IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 24TH AUGUST 2011 / 2ND BHADRA 1933 CRL.A.No. 2074 of 2010 -------------------------------- (AGAINST THE JUDGMENT IN SC.38/2008 of SPL.COURT (NDPS ACT CASES), VADAKARA) .................... APPELLANT(S): ACCUSED --------------------- ANDICHAMI @ ANDIAPPAN, S/O.OCHATHEVAR, KULUKKIL HOUSE, SHOLAYUR, ATTAPPADI. BY ADV. SRI.T.G.RAJENDRAN. RESPONDENTS(S): COMPLAINANT & STATE --------------------------- 1. THE SUB INSPECTOR OF POLICE, PERINTHALMANNA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.P.A.SALIM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/08/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J ------------------------------- Crl.A.No.2074 of 2010 `C.R.' ------------------------------------ Dated this the 24th day of August, 2011 J U D G M E N T The appellant herein, who is the sole accused in S.C. 38/2008, challenges his conviction and sentence, as per the judgment dated 4.10.2010 in S.C.No.38/2008 of the Court of Special Judge (NDPS Act Cases), Vadakara under Section 20 (b) (ii) (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (herein after referred to as 'the NDPS Act' only). 2. The prosecution case is that on 15.6.2008 at about 4.55 p.m., the accused was found in possession of 2.100 kgs of ganja in front of KSRTC bus stop at Perinthalmanna and subsequently, it came to the notice of the Detecting Officer that, he had also possessed another 30 kgs of ganja and thus seized altogether 32 kgs of ganja from his possession and thus he had committed the offence punishable u/s. 20(b)(ii)(C) of the NDPS Act. 3. On the basis of the said allegation, Crime No.474/08 was registered in the Perinthalmanna Police Station. After completing the investigation, the report was filed in the Special Court on 11.12.2008. After hearing the prosecution as well as the defence, a formal charge was framed against the accused for the above offence and the same was read Crl.A.No.2074 of 2010 :-2-: over and explained to the accused, who denied the charge and pleaded not guilty, which resulted in the further trial, during which the prosecution adduced its evidence consisting of the oral testimony of Pws. 1 to 13 and the documentary evidence such as Exts. P1 to P18 and material objects namely Mos 1 to 10, were also produced and the same were identified during the trial. No evidence, either oral or documentary, was produced from the side of the accused. On the basis of the rival pleadings and the materials and evidence on record, the trial court formulated four points for its consideration. The evidence and the incriminating circumstances, which emerged during the evidence of prosecution, were put to the accused u/s. 313 of Cr.P.C. and he denied the same and maintained the stand of total denial. Based upon the available materials and evidence on record, the trial court has found that the accused is guilty of the charges levelled against him and accordingly, he is convicted u/s. 20(b)(ii)(C) of the NDPS Act and consequently he is sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lakh and in default he is directed to undergo rigorous imprisonment for a further period of 6 months. Thus, on the basis of the above judgment, the accused is undergoing the sentence imposed against him and he is in custody right from the date of his arrest ie., on Crl.A.No.2074 of 2010 :-3-: 15.6.2008. It is the above conviction and sentence challenged in this appeal. 4. In this juncture, it is pertinent to note that initially, the appellant herein had approached this Court by filing Crl.A.2088/2009 challenging the conviction and sentence under Section 20 (b)(ii) (C) of the NDPS Act and this Court allowed the above appeal in part. Thus by judgment dated 23.3.2010 in Crl.A.No.2088/2009, this Court confirmed the conviction of the appellant under Section 20 (b)(ii)(C) of NDPS Act and also confirmed the finding of the court below, under point No.1 by its earlier judgment dated 29.9.2009 in S.C. No.38/2008 and thus, while confirming the finding of the learned Judge regarding the first seizure, the finding under second point as per its earlier judgment with respect to the second seizure has been set aside and this Court remanded the matter back to the trial court for disposal and awarding adequate punishment on the basis of the outcome on fresh consideration after the remand of the matter, since the quantum of punishment depends upon the correctness of the second seizure effected by the police. 