IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 CRL.A.No. 2088 of 2009() ------------------------------------- SC.38/2008 of SPL.COURT (NDPS ACT CASES), VADAKARA ................................................................ APPELLANT(S): ACCUSED ----------------------------------------- ANDICHAMI @ ANDIAPPAN, S/O. OCHATHEVAR KULUKKIL HOUSE, SHOLAYUR, ATTAPPADI. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): COMPLAINANT & STATE ----------------------------------------------------------------- 1. THE SUB INSPECTOR OF POLICE, PERINTHALMANNA. 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.C.S.HRITHWIK, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. APPEAL No.2088 of 2009 ------------------------------- Dated this the 23rd day of March, 2010. J U D G M E N T This appeal is directed, against the judgment dated 29.9.09 in Session Case No.38/08 of the Court of the Special Judge (NDPS Act cases), Vadakara, at the instance of the sole accused therein, challenging his conviction and sentence u/s.20 (b)(II)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to for short as 'the NDPS Act' only). 2. The prosecution case is that on 15.6.2008 at about 4.55 p.m., the accused was found in possession of 2.100 kg of ganja in front of KSRTC bus stop at Perinthalmanna and subsequently it came to the notice of the Detecting Officer that, he had also possessed another 30 kg. of ganja and thus seized altogether 32 kg of ganja from his possession and thus he had committed the offence punishable u/s.20(b)(II)(C) of the `NDPS Act'. 3. On the basis of the said allegation, Crime No.474/08 was registered in the Perinthalmanna Police Station. After completing Crl. APPEAL No.2088 of 2009 2 the investigation, a report was filed in the court below on 11.12.2008. After hearing the prosecution as well as the defence, a formal charge was framed against the accused for the above offence and the same was read over and explained to the accused, who denied the charge and pleaded not guilty, which resulted in the further trial, during which the prosecution adduced its evidence consists of the oral testimony of Pws.1 to 13 and the documentary evidence such as Exts.P1 to P18 and material objects namely M.Os 1 to 10, which were produced and identified during the trial. No evidence, either oral or documentary, was produced from the side of the accused. On the basis of the rival pleadings and the materials on record, the Trial Court formulated four points for its consideration. The evidence and the incriminating circumstances, which emerged during the evidence of prosecution, were put to the accused u/s.313 of Cr.P.C. and he denied the same and maintained the stand of total denial. Based upon the available materials and evidence on record, the Trial Court found that the accused is guilty of the charge levelled Crl. APPEAL No.2088 of 2009 3 against him and accordingly he is convicted u/s.20(b)(II)(C) of the NDPS Act and consequently he is sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1 lakh and in default he is directed to undergo rigorous imprisonment for a further period of 6 months . Thus on the basis of the above impugned verdict, the accused is undergoing the sentence imposed against him and he is in custody right from the date of his arrest ie., on 15.6.2008. It is the above conviction and sentence challenged in this appeal. 4. I have heard Shri T.G.Rajendran, the learned counsel appearing for the appellant as well as the learned Public Prosecutor appearing for the State. 5. According to the prosecution, PW12 the Circle Inspector of Police of Perinthalmanna Police Station, who is the Detecting Officer, received an information that one person wearing `black kalli mundu' and `black kalli shirt', who is about at the age of 50 years, from Attappadi, found in possession of ganja in a big shopper in front of the KSRTC bus stand at Perinthalmanna and Crl. APPEAL No.2088 of 2009 4 thus after preparing a report u/s.42 and sending the same to his immediate superior officer, the Dy.S.P., he himself and the parties proceeded to the spot and on locating the accused, he was asked, whether he required the presence of any of the officers as contemplated u/s.50 of the NDPS Act and as he answered positively, pursuant to which, a written request was sent to PW2, who is the Tahasildar, Perinthalmanna and in the presence of PW2, PW12 conducted a search and recovered 2.100 kg of ganja as per Ext.P1 seizure mahasar, which was kept in a big shopper. The ganja thus seized is marked as M.O.1. 