and sent the same to the court and after obtaining the service of PW2 and CW1, they conducted the search in the house of the accused. It is also the case of Pws.1 and 4 that before the search, they have complied with the mandatory requirements u/s.50 of the NDPS Act. Thus according to the police, the search was conducted in the house of the accused in the presence of independent witnesses and accordingly, detected a plastic cover in the kitchen beneath the slab. According to the prosecution, there were 144 small packets in the plastic cover, having a total weight of 280 gms and another 895 gms of ganja were also found beside the said 144 packets. Thus according to the prosecution, altogether the ganja that detected will come about 1175 gms. According to the prosecution, two samples were taken containing 50 gms each and the same Crl. APPEAL No.638 of 2009 5 were separately sealed and labelled and thereafter the accused was arrested. The accused was arrested as per Ext.P5 arrest memo and Ext.P6 inspection memo. Ext.P7 is the intimation given to the wife of the accused. The prosecution had identified M.O.1 as ganja of having 1175 gms. All the labels pasted on the material objects contained the signatures of accused, the independent witnesses and the officer, who seized the same, namely PW4. PW2 deposed in terms of the prosecution case, when he was examined. PW3 is the expert through whom Ext.P2 chemical analysts report proved. PW5 is the Circle Inspector of police, who sent the samples for a chemical analysis and PW6, the C.I. of police, laid the charge. It is on the basis of the above materials, the trial court found the accused guilty. 4. The learned counsel for the appellant vehemently submitted that, absolutely there is no evidence or materials to establish that the prosecution has complied with the mandatory provisions of Section 42 of NDPS Act. According to the learned counsel, no report as contemplated u/s.42(2) of NDPS Act is prepared and produced by the prosecution. It is also the case of Crl. APPEAL No.638 of 2009 6 the learned counsel that PW4, who claimed to have received the information, did not venture to write down the information received by him. Thus according to the learned counsel, in the light of the settled position of law, the accused/appellant is entitled to get a clear acquittal for non-compliance of the statutory mandate that contained in Section 42 of NDPS Act. It is also the contention of the learned counsel that, even though PW4 has not recorded the information received by him and no report was prepared to sent to the higher officials, as required u/s.42(2) of NDPS Act, even after the so called search and seizure of the contraband article, no report was sent to the higher officials. Another contention raised by the counsel for the appellant is to the effect that, though the alleged seizure was on 18.5.2005, absolutely there is no evidence to show that the contraband article has produced before the court. The learned counsel pointed out that, no property list was prepared and produced before the court and there is nothing on record to show that the court has received any property produced by the prosecution agency. The learned counsel invited my attention to Ext.P2 FSL report, wherein there is an endorsement to Crl. APPEAL No.638 of 2009 7 the effect that, the same were forwarded to the lab by a letter dated 15.6.2006. According to the learned counsel, even if it is assumed that the contraband article was sent to the lab on 15.6.2006, there is no evidence as to where the contraband article were kept, after the alleged seizure on 18.5.2005. There is also no evidence as to who is the custodian of the contraband article in the meanwhile. It is also pointed out by the learned counsel that, the seizure and drawing of sample were done in a highly improper and illegal manner, which prejudiced the defence. According to the learned counsel, absolutely there is no evidence as to the real quantity of ganja, allegedly possessed by the accused. So according to the learned counsel, the appellant is entitled to get an acquittal. 5. On the other hand, the learned Public Prosecutor submitted that PW4 received the information, when himself and party were on patrol duty and at that time it was impossible for him to reduce the same into writing as envisaged u/s.42(i) of NDPS Act and therefore the contention of the counsel for the appellant in this regard is liable to be rejected, especially in the light of the Crl. APPEAL No.638 of 2009 8 decision of this court in Sajan Abraham Vs. State of Kerala, reported in [2001 Crl. Law Journal 4002]. It is also the contention of the learned Public Prosecutor that as evidenced by Ext.P2, the contraband articles were reached in the court and therefore it is clear that the articles were already produced before the court and all contentions raised by the defence is liable to be rejected. 6. I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor and also perused the evidence and materials on record. In the present case, according to the prosecution, PW4 and party received the information regarding the contravention of the provisions of the Act by keeping of ganja in the house of the accused, while they were on patrol duty and therefore the contention raised by the learned counsel for the appellant, regarding the non-compliance of Sections 42(i) and 42(ii) of NDPS Act, are not relevant in the present case. It is also relevant to note that on getting the information, before conducting the search, PW4 had prepared Ext.P3 search memo, which sent to the court and it Crl. APPEAL No.638 of 2009 9 can be treated as compliance of S.42 of NDPS Act, in the light of the proviso contained therein. In the light of the other facts and circumstances and the evidence involved in the case, I am not proposed to enter into more discussion, regarding the question raised by the counsel with respect to the non-compliance of S.42 of NDPS Act. 7. Though