5. Thus after the remand of the matter as per the judgment of this Court dated 23.3.2010 in Crl.A.2088/2009, the learned Judge of the trial Crl.A.No.2074 of 2010 :-4-: Court heard the case again in detail on point No.2 with regard to the seizure of 30 kg of ganja. As per the present impugned judgment, the learned Judge has found that the prosecution evidence on record clearly shows that the accused was found in possession of 30 kgs of ganja at his residence and it is further found that the total quantity of ganja found in the physical possession of the accused and possessed at house No.3/307 is 32 kg, which is far above the commercial quantity and thus according to the learned Judge, the accused is liable for a sentence of rigorous imprisonment for 10 years and fine of `. 1,00,000/-(rupees one lakh only). Thus, according to the learned Sessions Judge, since that Court has already inflicted minimum sentence for the offence under Section 20 (b)(ii)(C), the sentence already imposed warrants no alteration. Accordingly, confirming the earlier sentence imposed against the appellant, the trial court sentenced the appellant to undergo rigorous imprisonment for 10 years and pay a fine of `.1,00,000/- (rupees one lakh only) and in default, he is directed to undergo rigorous imprisonment for a further period of six months. It is the above supplemental judgment of the trial court is now challenged in this appeal. 6. I have heard Sri. T.G. Rajendran learned counsel for the appellant as well as Sri. P.A. Salim, learned Public Prosecutor for the State. Crl.A.No.2074 of 2010 :-5-: 7. As this Court has already confirmed the finding of the trial court, with respect to the first seizure in which 2 kgs of ganja is involved, as per the judgment dated 23.3.2010 of this Court in Crl.A.2088/2009, the learned counsel for the appellant confined his argument with respect to the second seizure which is the subject matter of the supplemental judgment, which is under challenge. The learned counsel for the appellant vehemently submitted that even according to the prosecution, the second seizure was effected on the basis of the information furnished by the accused after his arrest and during his interrogation and therefore, PW12 is duty bound to ensure the compliance of the conditions stipulated in Sections 41 and 42 of the NDPS Act. The second contention of the learned counsel is that the Circle Inspector of police, who received the information from the accused has not reduced the information into writing and no permission was obtained from the Magistrate concerned and therefore, there is gross violation of proviso to Section 42 of NDPS Act. 8. Another important contention raised by the learned counsel is that the prosecution has not established and proved that the contraband article allegedly seized was found in his exclusive possession. In support of the above submission, learned counsel has pointed out that the evidence and Crl.A.No.2074 of 2010 :-6-: materials produced by the prosecution itself would show that the house, from which the contraband article was seized is not of his own house, but the house of his wife and therefore it cannot be said that the prosecution has recovered contraband article from the possession of the accused. According to the learned counsel, since there were more than one inmate in the house, the prosecution is bound to prove that the contraband article, allegedly seized from the house, is from the exclusive possession of the accused. Learned counsel further submitted that in Ext.P5 seizure mahazar, no house number is shown. It is also the contention of the learned counsel that as per Ext.P1 scene plan, under item No.19 shown therein, house number is furnished and the same is belonged to the accused. Thus according to the learned counsel the prosecution has miserably failed to prove that the contraband article allegedly seized as per Ext.P6 scene mahazar was in the physical possession of the appellant. 9. Another important contention raised by the learned counsel for the appellant is that as per the version of the prosecution, the accused was arrested by 4.55 pm on 15.6.2008 and Ext.P11 statement allegedly given by the appellant was obtained when he was under police custody and therefore, Ext.P11 statement is hit by Sections 25 and 26 of the Indian Evidence Crl.A.No.2074 of 2010 :-7-: Act,1872 (for short 'the Act') and therefore, the same cannot be used under Section 27 of the Act. In support of his contention, the learned counsel placed reliance upon the decisions of the Apex Court reported in State of Rajasthan v. Shanti [(2009) 12 SCC 400), State of Orissa v. Laxman Jena [(2009) 16 SCC 332), Mohd. Alam Khan v. Narcotics Control Bureau and another (AIR 1996 SCC 3033), Kanhaiyalal v. Union of India [(2008)4 SCC 668) and State of A.P. v. Gangula Satya Murthy (1997 (1) SCC 272). 