IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 1ST OCTOBER 2009 / 9TH ASWINA 1931 CRL.A.No. 273 of 2003() ----------------------- SC.187/2002 of SPL.COURT (NDPS ACT CASES), VADAKARA .................... APPELLANT/ACCUSED:- --------------------------- K.A.CHANDRAN, S/O. AYYAPPAN, KUSHIVAYALIL HOUSE, CHETTAPPALAM, PULPALLY, WAYANAD DISTRICT. BY ADV. MR. SUNNY MATHEW RESPONDENT/COMPLAINANT:- ---------------------------------- THE CIRCLE INSPECTOR OF POLICE, NADAKKAVU, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KEALA, ERNAKULAM. ADV. MR. C.M. NAZER, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01.10.2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR , J. -------------------------------------------------- Crl. Appeal No. 273 of 2003 ---------------------------------------------------- Dated this the 1st day of October, 2009. JUDGMENT The appellant who was the sole accused in Sessions Case No. 187 of 2002 on the file of the Court of the Special Judge (NDPS Act Cases), Vadakara, challenges the conviction entered and the sentence passed against him by that court for an offence punishable under Section 20 (b)(ii)(B) of the N.D.P.S Act, 1985. 2. The case of the prosecution as unravelled by the oral and documentary evidence is as follows:- On 28.04.2002, at about 4 p.m., PW1 who was the Sub Inspector of Police, Nadakkavu Police Station, Kozhikode received a credible information to the effect that a person by name Chandran hailing from Pulppally and who was previously involved in a narcotic case was engaged in the sale of ganja from the vicinity of the telephone post located near the Industrial Estate Canteen in Beach road, West Hill, Kozhikode. After recording the said information in the general diary of the Police Station and after giving Ext.P1 report to his official superior, namely, the Circle Inspector of Police, Nadakkavu, in compliance Crl. Appeal No. 273/2003 : 2 : of Section 42(2) of the N.D.P.S Act, the Sub Inspector along with his police party which, inter alia, included PW2, a police Constable proceeded to the spot. When the police party reached the spot at about 4.25 p.m., they found the accused standing there holding a plastic bag in his hand. Seeing the police party when the accused tried to hurriedly make good his escape from there, he was intercepted and restrained. After questioning the accused, PW1 got suspicious that the accused was carrying ganja in the plastic bag in his hand. The accused was then informed of his right to be searched in the presence of a Magistrate or a Gazetted Officer and PW1 elicited the option of the accused in that behalf. The accused gave Ext.P2 written consent to PW1 to the effect that he had no objection in PW1 himself searching the accused. Thereupon, PW1 took the plastic bag carried by the accused in his hand and searched its contents in the presence of two independent witnesses PWs 4 and 5. The examination of the contents of the plastic cover carried by the accused revealed that it was dried ganja. On weighing the ganja alone, it was found to weigh 1 kg. and 50 grams. PW1 then prepared two samples each of 25 grams from the bulk quantity. Crl. Appeal No. 273/2003 : 3 : The samples as well as the remaining quantity of ganja were all packed and sealed. The accused was arrested and the contraband ganja together with the samples were seized under Ext.P3 Mahazar prepared form the spot itself. The accused, the properties and the seizure documents were then taken to the Nadakkavu Police Station from where Ext.P4 FIR was registered for an offence punishable under Section 20(b)(ii)(B) of the N.D.P.S. Act. Ext.P6 property list reveals that the aforesaid properties were produced before the Special Court on 29.04.2002 and were received as item No. PR 67/2002. During the course of investigation, PW6, the Circle Inspector of Police, Nadakkavu filed the original of Ext.P11 forwarding note requesting the Special Judge to forward the samples to the Chemical Examiner, Kozhikode. The said request was complied with and as per letter dated 22.05.2002, the Special Judge forwarded the samples to the Chemical Examiner for analysis. Ext.P7 is the certificate of chemical analysis which shows that the samples were received in the Government Chemical Examiner's Laboratory, Kozhikode on 22.05.2002 with the seals intact and on examination of the contents of the sample packets, Crl. Appeal No. 273/2003 : 4 : it was revealed that they were dried leafy material with flowering and fruiting tops of ganja having the odour of ganja and that chemical analysis revealed that the samples contained ganja, that is, Cannabis Sativa. 3. This in short is the case of the prosecution. 4. On the side of the prosecution, 6 witnesses were examined as PWs 1 to 6 and 11 documents were got marked as Exts. P1 to P11 and 4 material objects as Mos. 1 to 4. 5. After the close of the prosecution evidence, the accused was questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. 6. Since this was not a case of no evidence for the prosecution, the accused was acquitted under Section 232 Cr.P.C. He was, therefore, called upon to enter on his defence and to adduce any evidence which he might have in support of his defence. He did not adduce any defence evidence. 