IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 19TH OCTOBER 2010 / 27TH ASWINA 1932 CRL.A.No. 814 of 2009() ----------------------------------- SC.59/2008 of SESSIONS COURT, KOLLAM ....................................... APPELLANT(S): APPELLANT. --------------------------------------------- MURUKAN C.NO.2962, CENTRAL PRISON, TRIVANDRUM. BY ADV. SMT.R.PADMAKUMARI (STATE BRIEF) RESPONDENT(S): ------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR MR. M.R. VENUGOPAL THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/10/2010, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING: sou. K. HEMA, J ---------------------- Crl.Appeal.No. 814 OF 2009 ----------------------------------- Dated this the 19th day of October, 2010 J U D G M E N T This appeal arises from the conviction and sentence passed against appellant u/s.20(b)(ii)(B) of Narcotic Drugs and Psychotropic Substances Act ('NDPS Act' for short) to undergo Rigorous Imprisonment for six years and to pay fine of Rs.15,000/- and in default, to undergo simple imprisonment for one year. 2. According to prosecution, PW1 was working as an Excise Range Inspector on 30.8.2007 and as instructed by Assistant Excise Commissioner to do patrol duty along with Chathannur Excise Range Officers, he was doing patrol duty. While so, at about 3.30 pm, he saw accused carrying a plastic bag and that on suspicion, he was apprehended and body search was conducted and 1065 grams of ganja were seized from the bag. Two samples were taken from the ganja and accused was arrested. On being satisfied that he committed the offence, a mahazar was prepared as Ext.P1 and articles were seized. After investigation, a report Crl.A. No.814/09 2 was laid by PW5 Excise Inspector of Chathannur Range. 3. To prove prosecution case, prosecution examined PWs 1 to 5, marked Exts. P1 to P13 and MO1 to 3. On the side of the accused, DW1 was examined and Ext.D1 was marked on his side. According to accused, he is totally innocent of the allegations made. He was a hawker doing business in vessels. He had sold vessels on credit to one Prasannan. When he asked him to return the money, there was a quarrel between Prasannan and accused. Prasannan threatened accused with consequences and he influenced officials and falsely implicated him in this case. He has nothing to do with the contraband article. He was selling vessels for the past 13 years. He belongs to Thenkasi. 4. The trial court, on an analysis of the record, found that prosecution succeeded to prove that Excise Officials had seized ganja from the possession of accused. The defence set up was found to be unacceptable. The evidence of PW1, 2 and 5 who are official witnesses was relied upon by trial court to convict accused. 5. On hearing both sides, and on going through the records in this case, I find that there is some infirmity in the evidence relating to who detected the crime and what procedure was Crl.A. No.814/09 3 followed after the arrest etc. PW1 is stated to be an Excise Inspector, as per the Mahazar. But, in his evidence, he had categorically stated that on the date of occurrence, on 30.8.2007 he was working as Sub Inspector in Karunagappally Police Station and he was doing control room duty in Excise Range Office. 6. It is not clarified from his evidence, under what authority Sub Inspector of Police, Karunagappally Police Station was doing control room duty in the Excise Range Office. PW1 stated in his evidence that he took the duty, as per order of the Excise Commissioner dated 20.7.2007 in writing, and that he was doing his duty in Kollam range. The authority of PW1 was questioned in cross examination and it appears from the evidence that he was on duty on the particular day in the control room, only by virtue of a special order or authorisation in writing from the Assistant Excise Commissioner. But the said order is not produced in court. 7. In chief examination, PW1's case was that the order was issued by “Excise Commissioner”. But as per the Mahazar, the order was passed by “Assistant Excise Commissioner”. Thus evidence is shabby as to, on what authority PW1 who is stated to be the Sub Inspector of Police in Karunagappally Police Station was doing duty beyond the limits of police station. The incident is Crl.A. No.814/09 4 stated to have happened in Meenadu Village near Ooranvila Junction. But there is no evidence to show that PW1 had territorial jurisdiction to arrest the person involved in offence under NDPS Act at the place of occurrence. 8. Thus, lack of authority to conduct search and arrest in a place beyond the limits of police station assumes importance in this case. The accused has a case that he was implicated in this case, at the instance of one Prasannan, who influenced one of the officials. Other officials who are examined are PW2 and PW5. PW2 also not stated in what capacity he was working, but he only stated that he was working in Excise Range Office. PW5 also stated that he was working in Chathannur Range Office, but his designation was not stated in evidence. 9. It is also relevant to note that going by the evidence of PW1 himself it is doubtful whether PW1 detected the offence on 30.8.2007 at about 3.30 pm. As per his evidence he was doing control room duty on the date of occurrence, by virtue of an order in writing by Excise Commissioner. But it was not produced. In his evidence, PW1 stated that his duty in control room starts from 10 pm and ends at 10 am and his control room duty was during night time and not during day time. Learned public Crl.A. No.814/09 5 prosecutor pointed out that this may be a mistake. When he was cross examined, PW1 stated that he could reach Chathannur Excise Office by 10 am, if he started at 9 am from Karunagappally and that he had gone to Chathannur from Kollam, as directed by Assistant Excise Commissioner. This fact was brought out in cross examination, as a clarification was sought for. In re-examination, PW1 stated that control room duty is between 10 pm and 10 am. Therefore, it cannot said to be an inadvertent omission. 10. From the evidence of PW1, 2 and 5 it is not clear whether PW1 was arresting accused and seizing articles or others were effecting arrest and search. The evidence is shabby regarding the duties discharged by each of the officials - PW1, 2 and 5. It is also relevant to note that in Ext.P3 in column no.7, name of police officer assisting in the search has to be mentioned with his designation and date. But in the said column, it is written as 'Nil'. If PW2 and PW5 were actually assisting PW1 in arrest, seizure and search, it is not understood why this entry is made in Ext.P3. 11. In the nature of the evidence adduced in this case, I find that prosecution has not proved beyond reasonable doubt that Crl.A. No.814/09 6 arrest and seizure of contraband articles were effected in this case in accordance with law. It is doubtful whether the offence was detected by PW1 on the date and time, alleged in this case. Hence conviction and sentence therefore liable to be set aside and I do so. In the result, the following order is passed: (i) The conviction and sentence passed against appellant are set aside. (ii) The appellant is found not guilty and he is guilty of offence u/s.20(b)(ii)B of NDPS Act. (iii) The appellant is set at liberty forthwith. (iv) The appellant shall be released from prison forthwith, unless he is required in any other case. (v) Registry shall issue release order forthwith. This appeal is allowed. K. HEMA, JUDGE. Sou.