IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933 CRL.A.No. 1700 of 2011() ------------------------------------- SC.17/2011 OF ADDITIONAL SESSIONS COURT-I, THIRUVANANTHAPURAM. .................... APPELLANT(S): ----------------------- ULRICH WEITZ, S/O.MANFRED, BUNTENTORE, STRINWEG, 331, 28201, BREMEN, GERMANY. BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.P.M.SANEER SRI.V.S.THOSHIN SMT.A.NEENA JOSE RESPONDENT/COMPLAINANT -------------------------------------------- STATE OF KERALA BY CIRCLE INSPECTOR OF POLICE, VARKALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.LOWSY A. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs V.K.MOHANAN, J. ------------------------------- Crl.A.No.1700 of 2011 ------------------------------- Dated this the 30th day of November, 2011. J U D G M E N T A foreign citizen, who is the sole accused in S.C.No.17 of 2011, is the appellant herein, and in this appeal he challenges the conviction and sentence imposed on him, for the offence punishable under Section 21(b)(ii)(B) of Narcotic Drugs and Psychotropic Substances (Amendment) Act 1998 (hereinafter referred to as 'the Act'), vide judgment dated 19.8.2011 of the court of the Additional Sessions Judge-I, Thiruvananthapuram. 2. The prosecution case is that on 26.10.2010 at about 4.30 p.m. the Sub Inspector of police, Varkala police station, received a telephonic information that one foreigner wearing blue trousers was indulged in selling narcotic drug at Helipad ground, Varkala. On receiving the said information, according to the prosecution, PW1, the then Sub Inspector of police, Varkala, reduced the same 2 Crl.A.No.1700 of 2011 into writing and after forwarding the report to his immediate superior, proceeded to the spot along with PW6 and he identified the accused on the basis of the description received and he approached the accused and ascertained his name and address and at that time the accused was found carrying a rose colour bag in his hand and when questioned, the accused answered that there was hashish inside the bag. On receiving such information, according to PW1, he gave information to the police station to bring PW4, the gold appraiser, and according to PW1, after complying with the requirement under Section 50 of the Act, he searched the body of the accused in the presence of the Circle Inspector of Excise, Attingal, but nothing recovered from the body of the accused. Thereafter, on further examination of the rose colour bag which was found in the possession of the accused, PW1 could find a plastic cover, small packets of round shaped and stick shaped hashish. According to the prosecution, the accused was arrested on the spot at 5.45 p.m. Thus according to the 3 Crl.A.No.1700 of 2011 prosecution, after excluding the weight of the weighing machine, that found inside the bag of the accused, the bag as well as the contraband article were found to be 824.5 gms of weight. Thereafter according to PW1, he had seized the contraband article and the material objects as per Ext.P1 mahazar and thereafter removed the accused as well as the contraband article and documents to the police station. It is also the case of the prosecution that, on 27.10.2010 a search was conducted at room no.203 of the Thiruvathira beach resort, Varkala, where the accused was staying at the relevant time but no contraband article was recovered from there. Thus according to the prosecution, on 27.10.2010 the accused was produced before the committal court. 3. On the basis of the above allegation, crime No.1109 of 2010 was registered in the Varkala police station for the offence punishable under Section 20(b)(ii)(B) of the NDPS Act, 1985, and on completing the investigation, a formal report was filed before the Sessions court, 4 Crl.A.No.1700 of 2011 Thiruvananthapuram. On the production of the accused, after hearing the prosecution as well as the defence, a formal charge was framed against the accused for the offence punishable under Section 20(b)(ii)(B) of the NDPS (Amendment) Act and when the said charge was read over and explained to the accused, he denied the same and pleaded not guilty. Thereafter, the prosecution has adduced its evidence consists of the deposition of Pws.1 to 7 and documents Exts.P1 to P24. Beside the above, M.O.s.(1) to (9) were identified and marked as material objects. On the basis of the above evidence and materials, the trial court has finally held that the accused is guilty of the offence punishable under Section 20(b)(ii)(B) of the Act and accordingly he is convicted thereunder. On such conviction, the trial court sentenced the accused/appellant to undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs.50,000/- and in default of payment of fine, the accused is directed to suffer simple imprisonment for one year. Set off is allowed under Section 428 of Cr.P.C. It is 5 Crl.A.No.1700 of 2011 the above findings, conviction and sentence challenged in this appeal. 