6. It is the further case of the prosecution that, after the seizure of ganja from the possession of the accused, he was arrested and when questioned under custody, he had revealed that he had kept about 30 kgs. of ganja in his residential house bearing No.S.P.3/307, and the said house was searched and thus seized another 30 kgs. of ganja as per Ext.P5 seizure mahazar. PW1, the Head Constable attached to the Perinthalmanna Police Station, was one of the police party who Crl. APPEAL No.2088 of 2009 5 accompanied PW12, the Detecting Officer and he had deposed in terms of the prosecution case and through him M.Os 1 to 10 were identified. The Tahasildar, Perinthalmanna, who was examined as PW2 also deposed in terms of the prosecution case and Ext.P1 was identified and the signatures that contained on the labels pasted on M.Os 1 and 10 were also identified. PW3 is the attestor to Ext.P2 scene mahazar, with respect to the first seizure. PW4 is also another Head Constable, who was one among the raiding party. PW5 is a person cited by the prosecution to prove that the weighing machine, which was used for weighing the materials, at the time of the first seizure, was taken from his bakery wherein he was working as the Food Supervisor. PW6 is another attestor to Ext.P1 seizure mahazar. PW7, is the Village Officer who prepared Ext.P3 sketch plan with respect to the first seizure. PW8 is another Village Officer who prepared Ext.P4 sketch plan related to the second seizure effected from the residential building of the accused, mentioned earlier. Pws.9 and 10 are the attestors to Ext.P5 seizure Crl. APPEAL No.2088 of 2009 6 mahazar, with respect to the 2nd recovery effected from the house mentioned above. Ext.P6 is the scene mahazar related to the second seizure on which PW11 is the attestor. When PW12, the C.I. of Police was examined, the prosecution has proved Exts.P7 to P18 documents through him. Thus Ext.P7 is the report prepared and sent by PW12 to his immediate superior officer ie., Dy.S.P., u/s.42 of NDPS Act. Exts.P8 and P9 are the arrest memo and inspection memo respectively. Ext.P10 is the FIR, suo motu registered by PW12. Ext.P11 is the confession statement of the accused recorded by PW12. Exts.P12 and P14 are property list and forwarding note respectively. Ext.P13 is the report prepared and sent by PW12 u/s.57 of NDPS Act. Ext.P15 is a report, filed by PW12 to alter the section that contained in Ext.P10 FIR. Ext.P16 is the chemical analysis report. Exts.P17 and P18 are the ownership certificates with respect to the shed attached and maintained therein to the house mentioned and the ownership of the building from where the second seizure was effected and those documents were proved through PW13, the Crl. APPEAL No.2088 of 2009 7 Secretary of Sholayur Grama Panchayath. 7. Thus on the basis of the above materials, it is evident that at the first instance, ganja was found in the big shopper and on weighing, it was found that it was having the weight of 2kg and by Ext.P1 seizure mahazar, two samples were drawn, each containing 50 gms and the same were properly packed, sealed and the label is affixed containing the signatures of witnesses including Pws.2 and 12 and the accused. The remaining 1.90 kg. of ganja were separately packed in the same way. As per the proceedings, after the seizure of the ganja from the big shopper, PW12 conducted search of the purse of the accused and thus recovered from the waist of the accused, 100 gms of ganja, from which also the sample was taken and separately labelled. It is thereafter, the accused was arrested. 8. The accused and the contraband article, which seized from the possession of the accused, were brought to the police station, whereupon Ext.P10 FIR was registered. According to PW12, during the questioning of accused under custody, he Crl. APPEAL No.2088 of 2009 8 revealed that the balance quantity of ganja was kept at his house, on the basis of which PW12 and party proceeded to the house of the accused, ie., Kulukkil House, at Sholayur, Attappadi, Aanakkatti route. It is the specific case of the prosecution, as revealed from the deposition of PW1 that, in front of the house of the accused, there is a tea shop and the accused took out the key of the house, which was kept beneath one of the benches in the above mentioned tea shop and using that key, the accused opened the house and he took another bunch of keys from the drawer of a table, kept in the verandah of the house and thereafter he opened other rooms of the house. According to PW1, in the bed room 3 sacks were found under the cot, out of which, 2 were plastic sacks and one was jute sack. According to the prosecution, PW12 