IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 15TH FEBRUARY 2010 / 26TH MAGHA 1931 CRL.A.No. 2729 of 2009() ------------------------ SC.264/2006 of ADDL.SESSIONS COURT,-I, MAVELIKKARA ............................................ APPELLANT(S): ACCUSED -------------------------------------- MOHANDAS, KUTTAN ACHARI, AGED 46 YEARS, SHAJI BHAVANAM, WARD NO.10, KRISHNAPURAM PANCHAYATH, KAPPIL MEKKU MURI, KRISHNAPURAM VILLAGE, AND HAVING PERMANENT ADDRESS AT PALAKKA PARAMBIL, PUNNAPRA MURIYIL, PARAVUR VILLAGE, ALAPPUTZHA DISTRICT. BY ADV. SRI.K.B.ARUNKUMAR RESPONDENT(S): COMPLAINANT ------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, KAYAMKULAM POLICE STATION REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.C.S.HRITHIK, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl.A.No.2729 of 2009 ------------------------------- Dated this the 15th day of February, 2010. J U D G M E N T The sole accused in S.C.264/2006 is the appellant who challenged his conviction and sentence u/s.20(b)(ii)(B) of the NDPS Act, in this appeal. 2. The prosecution case is that on 17.10.2005 at 9 A.M. the accused/appellant was found keeping and possessing 7.350 kgs of Ganja for the purpose of sale in the kitchen room of the house bearing no.K.P.10/03 in Ward No.X of Krishnapuram panchayath known as `Shaji Bhavan`, wherein the accused/appellant was residing and thereby committed the offence punishable under the above sections. 3. On the basis of the said allegation, Crime NO.664/2005 was registered in the Kayamkulam Police Station and after investigation a final report was filed. The case was taken on file as S.C.No.264/2006 before Sessions Court, Alleppey, which subsequently made over to the court of Additional Sessions Court-1, Mavelikkara. When the accused/appellant appeared, a formal charge was framed against him u/s.20(b)(ii)(B) of the NDPS Act, after hearing the 2 prosecutor and the defence. When the charge is read over and explained to the accused/appellant, he denied the same and pleaded not guilty. Thus, thereafter the prosecution adduced evidence consists of oral depositions of Pws.1 to 8 and the documentary evidence such as Exts.P1 to P7. Material objects marked as M.O.s 1, 2 and 2(a). When the accused was questioned u/s.313 of Cr.P.C., he denied the prosecution case and also the circumstances which brought on record against him during the prosecution evidence. From the side of the defence, except Ext.D1 the contradictory portion of the statement of PW3, no other evidence was adduced. Based upon the evidence, the materials and the pleading, the Trial Court framed two issues for its consideration and finally found that the accused/appellant is guilty of the offences charged against him. Accordingly, the accused/appellant is convicted u/s.20(b)(ii)(B) of the NDPS Act and he is sentenced to undergo rigorous imprisonment for 6 years and to pay a fine of Rs.5,000/-. It is also ordered that the accused/appellant shall undergo rigorous imprisonment for 6 months, in case default of paying the fine amount. Set off was allowed. It is the above conviction and sentence challenged in this appeal. 4. I have heard the learned counsel appearing for the appellant and also the Public Prosecutor. 3 5. According to the prosecution, PW7, the Sub Inspector of Police, attached to the Kayamkulam Police Station, received an information at about 8 A.M.on 17.10.2005 that one Mohandas residing in `Shaji Bhavan` on rent, is keeping Ganja for the purpose of sale in his house. The Sub Inspector of Police, Kayamkulam Police Station is examined as PW7. According to PW7 he immediately, on receipt of the information, informed the matter to his immediate superior officer, the C.I. of police, Kayamkulam and thereafter prepared Ext.P3 search memo which forwarded to the Court and thereafter along with Pws.2 and 3 went to the spot and effected the seizure in the presence of the appellant/accused who was found in the house. According to PW7, he searched the house and thus saw a sack bundle in the corner of the kitchen room on the northern portion of the house and thereafter he opened the sack bundle in the presence of witnesses and other police men. According to PW7, on such search and examination he could see dried flowering and fruiting tops, leaves and seeds of Ganja. Thus according to PW7, thereafter he arrested the accused at 9.30 A.M. PW7 further says that he managed to got produced a balance and accordingly the contraband article was weighed which he found as 7.350 kgs of Ganja, after excluding 150 gms of weight of sack. 4 According to PW7, he took two samples of 50 gms each from the ganja and the same were properly packed, sealed and affixed labels containing the signature of himself, independent witnesses and the accused on the sample packets and also in the sack containing balance ganja. According to PW7, Ext.P1 is the search list. Thus PW7, thereafter returned to the police station and prepared Ext.P5 F.I.R. According to PW7 he produced the contraband article before the court with a forwarding letter for sending the samples for chemical examination. PW5 is the successor of PW7, who laid the charge against the accused. 