7. The learned Special Judge as per judgment dated 07.02.2003 found the appellant guilty of the offence and Crl. Appeal No. 273/2003 : 5 : sentenced him to rigorous imprisonment for one year and to pay a fine of Rs.15,000/- and on default to pay the fine, to suffer simple imprisonment for one year. It is the said judgment which is assailed in this appeal. 8. I heard the learned counsel appearing for the appellant as well as the learned Public Prosecutor. 9. The only point which arises for consideration in this appeal is as to whether the conviction entered and the sentence passed against the appellant are sustainable or not. 10. The point: The learned counsel appearing for the appellant made the following submissions before me in support of the appeal:- Even though the contraband ganja was seized from a plastic bag allegedly held by the appellant in his hand, this was a case of body search requiring compliance with Section 50 of the N.D.P.S. Act. The bag held by the accused in his hand is nothing but a logical extension of the body and therefore if the bag was to be searched, necessarily it involved a body search of the accused and therefore compliance with Section 50 of the N.D.P.S Act was mandatory. The very fact that PW1 informed the Crl. Appeal No. 273/2003 : 6 : accused about his right to be searched in the presence of a Gazetted Officer or a Magistrate indicates that PW1 himself was of the view that the search of the bag held by the accused involved body search. That apart, there was non-compliance of Sections 42(2) and 57 of the N.D.P.S Act. 11. I am afraid that I cannot agree with the above submissions. It is true that PW1 had informed the accused about his right to be searched in the presence of a Gazetted Officer or a Magistrate. But, that was only by way of abundant caution. No doubt, there was a time when search of a bag held by the accused in his hand was considered to involve a body search on the ground that a bag held by the accused in his hand was a logical extension of the body. But after the decisions of the Apex Court in State of H.P v. Pawan - 2004 (3) KLT 660 (SC), State of Rajasthan v. Daulat Ram - AIR 2005 3816, the consistent view taken is that search of a bag held by the accused does not involve body search. [See also State of Haryana v. Ranbir alias Rana - 2006(2) KLT 370 (SC) and Ravindran v. Superintendent of Customs - 2007 (3) Crl. L.J 3414 (SC).] Therefore, compliance with Section 50 of the N.D.P.S Act was Crl. Appeal No. 273/2003 : 7 : unnecessary for the search of the bag held by the accused. 12. The credible testimony of PW1 coupled with Ext.P1 report will show that he had complied with Section 42(2) of the N.D.P.S. Act. Even otherwise, compliance with Section 42 of the N.D.P.S. Act was unnecessary since this was not a case of search from any building, conveyance or enclosed place. This was a case of detection, arrest, search and seizure from a public place falling under Section 43 of the N.D.P.S. Act. In such a case, compliance with Section 42 of the Act is not necessary. (See Abdul Azeez v. State of Kerala – 2001 (1) KLT 805, Ravindran v. Superintendent of Customs – 2007 (6) SCC 410, Fayar Puri v. State of Rajasthan - AIR 1998 SC 3224 and Union of India v. Major Singh & others - 2006(9) SCC 170 corresponding to State of Haryana v. Jarnail Singh - 2004 (2) KLT 1024 (SC). 13. There is also evidence of compliance of Section 57 of the N.D.P.S. Act since PW1 has deposed that soon after the search and seizure, he had informed the matter to the Circle Inspector of Police who is his official superior. Even otherwise, Section 57 is not a mandatory provision, the non-compliance of Crl. Appeal No. 273/2003 : 8 : which can be said to be fatal to the prosecution. [See State of Punjab v. Balbir Singh – (1994) 3 SCC 299.] 14. The result of the foregoing discussion is that the appellant was found carrying in a public place 1 kg and 50 grams of ganja answering the definition of cannabis in Section 2(iii)(b) of the N.D.P.S Act in a plastic bag held by him. The said possession was in contravention of Section 8(c) of the N.D.P.S Act and therefore punishable under Section 20(b)(ii)(B) of the N.D.P.S Act. He was, therefore, rightly convicted of the said offence by the court below. I, therefore, confirm the conviction recorded against the appellant. 15. The sentence imposed on the appellant also cannot be said to be harsh or disproportionately excessive. Narcotic drugs are slow killers. They have already ruined so many families. It has been scientifically proved that these toxins have a deleterious effect on the human system. Nobody has a right to habituate gullible victims to the vice of drug abuse and condemn them to a world of no return. May be, it is the filthy lucre which tempts people to take up the dope trade. But, the devastating damage they inflict on the society is incalculable. Considering Crl. Appeal No. 273/2003 : 9 : these aspects of the matter, I do not think that the sentence imposed by the court below calls for any interference. In the result, this appeal is dismissed confirming the conviction entered and the sentence passed against the appellant. Dated this the 1st day of October, 2009. V. RAMKUMAR, JUDGE. rv Crl. Appeal No. 273/2003 : 10 : V. RAMKUMAR, J. ------------------------------------ Crl. Appeal No. 273 of 2003 ---------------------------------------- 1st day of October, 2009. JUDGMENT Crl. Appeal No. 273/2003 : 11 :