opened the 3 sacks which contained ganja. The said ganja was also seized wide separate mahazar after drawing separate samples from each of the sacks. Thereafter the accused was produced before the Court with the remand report and the contraband articles and the materials Crl. APPEAL No.2088 of 2009 9 were also produced before the Court as per Ext.P12 property list. As per Ext.P14 forwarding note, a request was made to send the samples for chemical analysis, on the basis of which Ext.P15 chemical analysis report was obtained. It is on the basis of the above materials and evidence, the trial court found that the accused is guilty of the charges levelled against them. 9. The learned counsel Mr.T.G.Rajendran appearing for the appellant, strenuously submitted that the entire proceedings adopted by the prosecution for the seizure of the contraband article from the alleged possession of the accused is contrary to the procedure prescribed by the NDPS Act. The learned counsel for the appellant is specific in his submission that, the first seizure claimed by the prosecution is conducted in gross violation of the mandatory provisions contained in Section 50 of the NDPS Act and therefore the conviction entered into by the trial court with respect to the first seizure is liable to be set aside. The counsel also submitted that, the second seizure, is also diametrically opposed to the provisions contained in the special Crl. APPEAL No.2088 of 2009 10 enactment namely, the NDPS Act. The learned counsel pointed out that, according to the prosecution, the disclosure about 30 kg of ganja was made by the accused, while he was in custody, pursuant to the seizure and arrest, that effected on 15.6.2008. By inviting my attention to Section 42 of NDPS Act, the learned counsel submitted that even if the entire prosecution case is admitted as true, the disclosure which allegedly confessed by the accused while he was under custody, is a new information, therefore the investigating agency has to proceed under the mandatory provisions contained in Section 42 of NDPS Act. According to the learned counsel, in the present case no such step was taken by the prosecution and therefore the conviction and sentence of the accused, connected with the second seizure is liable to be set aside. 10. On the other hand, the learned Public Prosecutor submitted that the first seizure was effected by fully complying with the procedure, prescribed in Section 50 of NDPS Act and as evidenced by the deposition of PW2 and Ext.P1 seizure Crl. APPEAL No.2088 of 2009 11 mahazar, it is sufficient to show that there is no procedural defect with respect to the first seizure. It is also the submission of the learned Public Prosecutor that the second seizure is effected, as a continuation of the first search and seizure and therefore the trial court is absolutely right in finding the guilt of the accused for the possession of the entire quantity of ganja including that of the 2nd seizure and therefore no interference is warranted. 11. I have carefully considered the arguments advanced by both the counsel for the appellant as well as the learned Public Prosecutor and also perused all the materials on record and also the evidence. 12. The first contention raised by the learned counsel for the appellant is that PW12, the C.I. of police, Perinthalmanna Police Station, who is the Detecting Officer, himself is a Gazetted Officer, and if the prosecution case is true, there was no necessity for him to procure the presence and permission of PW2, another the Gazetted Officer. It is his further contention that, inspite of the above fact, though PW12 brought PW2 to the Crl. APPEAL No.2088 of 2009 12 spot, the search was not conducted in accordance with the procedure contained in S.50 of the NDPS Act. According to him, in the present case, the search was conducted in gross violation of the mandate contained in sub section 3 of S.50 of the NDPS Act. In order to substantiate the above submission, the learned counsel took me through Ext.P1 seizure mahazar and the depositions of PWs.2 and 12. It is submitted that nowhere in the deposition of PW2 or PW12 had stated that a direction or order was issued by PW2 to PW12 permitting him for conducting the search. According to the learned counsel, only after receiving an order from PW2, to conduct the search of the accused, PW12 can proceed with further. I am unable to accept the above contention. Section 50(3) reads as follows, “ the Gazetted Officer or the Magistrate before whom any such person is brought shall, if he has no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.” Crl. APPEAL