6. In support of the prosecution case besides the evidence of PW7, the prosecution had examined Pws.1, 2, 3, 4, 5 and 6. PW1 is an independent witness who was cited to prove the seizure and arrest. But PW1 turned hostile. Ext.P1 was not marked through PW1. PW2 is the Head Constable who was examined to prove the arrest of the accused. PW3 is also cited to prove Ext.P1 seizure, mahazar and arrest. Pws.2 and 3 are police officials. Another independent witness examined by the prosecution is PW4 who is the owner of the house from where the contraband article was seized and the accused was arrested. PW5, the Scientist, who was examined to prove Ext.P2 at first. PW6 is another Police Constable 5 examined to show that a Section 42 report was forwarded. Ext.P3 search memo sent to the court through PW6, another Police Constable. It is on the basis of the above prosecution evidence, the prosecution sought a conviction and sentence against the accused. 7. The learned counsel appearing for the appellant submitted that the prosecution case is absolutely false and the appellant/accused was falsely implicated in the above case. The learned counsel pointed out that Section 42 containing the NDPS Act is a mandatory procedure to be followed by the officer who receive the intimation regarding the commission of the offence or any lead connected, to his superior officer. But in the present case no such report is produced. Though PW6 was examined nothing brought through him to show the compliance of Section 42 of the NDPS Act. It is also the case of the counsel that though the prosecution has claimed that PW7 got information regarding the illegal possession of the contraband article at 8 A.M.on 17.10.2005, absolutely there is no documentary evidence and the available evidence are against the above claim of the prosecution. In support of the above submission, the learned counsel pointed out that in Ext.P5 F.I.R., the information was received at 13 hrs. on 17.10.2005. It is also pointed out by the learned counsel that the falsity of the prosecution case would further 6 reveals from their own document especially Ext.P4 series arrest memo, inspection memo etc. The learned counsel pointed out that according to PW7, on getting the information they went to the spot and the accused was arrested pursuant to the recovery of the contraband article and those arrest memo and also the seizure mahazar contain the crime number. Therefore, according to the learned counsel the claim of the prosecution is belied by their own documents. If the FIR is registered in the police station after returning and recording the arrest and seizure of the contraband article, such document would not have bear the crime number. According to the learned counsel, those documents were falsely created after the recording of FIR in the police station at about 1 P.M. On 17.10.2005. It is pointed out that in Ext.P1 mahazar, no crime number is given even though Ext.P1 was prepared just prior to the arrest memo and inspection memo. The learned counsel pointed out that regarding the quantity that alleged to have collected for sampling, the prosecution version is contradictory in nature. When Pws.2 and 7 says that 50 gms was taken as per Exts.P1, P5 and P6, PW3 says that only 5 gm each was taken. In Ext.P2 certificate issued by PW5, the first packet contained only 28.9 gms and the second packet contained only 34.13 gms. The learned counsel pointed out that if actually 50 gms were 7 taken in each packet, the balance shown therein are not tallying even if concession is given @ 2 gms as deposed by PW5. It is also the case of the learned counsel that there is no evidence to show that the accused was residing in the house at the time of the seizure. The learned counsel would also submit that the prosecution case against the accused is not believable for the reason, that the prosecution miserably failed to produce the alleged rent deed. Because of the difference in the seal that contained in Ext.P1 and also for the reason that the details shown in column No.6 of Ext.P1, the alleged time of dispatch can not be believed. Thus the learned counsel submitted that in the absence of full proof evidence, the conviction and sentence imposed against the appellant/accused is highly arbitrary and illegal and liable to be set aside. 8. On the other hand, the learned Public Prosecutor submitted that the evidence of prosecution, are sufficient to establish the charge leveled against the appellant/accused. On the strength of the decision reported in 2006 (1) KLT page 380, the learned Prosecutor submitted that the FIR and other documents were reached in the court in time and that is sufficient to treat it as compliance of the mandatory provisions contained in Section 42 of the NDPS Act. It is also pointed out by the Public Prosecutor that the search, seizure 8 and arrest of the accused was done in pursuance to the information received in the police station and those police action is proved by the contemporaneous document that is mainly Exts.P1 and P4 series of arrest memo, inspection memo etc. and also Ext.P5 FIR, P6 property list, P7 forwarding note etc. 9. I have carefully considered the contentions advanced by the learned counsel as well as the learned Public Prosecutor and also perused the evidence and materials on record. According to the prosecution PW7 received an information at about 8 A.M. on 17.10.2005 about the illegal possession of Ganja for the purpose of sales. The entire police action was started pursuant to such information. It is stated by PW7, the person claimed to have received the information and who conducted the search and seizure, that the information was recorded in the general diary kept in the police station. But during the time of trial, neither the general diary nor the extract of such diary containing that portion of the recorded information produced. In the absence of any documentary evidence to substantiate the claim of the prosecution, that PW7 had received the information, the court has to consider the other available materials and evidence on record to see whether such claim is correct or genuine. 