4. I have heard Sri.Sasthamangalam S.Ajithkumar learned counsel appearing for the appellant and Smt.Lowzy A., learned Public Prosecutor for the state. I have also perused the judgment of the trial court. 5. The learned counsel for the appellant vehemently submitted that, the prosecution has miserably failed to establish its case beyond reasonable doubt and according to the learned counsel, on a close analysis of the evidence and materials on record, it can be seen that the entire case of the prosecution is a fabricated one. In support of the above submission, the learned counsel took me mainly through the deposition of Pws.1, 3 and 6 and submitted that the prosecution's own materials, especially the documentary evidences contradict each other on several vital aspects and the same rendered the prosecution case as unbelievable. According to the learned counsel, though the prosecution has got a claim that PW1 received information about the 6 Crl.A.No.1700 of 2011 incident, there is no entry in the General Diary (GD) kept in the Varkala police station, where PW1 was working as Sub Inspector of police at the relevant time. It is also pointed out by the learned counsel that though in Ext.P3 it is stated that, PW1 received the information at 4.30 and PW6, the Circle Inspector, made an endorsement at 4.55, in Ext.P2 FIR, the information received is shown as at 7.15 p.m. So regarding the actual time of the receipt of information, there is no believable and correct evidence. It is also the submission of the learned counsel that even if the prosecution case is believed as, what spoken to by PW1, ie., 'only after receiving the information, he proceeded to the place of occurrence and seized the contraband article as per Ext.P1 and arrested the accused as per Ext.P5 arrest memo under Ext.P6 inspection memo,' there is no explanation for the prosecution as to how the crime number find a place in Exts.P1, P5 and P6 documents, which claimed to have prepared at the place of occurrence 7 Crl.A.No.1700 of 2011 especially, when Ext.P2 FIR is registered only at 7.15 p.m. on 26.10.2010. It is also pointed out by the learned counsel that though Ext.P1 and other connected documents reached before the Magistrate at the time of producing the accused, Ext.P10 certificate claimed to have issued by PW4 on 26.10.2010, has not produced before the learned Magistrate. After inviting my attention to Ext.P13 document, the learned counsel submitted that Ext.P10 was not in existence on 26.10.2010 and the same is a fabricated document to fill up the lacuna that occurred when Ext.P1 was prepared. The learned counsel has also submitted that, Ext.P3 document which was allegedly prepared by PW1 is not free from doubt and therefore the claim of the prosecution that PW1 has complied with the mandate prescribed under Section 42 of the Act cannot be accepted. If that be so, there is total failure from the part of the prosecution in strictly complying with the provisions contained under Section 42 and therefore the accused is entitled to get a clear acquittal on that ground alone. 8 Crl.A.No.1700 of 2011 According to the learned counsel, there was no search and seizure as claimed by the prosecution and the accused/appellant is implicated in the above crime and arrested him on 27.10.2010 connected with the seizure effected by the police in some other case. It is pointed out by the learned counsel that the prosecution has miserably failed to offer any explanation for not producing the accused/appellant before the learned Magistrate on 26.10.2010, if the claim of the prosecution is correct that the accused was arrested on 26.10.2010. Thus according to the learned counsel, the prosecution has miserably failed to prove the case against the accused beyond reasonable doubt and therefore the findings and the conviction and sentence imposed by the trial court, require interference and the same are liable to be set aside. 