IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 14TH FEBRUARY 2008 / 25TH MAGHA 1929 CRL.A.No. 1132 of 2002 SC.135/2001 of SESSIONS COURT, THRISSUR .................... APPELLANT/ACCUSED: ABOOBACKER, S/O.POKKAKKILATHVEETTIL, AGED 57 YEARS, KANADANASSERY VILLAGE, CHOWANNYR DESOM. BY ADV. SRI.C.A.CHACKO SRI.P.RAKESH RESPONDENT/COMPLAINANT: STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/02/2008 , THE COURT ON 14/02/2008 DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.1132 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of February 2008 JUDGMENT Appellant is the accused in a prosecution under Section 20 (b)(i) of Narcotic Drugs and Psychotropic Substances Act . The learned Sessions Judge, Thrissur before whom the appellant was tried had found him guilty of the offence alleged against him and he was accordingly convicted and sentenced to undergo Rigorous Imprisonment for 18 months and also to pay a fine of Rs.15,000/- and in default of payment of fine to suffer Simple Imprisonment for 6 months. 2. The prosecution case in brief was that the accused was found carrying 1.530 kg. of ganja in a plastic sack at about 4.45 p.m. on February 16, 2001. PW.3 who was working as Sub Inspector of Police in Kunnamkulam Police Station stated that he was on patrol duty along with Pw.4 and others through Vadakkancherry-Pattambi road. When the patrol party reached infront of Victory Offset Press the accused was found walking along that road towards south with the sack in his hand Crl.A.No.1132 OF 2002 :: 2 :: containing the contraband and some beedi leaves, labels etc. When the accused saw the patrol party, he appeared perplexed and frightened and turned his face away. This aroused suspicion. Therefore Pw.3 asked the driver of the jeep to stop. The accused was questioned and he admitted that the sack contained ganja. Pw.4, the Constable who accompanied Pw.3 was deputed to procure a weighing scale. He came back with Sajan, a goldsmith, who carried a scale with him. The ganja which was found in the sack was taken out and weighed in the presence of the constables and two independent witnesses (Pws.1 and 2) . Three bundles of 5 grams each were taken as sample. The remaining contraband and the sample packets were properly packed and sealed, and signatures of the accused and witnesses were obtained on them. The accused was arrested and produced before the Court. Thereafter PW.5 conducted investigation and charge sheet was laid thereafter. 3. On committal, the accused was tried before the Sessions Court, Thrissur. The prosecution examined Pws.1 to 5 and marked Exts.P1 to P9 and Mos.1 to 6. Ext.D1 to D4 were Crl.A.No.1132 OF 2002 :: 3 :: marked on the side of the defence. The learned Sessions Judge found that the prosecution had satisfactorily established the charge against the accused. Accordingly he was convicted and sentenced as mentioned earlier. 4. While impugning the order of conviction and sentence Mr.Shafeek, learned counsel for the appellant, contends that the court below had grossly erred in overlooking the fatal and material discrepancies in the prosecution case. He points out that the time and place of occurrence as spoken to by Pw.3 and 4 were totally at variance. There was no satisfactory explanation from the side of the prosecution about the discrepancies noticed by the court in the samples packets. There was also no explanation for the delay in forwarding the samples to the Forensic Science Laboratory. 5. Pws.1 and 2 who were stated to be independent witnesses did not support the prosecution case. They stated before the Court that they had not seen the alleged apprehension of the appellant with the contraband in his possession. However these two witnesses admitted their Crl.A.No.1132 OF 2002 :: 4 :: signature in Ext.P2 seizure mahazar. 6. Pw.3 the Sub Inspector and Pw.4 the Constable who accompanied him in the patrol party, are material witnesses as far as the prosecution is concerned. Pw.3 stated that he, along with other members of the patrol party, was proceeding through Vadakkancherry road towards Pattambi road. According to this witness Pattambi road runs north-south. The party had come along Kozhikode-Vadakkancherry Road and entered the Pattambi road. When the patrol party reached in front of Victory Offset Press on the Pattambi road, the accused was found in front of the Press with the sack. But Pw.4 stated that the accused was found while the patrol party was travelling along Vadakkanchery road. This witness said that the party had come from Kunnamkulam-Pattambi road and entered Vadakkancherry road. But