IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 24TH AUGUST 2009 / 2ND BHADRA 1931 Crl.Rev.Pet.No. 1075 of 2009() ------------------------------ CRA.90/2008 of ADDL.SESSIONS COURT (ADHOC), KOTTAYAM CC.204/2006 of JUDL. MAGISTRATE OF FIRST CLASS, ERATTUPETTA .................... REVN. PETITIONER(S): APPELLANT/2ND ACCUSED ------------------------------------------ V.T.MOHAMMED S/O. KUNJU MOHAMMED, VADAKKETHEKKEKKAL HOUSE, TEEKOY, MESTHRIPPADY BHAVAN, POONJAR VADAKKEKARA VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.BABY THOMAS SRI.K.B.ARUNKUMAR SRI.SUJESH MENON V.B. RESPONDENT(S): RESPONDENTS/STATE & COMPLAINANT ---------------------------------------------- STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, ERATTUPETTA POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.C.S.HRITIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.1075 of 2009 --------------------------------------- Dated this 24th day of August 2009 ORDER Learned counsel for revision petitioner submits that revision petitioner, subsequent filing of the revision expired and that inspite of intimation given, none of the legal representatives of the deceased has come forward to continue the revision. However, since this is a revision which is already taken on file and since sentence involves imprisonment and fine, question of abatement does not arise. Revision petition has to be decided on merit. I heard counsel for petitioner and Public Prosecutor. 2. Accused No.2 in C.C.No.204 of 2006 of the court of learned Judicial First Class, Erattupetta is the deceased petitioner. He, along with another, faced trial in that court for offence punishable under section 20(b)(ii)(A) of the Narcotic Drugs and Psycotrophic Substance Act (for short, “the Act”) on the allegation that he was found in possession of ganja described as a small quantity. Learned magistrate found petitioner guilty, convicted and sentenced him to undergo imprisonment and payment of fine. That conviction and sentence was confirmed by the appellate court. Learned counsel states that the mandatory requirements of section 42 (1) and (2) and section 50 of the Act have not been complied with and hence conviction and sentence of petitioner cannot stand. Crl.R.P.No.1075 of 2009 2 3. PWs.5 and 8, official witnesses, gave evidence regarding alleged detection. According to them on PW8 getting information about sale of ganja arrested accused No.1 in crime No.68 of 2005 of Pala Police station. When accused No.1 was questioned, he gave information regarding the involvement of petitioner in the alleged incident. Accordingly, as led by accused No.1 and on the information given by him PW8 arrested petitioner on 02-02-2005 at about 6.45a.m and seized 470 gms of ganja from his possession. Ext.P2 is the mahazar for the seizure. Further case of PWs.5 and 8 is that on questioning petitioner, he gave information that the remaining portion of gunga is kept in a building, and if taken there he will produce the same. Accordingly as led by petitioner, PW8 and party reached that place where petitioner produced the remaining portion of ganja which was taken to custody as per Ext.P1 mahazar. Material objects were produced in court and the sample were sent for chemical examination. Ext.P10 is the report of chemical examination which revealed that the contraband allegedly seized from the possession of petitioner is ganja. Based on the above evidence courts below found in favour of prosecution. 4. So far as seizure as per Ext.P2 is concerned, it is seen from Ext.P2 as well as evidence of PW8 that there is no compliance of section 50 of the Act. It is not put to petitioner that he has right to search in the presence of gazetted officer or magistrate. Thus, there is Crl.R.P.No.1075 of 2009 3 total non compliance of section 50 of the Act so far as alleged seizure from the person of petitioner is concerned. Therefore, evidence collected in violation of section 50 of the Act cannot be taken into account. 5. So far as seizure as per Ext.P1 is concerned, it is seen that the alleged seizure is from a building as allegedly produced by the petitioner. Evidence of PW8 shows that he got information about the storage of ganja in that building from petitioner when the latter was questioned. At that stage he was bound to comply with section 42(1) of the Act in that he ought to have reduced that information to writing. Under section 42(2) of the Act after the seizure was made PW8 was obliged to prepare a detailed report regarding incident and both were to be sent to his immediate official superior. Going through the evidence of PW8 and Ext.P9 it is seen that report under section 42 (2) of the act was given not to his immediate official superior, but, to the Station House Officer which is not in compliance of section 42(2) of the Act. The evidence collected in violation of section 42(2) of the Act also cannot be taken into account. Excluding the seizure as per Exts.P1 and P2 there is no other evidence to show that petitioner was in possession of the contraband at the relevant time. Therefore conviction and sentence of petitioner cannot be sustained and are liable to be set aside. Revision petition therefore succeeds. Conviction and sentence of petitioner are set aside and he is acquitted of the charges Crl.R.P.No.1075 of 2009 4 against him. Sbna/ THOMAS P. JOSEPH, JUDGE