the learned Public Prosecutor opposed the contentions raised by the learned counsel for the appellant, the learned Public Prosecutor miserably failed to convince this court that, the articles allegedly seized from the house of the accused, were produced before the court on any date, before the commencement of the trial. It is pertinent to note that, no property list and no forwarding note are produced in the court below and no record of the court is also produced showing that, the properties were produced before the court and the court has acknowledged the receipt of the same. It is also relevant to note that, no seizure mahazar was prepared and produced in this case. The prosecution, to substantiate its claim that the contraband article detected and seized from the house of the accused, heavily relied Crl. APPEAL No.638 of 2009 10 upon Ext.P1 search list. I have carefully perused Ext.P1 search list and there is nothing to show that the articles mentioned therein has produced before the court below. At the end of Ext.P1 search list, it is shown that the same is being forwarded to the court along with a copy of FIR and there is endorsement to the effect that the articles being produced before the court. Going by the evidence of PW4, it can be seen that on the basis of the communication passed to the crime S.I., Sri.Ganesan, he came to the spot preparing a search list. According to the prosecution, the search was conducted by Pws.1 and 4, in the presence of other independent witnesses and if that be so, how the version of the prosecution can be relied and acted upon, that Ext.P1 search list was prepared by Mr.Ganesan, the crime S.I. So the evidence in this regard, especially the version given by PW1, is not tallying with the evidence of PW4 and the prosecution evidence itself is contradictory in nature regarding the seizure. 8. It is also relevant to note that, as per the evidence of Pws.1 and 4, they weighed the entire 144 packets together, without removing the papers, ie., M.O.2 series, used for rapping Crl. APPEAL No.638 of 2009 11 the substance. The above version of the prosecution witnesses is sufficient to hold that the prosecution has no specific case regarding the actual weight of the contraband article, allegedly recovered from the house of the accused and the absence of the above fact has a bearing since the punishment depends upon the quantity involved. So the manner under which the contraband articles are seized and weighed caused high prejudice to the accused. 9. It is also relevant to note that, as discussed and indicated above, in the absence of any contemporaneous document or evidence with respect to, producing the contraband article before the court below, it is quite unsafe to convict the accused for the alleged possession of ganja. Even according to the prosecution, the seizure was effected on 18.5.2005 but there is no evidence as to when the said contraband article was produced before the court. It is true that in Ext.P2, there is an endorsement to the effect that, the samples received in the chemical analysts lab, is on the basis of a letter dated 15.6.2006 from the court. Simply on the basis of the said endorsement, it can not be held that the Crl. APPEAL No.638 of 2009 12 articles were in the safe custody of the court. Even according to PW5, it is he who sent a letter to the court requesting to send the articles for chemical analysis and the same was done only on 15.6.2006 and that too when he had occasion to see the CD file. Thus, it is clearly brought out from the evidence and materials on record that, the prosecution has no idea as to, who was the authority under whom the contraband articles were kept after its seizure on 18.5.2005. This court in the decision reported in Sasidharan Vs. State of Kerala [2007(1) KLT 720] has held that, the prosecution has a duty to prove that it was the sample taken from the contra band liquor seized from the accused, which had reached in the hands of the Chemical Examiner in a fool proof condition. It has held that, without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper proof despatch, the prosecution can not be held to have brought home the offence against the appellant. In the very same decision it was also held that, the Magistrates have to take care Crl. APPEAL No.638 of 2009 13 that contemporary proceedings evidencing and drawing of sample and sending the same to the Chemical Examiner in a tamper proof condition are recorded in proceedings before the court. On examination of the facts and circumstances involved in the present case in the light of the above decision and especially when there is no explanation from the side of the prosecution regarding the safe custody of contraband article and the absence of evidence regarding he endorsement of contraband article with the court, I am unable to concur the findings arrived on by the court below and the conviction recorded thereunder. Therefore, I have no hesitation to hold that because of the irregularity and illegal procedure adopted by the prosecution agency in the case of seizure and investigation, the prosecution has miserably failed to prove the allegation against the accused/appellant beyond reasonable doubt and consequently the benefit will go in favour of the accused/appellant. Therefore, the conviction recorded by the court below is liable to be set aside and I do so. In the result, this Criminal Appeal is allowed setting side the judgment dated 29.11.2008 in S.C.No.34/07 of the Court of Addl. Crl. APPEAL No.638 of 2009 14 Sessions Judge, Fast Track Court-III, Trivandrum and the appellant/accused is acquitted of all the charges levelled against him. As the appellant/accused is acquitted of all the charges levelled against him, he is entitled to get released from jail forthwith, if he is not required in any other case. The Crl. Appeal is allowed accordingly. The Registry is directed to communicate the Gist of Judgment. V.K.MOHANAN, Judge. ami/