6. On the other hand, the learned Public Prosecutor submitted that Ext.P10 cannot be treated as a concocted document because in Ext.P1 mahazar itself, PW1 has described about the procedure adopted by himself in the 9 Crl.A.No.1700 of 2011 seizure of the contraband article and drawing of the samples etc., and it is specifically stated in Ext.P1 that, PW4 was brought at the spot and he weighed the material objects. It is pointed out by the learned Public Prosecutor that during the trial, neither PW1 nor PW4 was cross examined with reference to Exts.P10 and P13 documents. It is also the submission of the learned Public Prosecutor that there is no mandatory provision either in the NDPS Act or in the Cr.P.C. to produce all the documents at the time of the production of the accused before the court. The learned Public Prosecutor after inviting my attention to the entries that seen in Exts.P1, P2 and P3 documents submitted that, on receiving Ext.P3 information by PW1, after having reducing the same into writing and after complying with the procedure contemplated under Section 42, PW1 proceeded to the spot and thereafter effected the recovery and arrest of the accused and then proceeded to the police station, where he registered Ext.P2 FIR. So, about the time given in Exts.P1, P2 and P3, there is no conflict. It is pointed out by 10 Crl.A.No.1700 of 2011 the learned Public Prosecutor that in Ext.P2, the time of occurrence is shown as 5 p.m. and the registration of the crime is shown as 7.15 and there is no conflict with respect to the time that recorded in the above documents. According to the learned Public Prosecutor, the contradictions or infirmities pointed out by the learned counsel for the appellant are not sufficient to disbelieve the case of the prosecution and to acquit the accused. 7. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the learned Public Prosecutor. I have perused the judgment of the trial court and scrutinized the deposition of the prosecution witnesses and the documents and materials produced. 8. As I indicated earlier, to establish the prosecution allegation against the appellant/accused, the prosecution mainly depends upon the evidence of PW1, who is the Officer who detected the crime. When PW1 was examined, he had deposed in terms of the prosecution allegation and 11 Crl.A.No.1700 of 2011 according to him, while he was in Varkala police station he had received a telephonic information that one foreigner wearing blue trousers is engaged in selling narcotic drugs at Helipad ground, Varkala, and after despatching the same to the superior officer, the Circle Inspector of police, who is examined as PW7, proceeded to the spot along with PW6 and driver P.C.3426 and when they reached at the spot at about 5 p.m., the accused was seen standing at the western side of the Helipad ground and PW1 approached him and ascertained his name and address. According to PW1, the accused was carrying a rose colour bag in his hand and when the accused was questioned about the contents of the said bag, according to PW1, the accused answered that there was hashish in the bag. According to PW1, on receiving such answer, he had contacted Varkala police station, to bring a gold appraiser to the spot and accordingly PW4 arrived at the spot. It is the further case of PW1 that he asked the accused as to whether he requires the assistance of a gazetted officer to search his body and 12 Crl.A.No.1700 of 2011 according to PW1 the accused answered in the affirmative. PW1 has deposed that, at about 5.40 p.m., the Circle Inspector of Excise, Attingal, reached at the spot and according to PW1, the body of himself, PW6 and the driver of police constable were searched by the Circle Inspector of Excise, Attingal and thereafter according to PW1, he searched the body of the accused in the presence of Circle Inspector of Excise, Attingal, but nothing recovered from such a body search. PW1 further deposed that he had also inspected the rose colour bag which was found in the possession of the accused. According to PW1, inside the bag he could find a plastic cover, small packets of round shaped and stick shaped hashish. Thus according to PW1, the accused was placed under immediate arrest on the spot at about 5.45 p.m. as per Ext.P5 arrest memo. PW1 has stated that inside the bag there was also a weighing machine. According to PW1, the contraband articles found in the bag and the bag were also weighed by PW4 and the total weight of the same was found to be 824.5 gms. 13 Crl.A.No.1700 of 2011 According to PW1, he took the contraband article from the plastic cover and placed the same on a white paper and the bag and the plastic cover alone were weighed separately and it was found to be 25.790 gms. The contraband articles were examined separately and it was found that there were 136 numbers of small circular shaped and three big circular shaped narcotic drug and five stick shaped narcotic drug. According to PW1, all that were separately packed and sealed. According to him, he had prepared Ext.P1 mahazar, in which he had elaborately recorded the procedure adopted by him for the inspection, seizure and drawing of samples from each item of the contraband articles and the packing and marking of the material objects. When PW1 was examined, he had identified M.O.s.1 to 9 