No.2088 of 2009 13 In the present case, it is pertinent to note that, PW12 and party went to the first spot in pursuance of a secret information received by him. Before proceeding to the spot, PW12 send Ext.P7 report to his immediate superior officer namely, the Dy.S.P., u/s.42 of NDPS Act. It is also relevant to note that, in the case of 2.1 kg of ganja, the seizure was effected from the big shopper which was holding by the accused and the same was proved through the evidence of prosecution, especially, the oral testimony of PW2. According to me, in the given facts and circumstances of the case, being a Gazetted Officer, PW2 can discharge the accused in terms of the condition contained in S.50(3), if he was satisfied that there was no reasonable ground for search. But, he did not discharge the person on his satisfaction that there is scope for further search, since before the search of the person of the accused himself, 2.1 kg of ganja had already been detected from M.O.2 big shopper, which was held by the accused at the relevant point of time. Sub-section (3) of S.50 of NDPS Act does not mandate the Gazetted Officer or Crl. APPEAL No.2088 of 2009 14 the Magistrate to, pass an order either in writing or in oral to proceed with the search. The entire provisions contained in S.50 incorporated with a view to ensure that, the search and seizure were conducted in a proper way and the accused shall not be prejudiced in any manner. In the light of the above discussion and in the light of the materials and evidence on record, which I referred above, I am of the view that the contention raised by the counsel for the appellant with respect to the first seizure, does not appear to be a sound one and accordingly the same is rejected. No other grounds or contentions are raised with respect to the first seizure. 13. In the result, I approve the finding arrived on by the court below at point no.1 and accordingly, it is confirmed that the accused was found in possession of 2.100 kg. of ganja in front of KSRTC bus stand at Perinthalmanna on 15.6.2008 at about 4.55 p.m. 14. The second point raised by the learned counsel is mainly with respect to the second seizure, which according to Crl. APPEAL No.2088 of 2009 15 me, assumes importance in the light of the facts and circumstances involved in the present case. It is beyond dispute that the second seizure as per Ext.P5 was effected, on the basis of Ext.P11 confession statement of the accused, which is allegedly made by him while he was in custody due to the arrest in pursuance of the first seizure, that effected as per Ext.P1 seizure mahazar. According to the learned counsel, the statement itself, that contained in Ext.P11 is inadmissible u/s.27 of the Indian Evidence Act. The learned counsel pointed out that, even according to the prosecution the first seizure was effected, based upon an information received, which was recorded u/s.42 of the NDPS Act. If that be so, the same procedure has to be adopted. If the so called confession statement is true, the prosecution agency wanted to act upon such a disclosure statement, since it was acting under the provisions of the NDPS Act. According to the learned counsel, the alleged subsequent seizure, if the same is admitted as true, is the subject matter of another prosecution and the clubbing of Crl. APPEAL No.2088 of 2009 16 the second seizure with the first seizure has very much prejudiced the accused in setting up his defence in a proper way. It is also the contention of the learned counsel that, at the time of Section 313 questioning of the accused, no question was put to him with respect to the second seizure and under that count also, the accused was prejudiced. Whereas the learned Public Prosecutor submitted that, the second seizure is in pursuance of the first seizure, in which the accused is involved and repetition of the procedure u/s.42 of NDPS Act is not at all required. 