9 10. In these juncture, it is relevant to note that as per Sub Section 2 of Section 42 of the NDPS Act, an officer takes down any information in writing under sub Section (1) or records any grounds for his belief under the proviso thereto, he shall within 72 hrs. sent a copy there of, to his immediate official superior. In the present case, PW7 has no case that he had prepared any such report in terms of Section 42 (2) of the NDPS Act. There are several authorities to the effect that non-compliance of Section 42 will go against the prosecution. The learned Public Prosecutor on the strength of the decision reported in 2000(1) KLT page 380 submitted that the absence of any report as contemplated u/s.42(2) can not be treated as failure on the part of prosecution and on that base, the accused is not entitled to get any benefit since the contemporary documents like Exts.P1, P3, P4 series and P5 etc. were reached in the court in time and hence the same can be treated as compliance of Section 42(2). I am unable to accept the above submission in the particular background and the facts and circumstances involved in the present case. PW7 says that he received information at about 8 A.M.on 17.10.2005 but there is no documentary evidence to substantiate that claim. The best evidence is the general diary which kept in the police station, but the same has not made available by the prosecution for 10 the scrutiny of the court. Beside the above, the assignment of crime number in the arrest memo and inspection memo is sufficient to create doubt in the mind of the court. Even according to PW7, the FIR was registered after return to the police station. The explanation offered by PW7 regarding the giving of crime number in those document, is quite indigestible. According to PW7 the crime number was given in those document after contacting the police station over telephone. Ext.P1 is a contemporaneous document, if any telephonic conversation was made for the purpose of getting the crime number, the same should have been find a place in Ext.P1 mahazar. In the present case, not only there is a mention regarding those telephonic conversation in Ext.P1, such mahazar does not bear the crime number. Further as pointed out by the learned counsel in column No.6 of Ext.P1, the despatch time of Ext.P1 is shown as 12 A.M. on 17.10.2005. But the F.I.R. was registered at 1 P.M. on 17.10.2005. The above discrepancies are sufficient to hold that reaching of documents namely, Exts.P1, P4, P5 etc. in the court can not be treated as compliance in terms of Section 42 (2) of the NDPS Act. Therefore, according to me in the present case, the prosecution has miserably failed to comply with the statutory mandatory contained in Section 42(2) of the NDPS Act. 11 11. It is equally important to note that the prosecution has miserably failed to establish the connection between the accused and the alleged seizure. In this respect it is relevant to note that the two independent witnesses cited and examined by the prosecution namely Pws.1 and 4 turned hostile. The remaining witnesses are the official witnesses. The documentary evidence which referred above, contained the discrepancies regarding the time of the arrest and seizure and also the registration of the F.I.R. and also with respect to the so called information. As rightly pointed out by the counsel for the appellant the so called rent deed not produced by the prosecution. No other document is produced by the prosecution to show that as on the date of the seizure and arrest, the accused was in possession and residing in the house from where the contraband article alleged to have recovered. In the absence of any such evidence and especially in the light of the discrepancies that occurred in the prosecution evidence mainly the documentary evidence such as Ext.P4 series, arrest memo and inspection memo and Ext.P5 FIR, it can not be said that the prosecution has succeeded in establishing the role of accused in the alleged commission of the offence. The difference regarding the quantity that collected for sampling especially between the prosecution witnesses Pws.2, 3 and 7 is 12 sufficient to generate doubt regarding the preparation of Ext.P1 mahazar especially when PW1 denied the signature in Ext.P1. 12. In the light of the above discussions and the materials and evidence referred above, I am of the view that the prosecution has miserably failed to establish the charge against the accused/appellant beyond reasonable doubt and therefore the accused/appellant is entitled to get the benefit of doubt and consequent acuittal. In the result, this criminal appeal is allowed acquitting the accused of all the charges levelled against him. In the light of the above order of acquittal, the Superintendent of Central Prison, Poojappura is directed to release the appellant/accused forthwith, if he is not required in any other case. The Criminal Appeal is allowed accordingly. V.K.MOHANAN, Judge. ami/