series and had also identified Ext.P1 mahazar and other documents and thus the prosecution has got marked Ext.P10 letter given to PW1 by PW4-the gold appraiser, stating about the weight of the contraband article. According to PW1 thereafter, himself and party 14 Crl.A.No.1700 of 2011 returned to the police station along with the contraband articles, the material objects and the accused and Ext.P2 FIR was registered. Ext.P5 is the arrest memo with respect to the arrest of the accused and Ext.P6 is the inspection memo. According to PW1, intimation of arrest was given to German Consulate, Chennai, as per Ext.P7. It is also the case of PW1 that on 27.10.2010, he had conducted search in room no.203 of the Thiruvathira beach resort, Varkala, where the accused was residing at the relevant time. But according to PW1, the search was not fruitful. Ext.P8 is the search memo and Ext.P9 is the search list connected with the said search. According to PW1, the accused was produced before the court on 27.10.2010 and filed a remand application ie., Ext.P11. According to PW1, the passport of the accused was taken into custody from PW7 as per Ext.P20 mahazar. PW5 is an attestor to Ext.P20. The contraband articles seized were sent to the court as per Ext.P14 series of property list. Ext.P16 is the forwarding note submitted by PW1, so as to send the material objects to 15 Crl.A.No.1700 of 2011 the Forensic Science Laboratory. Thus Ext.P18 report was furnished by PW2, after the examination of the material objects and as per Ext.P18 report, the contraband article was Cannabis (hashish or charas). Thereafter, the investigation was undertaken by PW7, who questioned the witnesses and seized the register from the Thiruvathira beach resort, Varkala, from PW3, as per Ext.P22 mahazar. Ext.P23 passport was seized from CW5 and Ext.P23 passport was forwarded to the court as per Ext.P24. PW7, after verifying the investigation conducted by PW1, laid the charge before the court. These are the evidences formed basis for the findings and conviction recorded by the trial court against the accused. 9. The specific case set up by the defence is to the effect that, the accused came to India on tourist visa on 3.10.2010 and he reached at Varkala on 14.10.2010 and he had stayed at Thiruvathira beach resort, Varkala belonged to PW3. According to him, on 25.10.2010 when he was sitting with his friends and foreign tourists at Kerala Cafe at 16 Crl.A.No.1700 of 2011 Varkala beach and while smoking ganja which he bought from PW3 few days back for Rs.500/-, the police people came and arrested him and removed to the police station. According to the defence, after some time, PW3 was brought to the police station and the police had seized hashish from the resort of PW3 and PW3 had escaped from the criminal liability and instead of PW3, the accused was falsely implicated, since he has refused to accede to the demand of bribe by the police. 10. In the light of the rival contentions advanced by the counsel for the appellant and the learned Public Prosecutor and in the light of the materials and evidence on record, which I referred above, the points that come up for consideration is, whether the findings of the Judge of the trial court that the accused is guilty of the offence punishable under Section 20(b)(ii)(B) of the Act is correct and whether the prosecution has succeeded in establishing its allegation against the accused/appellant beyond reasonable doubt. 17 Crl.A.No.1700 of 2011 11. The allegation against the appellant is that, the accused was found having in possession of hashish of 842.5 gms, which he kept for the purpose of sale with weighing instrument and 5 Indian currency of Rs.100/- denomination at Varkala papanasam helipad ground at about 5 p.m. on 26.10.2010 and thereby he had committed the offence punishable under Section 20(b)(ii)(B) of the (Amendment) Act. The above allegation is very serious and in proof of the same, the accused is liable to be punished with rigorous imprisonment for a term that may extend to 10 years and with a fine which may extend to Rs.1 lakh. Considering the rigor and vigour contemplated by the NDPS Act, it is equally incumbent upon the prosecution agency to prove the allegation against the accused by adducing cogent and satisfactory evidence. In the present case, in the light of the arguments advanced by the learned counsel for the appellant as well as the learned Public Prosecutor, this Court has to examine and reappraise the evidence and materials on record and to find out how far the prosecution 18 Crl.A.No.1700 of 2011 has succeeded in discharging its statutory obligation in terms of various provisions contained in NDPS Act and proving the case against the accused. 