10. On the other hand, the learned Public Prosecutor strenuously submitted that there is no illegality in the finding of the trial court with respect to the second seizure, especially when this court has approved the prosecution case regarding the first seizure. According to the learned Public Prosecutor, the compliance of Sections 41 and 42 arose only when the officer concerned is receiving an information as contemplated therein and in the present case, requirement of Sections 41 and 42 is strictly complied with and it was, on the basis of such information, the first seizure was effected. The law does not contemplate recording information again in terms of Section 41 and 42, when the officer concerned gets information during the course of investigation, which commenced on the basis of a first and formal Crl.A.No.2074 of 2010 :-8-: information received. It is the further contention of the learned Public Prosecutor that there is no legal impediment in effecting the seizure on the basis of the information furnished by the accused, who is in custody after his arrest, with the aid of S.27 of the Act. According to the learned Public Prosecutor, the prohibitory clause contained in Sections 24, 25 and 26 of the Act is applicable, irrespective of the fact whether the person, who makes such confession, is arrested or not. Thus, according to the learned Public Prosecutor, as Section 27 of the Act is an exception to Sections 24 to 26 of the Act, the second seizure, on the basis of the disclosure statement of the accused, squarely comes u/s. 27 of the Evidence Act. In support of the above submission, learned Public Prosecutor placed reliance upon the following decisions, namely, In re Ramachandran(AIR 1960 Madras 191), State of Bihar v. Madanlal Agarwalla and Others (AIR 1967 Patna 68) and State of Uttar Pradesh v. Deoman Upadhyaya (AIR 1960 SC 1125). 11. I have carefully considered the argument advanced by Sri.T.G.Rajendran, learned counsel for the appellant and Sri.P.A.Salim, learned Public Prosecutor. Once again I have scrutinized the evidence and materials and perused the impugned supplemental judgment of the court below. Crl.A.No.2074 of 2010 :-9-: 12. As I indicated earlier, this court by judgment dated 23.3.2010 in Crl.A.No.2088 of 2009 confirmed the conviction of the appellant u/s.20(b) (ii)(C) of the NDPS Act, on the basis of the approval of the finding of the trial court that the prosecution has succeeded in proving the allegation that the appellant was found in possession of 2.100 Kgms. Ganja in front of the KSRTC bus stand at Perinthalmanna at about 4.55 p.m on 15.6.2008. But this court, for the reason assigned in that judgment, was not inclined to approve the sentence awarded against the appellant by the trial court, since the legal point raised by the appellant with respect to the second seizure was not considered by the judge of the trial court and therefore, awarding of a sentence on the allegation that the appellant was found in possession of 32 Kgms of ganga was improper and accordingly, the matter was remanded back. Now the trial court by the impugned supplemental judgment, after hearing the objections and contentions raised by the appellant has found that the second seizure from the house of appellant is proved by the evidence of PW1 and PW4, who accompanied PW12, for the second seizure and by the evidence of PWs.9 and 10 who are attesters to Ext.P5 seizure mahazar. It is the above finding now under challenge. 13. As I mentioned earlier, the first point raised by Sri.T.G.Rajendran, Crl.A.No.2074 of 2010 :-10-: counsel for the appellant is that, there is no compliance of Sections 41 and 42 of the NDPS Act. I am unable to sustain the above contention. The first seizure itself was effected on the basis of the information received by PW12, who is the then Circle Inspector of Police, Perinthalmanna Police Station. That information itself was to the effect that one person wearing “black Kalli mundu” and “ black kalli shirt” who was above at the age of 50 from Attappadi found in possession of ganja in a big shopper from KSRTC bus stand at Perinthalmanna. PW12, on receiving the information reduced the same into writing and acted upon it and thus, prepared report u/s.42 and sent the same to his immediate superior officer and thereafter, proceeded to the spot and in terms of the demand of the appellant