IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 16TH DECEMBER 2011 / 25TH AGRAHAYANA 1933 CRL.A.No. 471 of 2011(D) ------------------------ SC.10/2009 of SPL. COURT (NDPS ACT CASES), THODUPUZHA .................... APPELLANT(S): APPELLANT. ------------------------ MAHESH,CONVICT NO.5475, CENTRAL PRISON, TRIVANDRUM. BY ADV. ADV LUIZ GODWIN D COUTH[STATE BRIEF] RESPONDENT(S): RESPONDENT. -------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSEUCTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.LUIZ GODWIN D.COUTH (STATE BRIEF) SMT.LALIZA T.Y., PUBLIC PROCESUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl.A.No.471 of 2011 ------------------------------- Dated this the 16th day of December, 2011. J U D G M E N T The sole accused in S.C.(NDPS) No.10 of 2009 of the court of the Sub Judge for NDPS Act cases, Thodupuzha, is the appellant. In this appeal, he challenges his conviction and sentence imposed on him for the offence under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, vide judgment dated 14.9.2010 in the above sessions case. 2. The prosecution case is that, while Pws.1 and 2 alongwith other forest officials were on patrol duty, they found the appellant in a suspicious circumstances and on examination of the big shopper possessed by him, found that it contained ganja. As Pws.1 and 2 were not empowered officers to effect seizure, they took the appellant to Nachivayal Forest Station and informed PW3 who is an empowered officer and came to the Nachivayal 2 Crl.A.No.471 of 2011 Forest Station and arrested the accused and seized the contraband from his possession. Thus according to the prosecution, the accused has committed the offence punishable under Section 20(b)(ii)(B) of the NDPS Act. On the appearance of the appellant before the trial court, a formal charge was framed, after hearing the prosecution as well as the defence for the offence punishable under Section 20(b)(ii)(B) of the Act and when the said charge read over and explained to the accused, he denied the same and pleaded not guilty. Accordingly, the prosecution adduced its evidence consists of the oral evidence of Pws.1 to 3 and the documentary evidence of Exts.P1 to P4. The learned Judge of the trial court has finally found that the prosecution has succeeded in establishing its case of detection and seizure of the contraband from the accused and as such the possession of M.O.1 stand established and he is accordingly found liable for the offence punishable under Section 20(b)(ii)(B) of the Act. On such finding, the appellant is convicted thereunder. On such conviction the 3 Crl.A.No.471 of 2011 trial court sentenced the appellant to undergo rigorous imprisonment for 3 years and to pay fine of Rs.10,000/- and in default of payment of fine, the appellant is directed to undergo rigorous imprisonment for a further period of 6 months. It is the above findings and order of conviction and sentence challenged in this appeal. 3. As the appellant is undergoing imprisonment in pursuance to the judgment impugned in this appeal, he preferred this appeal from the jail. On receiving the above jail appeal, as directed by this Court, the Registry of this Court has appointed Adv.Sri.Luiz Godwin D.Couth from the panel of State Brief to defend the appellant. Thus I have heard Sri.Luiz Godwin D.Couth learned counsel for the appellant and Smt.Laliza T.Y. the learned Public Prosecutor. 4. As I indicated earlier, to prove the allegation against the appellant, the prosecution depends upon the evidence of Pws.1 to 3 and the documentary evidence such as Exts.P1 to P4. Pws.1 and 2 are the forest staff and 4 Crl.A.No.471 of 2011 when they were examined they have deposed in terms of the prosecution case. According to Pws.1 and 2, while they were on patrol duty along with the forest officials, they found a person while they were moving along Nachuvayal-I, Reserve forest, Aanakkalppetti (Paalam bhagam) road in Nachuvayal Forest and on seeing them, the person tried to escape from the place and thus they chased him and intercepted by applying reasonable force and on questioning his wearabouts and name, they realsied that he is one Mahesh, who was an absconding accused in several forest offences, including offence for cutting and removal of sandal. According to Pws.1 and 2, they further questioned the appellant and inspected the contents of the bag which was found in possession of the appellant and when the appellant attempted to screen the same, they forcefully obtained the big shopper and on further examination of the same, they found a packet rapped with a paper and on opening the said paper packet, they identified the content as dried ganja. According to Pws.1 and 2, for further 5 Crl.A.No.471 of 2011 questioning of the accused, he was taken to the Nachivayal Forest Station and thereafter the accused was questioned elaborately. According to Pws.1 and 2, on such detailed questioning the accused revealed that he had absconded apprehending arrest by the forest officials and went underground in Udumalpett in Tamilnadu and he came in the morning to his house and he had purchased 1.5 kg. of ganja from one Ramachandran for a sum of Rs.3,000/-. Pws.1 and 2 are attestors to Ext.P1 mahazar. Thus the prosecution has got marked Ext.P1 through PW1. As indicated earlier, PW2 is the person who accompanied PW1 and he deposed in terms of the deposition of PW1. PW2 is also an attestor to Ext.P1. 