12. The learned counsel for the appellant strenuously submitted that the entire prosecution case is a fabricated one and the appellant is falsely implicated in the above crime. This is the contention taken by the appellant at the very inception of the prosecution case. According to the prosecution, the proceedings initiated on receipt of Ext.P3 information by PW1. As per the deposition of PW1, he received an information about the illicit traffic of narcotic drugs and he reduced the information into writing as per Ext.P3. According to him, he received information at 4.30 p.m. on 26.10.2010 and he despatched the information to his immediate superior officer-PW7, in terms of Section 42 (3) of the NDPS Act. The learned counsel for the appellant submitted that Ext.P3 itself is a concocted document. According to the learned counsel, in Ext.P2 FIR the time of occurrence is shown as 5 p.m. on 26.10.2010 but the 19 Crl.A.No.1700 of 2011 information recorded in Ext.P2 as at about 7.15 p.m. The learned counsel took me through Ext.P1 mahazar and Ext.P2 FIR and shown endorsement therein that the information received by PW1, has been entered in the G.D. kept in the police station. Though in Exts.P1 and P2 there was some endorsement to the effect that the information received in the police station is entered in the G.D., PW1 has no such case. In order to prove that the case of the prosecution is incorrect, the accused has preferred an application before the trial court for the production of the G.D., but no order was passed there. The learned counsel submitted that Ext.P1 and other documents are not free from doubt and therefore it was incumbent upon the prosecution to produce the G.D. so as to convince the court regarding the correctness of the claim of the prosecution about the information which alleged to have received by PW1. I find some force in the above submission. In Ext.P1 it is recorded that, ...... “ പരറയന വ സമത ച ഒരള വ വര 20 Crl.A.No.1700 of 2011 അറ യ കകയല ഞന തലമയ പരഖമ ല വരകല പല  രക ള ഇന "ക"റ വ വര അറ യ ച പ$ഷ, ലഭ ച അറ വ GD -ല പരഖ"(ടത യപ$ഷ......” . The same is the endorsement seen recorded in the F.I. statement of Ext.P2. But when PW1 was examined, he had denied the entry regarding the information he received, in the G.D. kept in the police station. So Ext.P3 information claimed to have received by PW1, is under doubt. Every movement of the Station House Officer and the police personnels attached to the police station are expected to record in the G.D. kept in the police station. Even in Exts.P1 and P2 it is recorded that Ext.P3 information was recorded in the G.D. If that be so, the G.D. is a very vital document, which should have been subjected to the scrutiny of the court. But in the present case, the G.D. is not produced inspite of the petition filed by the accused. But PW1 says that no such entry was made in the G.D. Therefore, the prosecution evidences, ie., Exts.P1 and FI statement in Ext.P2 and the evidence of PW1, are in 21 Crl.A.No.1700 of 2011 serious contradiction with respect to the entry in the G.D. 13. The above failure on the part of the prosecution and its contradiction are high-lighted by the learned counsel for the appellant as part of his contention that, the documents are fabricated by the prosecution. In support of the above contention, the learned counsel has also pointed out that Ext.P2 FIR is not a genuine one, if the endorsement therein are correct. According to the learned counsel, even going by the evidence of PW1, it can be understood that PW1 had proceeded to the place of occurrence on receiving Ext.P3. After the seizure of the contraband article and the arrest of the accused, himself and party returned to the police station and thereafter registered Ext.P2 FIR. The learned Public Prosecutor has pointed out that, the timings given in those documents are correct and there is no contradiction. But according to me, Ext.P2 cannot be treated as a true and genuine FIR because in Ext.P1 mahazar, Ext.P5 arrest memo and Ext.P6 inspection memo itself, PW1 has recorded the crime number that bearing in 22 Crl.A.No.1700 of 2011 Ext.P2, whereas Exts.P1, P5 and P6 were prepared at the place of occurrence. Therefore, the submission of the learned Public Prosecutor is not tallying with the procedure deposed by PW1, that after receiving Ext.P3 information and seizure as per Ext.P1 and arrest of the accused as per Exts.P5 and P6, Ext.P2 FIR was recorded. If Ext.P2 FIR is prepared after the seizure and arrest of the accused, Ext.P2 crime could not have found a place in those documents. Therefore, the genuineness of Exts.P2 and P3 are not free from doubt. 14. The learned counsel for the appellant has further pointed out in support of his contention that,