and in compliance with the statutory mandate contained in S.50 of the NDPS Act, PW12, brought the Tahsildar, Perinthalmanna, who is examined as PW2 and thereafter PW12 conducted search and recovered 2.100 Kgms of ganja from the physical possession of the appellant as per Ext.P1 seizure mahazar. That part of seizure is approved by this court as per the earlier judgment. From the above finding, it can be seen that on receiving the information, PW12 has duly complied with the requirement of S.42 consequent to which seizure was effected. In view of Sections 41 and 42 of the NDPS Act, in the Crl.A.No.2074 of 2010 :-11-: present case, according to me, it can be seen that the requirement of recording of an information received u/s. 42 is satisfied with. Nowhere in the NDPS Act it is stated that, as and when information received during the course of investigation, the officer concerned should repeat the formalities contemplated u/s.41 or 42 as the case may be. In view of the various provisions contained in the NDPS Act as well as in the Code of criminal procedure, even if a new information is obtained during the course of investigation connected with the seizure of contraband article in pursuance of a former information, the officer concerned need not repeat the formalities that contemplated either by S.41 or by S.42 of NDPS Act. Under Section 41(2), it is specifically mentioned about the powers of the officers mentioned therein in the Act, for issuing authorization and also his power to conduct search. Even otherwise, in the present case, since the officer who, received the information, was a Gazetted Officer, as PW12 was working as Circle Inspector of Police, a post of Gazetted rank, by virtue of Section 41(2) of the NDPS Act, he is not bound to reduce into writing the information received by him. In view of S.42, the officer acting u/s.42 or the officer acting u/s.41(2) in the light of Sub S.(3) of S.41, can do whatever steps required especially on the basis of authority given as per S.42(1) Crl.A.No.2074 of 2010 :-12-: clauses (a) to (d). So, the authority vested with an officer either u/s.41(2) or u/s.42(2) for the entry, seizure and arrest with respect to the contraband article are not confined to the contraband articles covered by the information so received. In the light of the language used in S.41(2) and 42 (2) of the Act, it is crystal clear that while acting on the basis of the information so received and during the course of investigation/enquiry in pursuance of such information, he can seize any contraband article of any description and any quantity in addition to one mentioned in the information already received. In view of S.51 and S.67 of the NDPS Act, during the course of investigation, the officer concerned can seize any contraband article other than what mentioned in the information on the basis of the investigation started. The object behind S.41(2) and S.42 of the NDPS Act, is to ensure the promptness of the action from the side of the officer who received such information and to set the law in motion and to further guarantee against the misuse of the provisions and to prevent false implication of innocent persons. In the present case, as evident from the first seizure, PW12 has complied with the statutory requirement of S.41(2) and 42 of the NDPS Act and the law set into motion and it is during such investigation, and after the arrest of the accused, who divulged the Crl.A.No.2074 of 2010 :-13-: information about the possession of 30 Kg. Of ganja, and therefore PW12 is not statutorily bound to repeat the proceedings as contemplated either u/s.41 (2) or 42 of the NDPS Act. 14. In the present case, the investigation is undertaken by PW12, the Circle Inspector of Police, on the basis of the information received by him and according to the prosecution, after the seizure of 2.100 Kgms of ganja and the arrest of the appellant based upon the first information received by PW12, when the appellant was questioned, he had divulged Ext.P11 information on the basis of which the second seizure was effected. 