Victory Press is admittedly situated on the Pattambi road. Going by the version of Pw.4 the patrol party was proceeding from South to North, whereas Pw.3 stated that the party had been coming from North to South. It had come on record that Vadakkancherry road runs along the Crl.A.No.1132 OF 2002 :: 5 :: northern side of Pattambi road. Further, according to Pw.3, the accused was apprehended with the contraband at 4.45 pm, whereas Pw.3 asserted that the detention and recovery was at 4.15 p.m. Pw.4 stated that he had arrested the accused immediately when it was revealed by the accused that he had been carrying the contraband in the sack, whereas PW.3 stated that arrest was made after the entire process of seizure was effected. 7. It has come out in evidence that the investigating officer, Circle Inspector of Police, Kunnamkulam had produced the sample packets and the remaining contraband before the court on the next day after the alleged recovery. It is seen from Ext.P7, property list that the samples were returned to the investigating officer on February 17, 2001 since certain defects were noticed. For instance, it was noticed that 'gross weight, net weight and station number' had not been indicated in separate slips on the packets. Thereafter, the investigating agency had cured the defect and reproduced the samples and the contraband before the court on February 19, 2001. Crl.A.No.1132 OF 2002 :: 6 :: 8. It is contended by the learned counsel that the fact that gross weight and net weight of the contraband and the samples had not been indicated on the containers, will go a long way to show that seizure and sampling as alleged had never taken place. In this context, learned counsel pointed out that one Sajan was allegedly called to the scene of occurrence with a scale for the purpose of weighing the sample and the contraband. Curiously, Sajan was not examined in the court. Even though it was alleged that he had weighed the contraband and the samples. Learned counsel contends that going by the version given by PW3 and 4, they had indicated the weight of the contents of the packets at the scene of occurrence itself. But the fact that such details were absent on the packets when they were produced before the court will cut at the root of the prosecution case. Non examination of Sajan, according to the learned counsel, is also totally fatal to the prosecution case. It is further pointed out by the learned counsel that the sample is seen to have been forwarded to the laboratory only on May 26, 2001. No evidence was adduced by the prosecution to show Crl.A.No.1132 OF 2002 :: 7 :: that the samples were kept in proper custody during the intervening period. No witness was examined in this connection to prove that there was no chance for tampering. 9. In this context, it may also be worthy to mention that the detecting officer had a case that he had searched the business premises of the accused at Erumappetty within the limits of the said Police Station. According to the officer, search was conducted pursuant to the information furnished by the accused that some more quantity of ganja had been kept in his shop. But the officer could not recover any ganja from the shop. Some 'bidi' labels allegedly forged by the accused in the name of another manufacturer had been recovered. The officer stated that the labels and other materials seized from the shop of the appellant had been handed over to the station house officer of Erumappetty. Reference has been made to the above only to highlight the fact that the appellant has a specific case that the present case had been foisted against him for the reason that no recovery could be effected from his shop by PW3. Anyhow, I do not propose to deal with the above contention any further. Crl.A.No.1132 OF 2002 :: 8 :: Having perused the entire materials available on record, I am of the view that the appellant is entitled to get the benefit of doubt in view of the contradictions in the versions given by the two material witnesses namely PW3 and 4. Apparently these witnesses had given different versions with regard to the scene of occurrence and the time of seizure. The evidence on seizure, sampling, etc. is not entirely satisfactory. Therefore, the order of conviction and sentence passed by the court below is set aside. The appellant is acquitted. The bail bond executed by him shall be cancelled. Appeal is allowed. (A.K.BASHEER, JUDGE) jes Crl.A.No.1132 OF 2002 :: 9 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.1132 OF 2002 - - - - - - - - - - - - - - - - - - - - - - JUDGMENT Dated 14th Feb 2008