5. The other witness examined by the prosecution is PW3 who is the Range officer. When PW3 was examined he had deposed in terms of the prosecution allegation and in tune with the deposition of Pws.1 and 2. PW3 has deposed that when Pws.1 and 2 brought the accused in the Nachivayal Forest Station, he had prepared Ext.P1 6 Crl.A.No.471 of 2011 mahazar, Ext.P2 confession statement of the accused and Ext.P3 form-I report. According to PW3, Ext.P1 was physically recorded by the staff as dictated by him. He had also deposed that all what recorded in Ext.P1 mahazar is on the basis of what conveyed by Pws.1 and 2 and he has no direct knowledge regarding the incident and the accused is brought to the forest station. When PW3 was examined, Ext.P4 chemical analysis report was also got marked by the prosecution. PW3 has also identified M.O.1 bulk ganja and M.O. 2 sample packet of ganja. These are the evidences and materials relied on by the Judge of the trial court in support of his finding and convicting the appellant. 6. The learned counsel for the appellant vehemently submitted that, as per the prosecution case, the crime was detected by Pws.1 and 2, who are not empowered officers and therefore that part of the case of the prosecution cannot be accepted. According to the learned counsel, from the evidence of Pws.1 and 2 it is crystal clear that the appellant was taken into custody by Pws.1 and 2 and they 7 Crl.A.No.471 of 2011 conducted search of the body as well as the bag of the appellant. According to the counsel the appellant was not set free by Pws.1 and 2 after the said incident but he was forcibly taken to the Nachivayal Forest Station and therefore the appellant was practically under the custody of Pws.1 and 2. Therefore, the arrest of the appellant though it was informal and the search and seizure etc. were conducted illegally by incompetent staff of the forest department. After having invited my attention to the standing order No.1/89 dated 13.6.1989 of the Ministry of Finance to Government of India (Department of Revenue), the learned counsel submitted that Ext.P1 was prepared against the above standing order and not from the place of occurrence or seizure. It is also the submission of the learned counsel that no report as contemplated by the mandatory provision under Section 57 has been prepared and complied in this case. On the strength of the decision of this Court reported in Mohanan Vs. State of Kerala (2011(4) KLT 59), the counsel submitted that a mere 8 Crl.A.No.471 of 2011 production of Ext.P1 is not sufficient to treat it as a mahazar and the court cannot acted upon the same, especially when PW3, the empowered officer, failed to make deposition regarding the content of Ext.P1. It is also pointed out by the learned counsel that the mandatory provision contained in S.50 of the NDPS Act is not complied with in the present case and therefore the appellant is entitled to get an acquittal on the above sole ground. Thus according to the learned counsel, the prosecution has miserably failed to prove the allegation against the appellant beyond reasonable doubt and there is a serious lapse and defect in the investigation but the learned Judge of the trial court failed to consider those aspects and erroneously found that the prosecution has proved its case against the appellant. Therefore, the learned counsel submits that the appellant is entitled to get a clear acquittal. 7. On the other hand, the learned Public Prosecutor submitted that as Pws.1 and 2 are not competent or 9 Crl.A.No.471 of 2011 empowered officers, they have no other option but to produce the appellant before PW3 and it is thereafter the seizure was formerly effected by drawing Ext.P1 mahazar at the instance of PW3. According to the learned Public Prosecutor, the findings of the court below based upon the oral as well as the documentary evidence are not liable to be interfered. 8. I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor. I have also gone through the materials and evidence including the documentary and the testimony of Pws.1 to 3. 9. In the light of the arguments advanced by the counsel for the appellant and the learned Public Prosecutor and in view of the evidence and materials involved in this case, the question to be considered is whether the trial court is justified in its finding that the appellant has committed the offence punishable under Section 20(b)(ii) (B) of the NDPS Act. The NDPS Act is a Self-contained 10 Crl.A.No.471 of 2011 Code enacted with specific purpose, particularly for the control and regulation or operation, including the forfeiture of property derived under illicit traffic of narcotic drugs and psychotropic substances. To achieve the above object, several procedures are specifically incorporated in the Act and the punishment contemplated are severe in nature. Going by the evidence and materials available on record, I am constrained to observe that the prosecution has ignored the above object and the mandatory provisions of the Act and had conducted a very shabby and un-scrupulous investigation. In this case, the mandatory provisions of the Act flagrantly violated and the evidence on record instead of proving the case, had created reasonable doubt in the mind of the court. As rightly pointed out by the counsel for the appellant, the main part of the investigation of the case is conducted by Pws.1 and 2 who are not empowered or authorised officers, for the search and seizure of the contraband article and the arrest of the accused either under Section 22 or 23 of the Act. From the evidence of 11 Crl.A.No.471 of 2011 Pws.1 and 2, it is clear that according to