15. The learned counsel for the appellant submitted that such a confession cannot be accepted as legal one and against the acceptance of Ext.P11 u/s. 27 of the Evidence Act, the learned counsel raised several objections. The first and foremost contention raised by the learned counsel is to the effect that on the basis of the first seizure, the appellant/accused was arrested at 4.55 p.m on 15.6.2008 and Ext.P11 confession was recorded while the appellant was under arrest and in Police custody. Therefore, the prohibitory clause that contained in S.24, 25 and 26 of the Act are attracted. In support of the above contention, the learned counsel heavily relied upon the decision of the apex court reported in Veera Ibrahim v. The State of Crl.A.No.2074 of 2010 :-14-: Maharashtra (AIR 1976 SC 1167), Kanhaiyalal v. Union of India (2008 (4) SCC 668) and Raju Premji v. Customs, NER, Shillong Unit (2009 (16) SCC 496). On the other hand, Sri.P.A.Salim, learned Public Prosecutor, on the strength of the decision of the Apex court reported in In re Ramanchandran(AIR 1960 Madras 191), State of Bihar v. Madanlal Agarwalla and Others (AIR 1967 Patna 68) and State of Uttar Pradesh v. Deoman Upadhyaya (AIR 1960 SC 1125) strenuously submitted that S.27 of the Evidence Act is applicable and attracted in the present case irrespective of the fact that whether the disclosure statement of the accused/appellant was recorded before or after the arrest. 16. In the light of the above rival pleadings, the question to be considered is whether there is any legal impediment in accepting the statement made by the appellant/accused, who involved in any of the offence contemplated under the NDPS Act after his arrest under Section 27 of the Evidence Act,1872. In order to have clear understanding of the above question of law, a close scrutiny of certain relevant provisions in the Indian Evidence Act,1872 is absolutely necessary. Section 24 of the Evidence Act reads as follows:- Crl.A.No.2074 of 2010 :-15-: “24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding.-- A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.” (emphasis supplied) Section 25 says as follows:- “25. Confession to police officer not to be proved.--No confession made to a police officer, shall be proved as against a person accused of any offence.” (emphasis supplied) Section 26 reads as follows:- “26. Confession by accused while in custody of police not to be proved against him.-- No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.” (emphasis supplied) Section 27 reads as follows:- “27. How much of information received from accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession Crl.A.No.2074 of 2010 :-16-: or not, as relates distinctly to the fact thereby discovered, may be proved.” (emphasis supplied) Thus, on a reading of the above sections of the Evidence Act, it can be seen that Section 24 of the Evidence Act deals about the situation when the confession caused by inducement,threat or promise is irrelevant in a criminal proceedings. Similarly, under Section 25 of the Evidence Act, the confession made by a person to a Police Officer, shall not be proved against such person accused of any offence. But, on a reading of Section 26 of the Evidence Act, it can be seen that even if an accused, while in the custody of a Police Officer, makes a confession, the same can be proved as against him if such a confession was made in the immediate presence of the Magistrate. So Sections 24 to 26 of the Act deal with confession. It is now a settled position of law that Section 27 is an exception to Sections 24,25 and 26. On a close reading of Section 27 of the Evidence Act, it can be seen that what made exempted or excepted is an information, whether the same is in the nature of confession or not, on condition that on the basis of such information, if any fact is deposed to as, discovered in consequence of the information received from a person accused of any offence, even if he is in the custody of the Police Officer and the same relates distinctly to the fact thereby discovered can be proved against such accused. On a scrutiny of Crl.A.No.2074 of 2010 :-17-: the provisions of Sections 24 to 27, it can be seen that nowhere particularly in any of these sections, no distinction is drawn by the legislature with respect to the confession or information, as the case may be made or furnished, before or after the arrest. So the prohibition clause envisaged by Sections 24,25 and 26 is applicable irrespective of the fact whether the accused is arrested or not. Therefore, the exception under Section 27 is applicable and the information or confession saved is irrespective of the fact whether the person furnished or made the same, accused of any offence is arrested or not. According to me, the above observation and findings are justified by precedents, especially, in the light of the decision of the Apex Court reported in State of Uttar Pradesh v. Deoman Upadhayaya (AIR 1960 SC 1125) and the decision of the Patna High Court reported in AIR 1967 Patna 68 and