15. The contention so raised, as I pointed out earlier, involves a vital question, which was not raised during the trial, as fairly conceded by the learned counsel for the appellant and as such there was no decision of the trial court on this issue. In this juncture, it is pertinent to note that though I have approved the finding of the trial court with respect to the first point regarding the seizure of 2.100 kg. of ganja, the sentence imposed under that count, which is contemplated by the NDPS Act, is only a maximum sentence of 10 years. But in the present case, the Crl. APPEAL No.2088 of 2009 17 total sentence awarded against the accused is 10 years of rigorous imprisonment. The said sentence was imposed on the finding that, the accused involved in contravention of the provisions of the Act whereby, he was found in possession of altogether 32 kg. of ganja, which will exceed the commercial quantity. If the prosecution is not able to substantiate the allegation by legally protecting the second seizure, in the light of the legal questions that raised by the counsel for the appellant, definitely the quantum of sentence has to be reconsidered by invoking appropriate provision. Therefore, the failure on the part of the defence, in raising the question before the trial court, whereby the trial court had no occasion to consider the question, might have a bearing on the issue of sentence and fate of the trial. Therefore, the question raised by the trial court under point No.2 and the finding thereon require reconsideration and the finding arrived on by the trial court under that point is liable to be set aside. As the question now raised by the learned counsel, has not been raised in the trial court and the trial court has no Crl. APPEAL No.2088 of 2009 18 opportunity to consider such a question, it is only proper to remand back the case for the proper consideration and fresh decision of the trial court. 16. In the light of the above discussions and the materials referred above, I am of the view that while maintaining the finding arrived on by the Court below under point no.1, the finding under point no.2 is liable to be set aside and the question shall be reconsidered by the trial court afreshly. Going by S.20 and various provisions contained in the NDPS Act, it can be seen that the said section contemplates punishment for contravention in relation to cannabis plant and cannabis. If the allegations are proved, certainly the court has to enter into a finding as contemplated by S.20 and on such a finding of conviction, adequate sentence has to be imposed depends upon the quantity involved. 17. In the present case as pointed out earlier, the trial court had imposed the present punishment on the finding that, the accused was found in possession of 32 kg of ganja, which is a Crl. APPEAL No.2088 of 2009 19 commercial quantity. Ofcourse, the trial court came into such a conclusion based upon the two seizure effected in the present case. With respect to the first seizure, this court as per the discussion made above, approved the finding of the court below. With respect to the second seizure, as I found earlier, the matter deserves to be remanded to the trial court for a fresh consideration and finding of the court below, regarding the second seizure. 18. The learned counsel relying upon the decision of this Court in Mohanan Vs. State of Kerala [2007(4) KLT 408], submitted that the investigation as well as the evidence with respect to the second seizure is liable to be rejected. It is also pointed out that, the accused is prejudiced because of the framing up of the consolidated charge based upon the two seizures. First of all, I am of the view that, the said decision is not applicable in the present case for various reasons. The facts involved in the case cited by the learned counsel are with respect to the prosecution, under the Provisions of the Abkari Act and the Crl. APPEAL No.2088 of 2009 20 subsequent seizure was effected from a second person though based upon an information furnished by the accused. In the present case, the allegation is under the provisions of the NDPS Act, where specific provisions are made with respect to the sentence based upon the quantity involved and the second seizure, was effected from the residential house of the appellant himself and the prosecution has no case that the contraband article, which is allegedly seized from the house of the appellant is kept by any other person. In the present case, the charge against the appellant is that he contravened the provisions of NDPS Act, for having possession of 32 kgs. of ganja. As pointed out earlier, the subsequent seizure on the basis of the confession statement made by the appellant is a matter to be reconsidered by the trial court. The learned Public Prosecutor relying upon the decision in Sajan Abraham Vs. State of Kerala [2001 (4) Crl.Law Journal 4002], submitted that the stringent nature of the provisions contained in the NDPS Act shall not be construed, so as to help the accused to escape from the clutches Crl. APPEAL No.2088 of 2009 21 of law. As I pointed out earlier, the question raised in this appeal by the learned counsel for the appellant is a vital question which has to be considered by the trial court, in the light