them, the appellant was wanted since he had involved in several forest offences and he had absconded. According to Pws.1 and 2, they chased the accused/appellant and on interception, they forcibly examined the bag which was in the possession of the appellant and further inspected the contents of the bag and finally traced out the contraband article. According to Pws.1 and 2, they removed the appellant to the forest station. Thus Pws.1 and 2 has no authority to conduct the search and arrest of the appellant. According to me, as and when they suspected the involvement of the appellant in an NDPS case, they have to inform the matter to the empowered officer-PW3 in this case and entrust the matter with him. But in this case that was not done. The legal and admissible evidence in this case can be considered from the stage when PW3 had involved in this case. Thus what all deposed by Pws.1 and 2 prior to the involvement of PW3 cannot be admitted as evidence. Though PW3 stated that, he prepared Ext.P1 as 12 Crl.A.No.471 of 2011 dictated to him by Pws.1 and 2, that evidence of PW3 is not sufficient to inspire the confidence of the court. On a plain reading of Ext.P1 would show that, the same are prepared by the staff of forest department according to their whims and fancies. Ext.P1 further shows that, after the removal of the appellant from the forest area to the forest station, they continued the questioning of the appellant and they have recorded in Ext.P1 such questioning and the answer allegedly given by the appellant. Therefore, under no stretch of imagination it can be held that Ext.P1 was prepared by PW3. 10. It is relevant to note that according to PW3, Pws.1 and 2 brought the accused and the contraband article. PW3 has categorically stated that he had no involvement or knowledge regarding the facts and circumstances under which the appellant was brought to the Forest station. So the question as to whether the contraband article was in the possession of the appellant is not properly answered by the prosecution. Ext.P1 cannot be treated as a mahazar 13 Crl.A.No.471 of 2011 connected with the seizure of the contraband article allegedly found from the possession of the appellant. Though Ext.P1 covers 6 pages in total, the facts recorded therein connected with the alleged seizure of ganja will come only one page and the other pages are concerned with the other forest offences. So to prove the seizure and arrest of the accused, connected with the allegation of the prosecution against the appellant, there is no independent or contemporary document or evidence. Regarding the compliance of the mandate that contained in the provision of Section 50, there is no whisper in the deposition of PW3. In Ext.P1 it is recorded that, when the appellant was asked whether he need the presence of gazetted officer for his body search, he had answered negatively. The Honourable Apex court in the decision reported in State of Delhi Vs. Ram Avtar @ Rama (2011(6) Supreme 134) has held that, the provisions contained in S.50 is imperative in nature and substantial compliance is not sufficient. In the very same decision it was also held that, an illegal 14 Crl.A.No.471 of 2011 seizure and the proof connected with such illegal seizure cannot be treated as admissible evidence. The learned Public Prosecutor submitted that as the contraband article was recovered from the bag, which was possessed by the appellant, S.50 has no application. In the present case there is no positive evidence as to whether the contraband article was recovered from the body of the accused or from the bag possessed by the appellant, since the evidence of Pws.1 and 2 in this respect is not admissible and acted upon as they are not the competent officers. 11. It is also relevant to note that the content of Ext.P1 is to be proved properly. As rightly submitted by the counsel for the appellant in the light of the decision of this Court reported in 2011(4) KLT 59, there is no evidence to show that the content of Ext.P1 can be acted upon, since PW3 has not deposed about the contents of Ext.P1. On a reading of Ext.P1 it can be seen that the same was prepared by the staff of the department according to their own choice and manner. Thus to prove the prosecution 15 Crl.A.No.471 of 2011 allegation, there is no sufficient and satisfactory evidence. The contraband article allegedly involved in this case would come to 1.540 gms. The prosecution has miserably failed to prove the allegation against the appellant in accordance with the mandate of the Act and in compliance of the various mandatory provision of the Act. Therefore, I am not in a position to approve the findings of the court below and subsequently the conviction recorded by the trial court against the appellant is set aside. 12. In the result, this Crl.Appeal is allowed setting aside the judgment dated 14.9.2010 in S.C (NDPS) 10/2009 of the court of Special Judge for NDPS Act Cases, Thodupuzha, acquitting the appellant/accused of all the charges levelled against him and, accordingly, he is set at liberty. 13. As this court has set aside the conviction and sentence imposed against the appellant/accused and he is acquitted of all the charges levelled against him, he is entitled to get released from jail forthwith, if he is not 16 Crl.A.No.471 of 2011 required in any other case. 14. The registry is directed to forward the gist of this judgment to the Superintendent, Central Prison, Thiruvananthapuram, forthwith for further action in the matter. V.K.MOHANAN, Judge ami/