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2002 Supreme(Ker) 65
Judges : M.R.HARIHARAN NAIR
Joseph - Appellant
Versus
State of Kerala - Respondent
Case No : C.R.A. No. 755 of 2001
Decided On : 01/28/2002
Advocates Appeared :
T.K. Sreekala (S. B.) For Appellant Public Prosecutor (T. K. Latif) For Respondent
Headnote:
Narcotic Drugs and Psychotropic Substances Act 1985(NDPS Act)– S. 20(b)(i) 50 – Violation Of Safeguards in S. 50, NDPS Act – The appellant, who is presently undergoing sentence as per the judgment of the Additional Sessions Judge, acting as a Special Court for the trial of the NDPS Act cases, challenges the legality of the aforesaid judgment whereby he, as the 2nd accused in S.C., was convicted for the offence under S. 20(b)(i) of the NDPS Act and sentenced to undergo rigorous imprisonment for one year and to pay fine on the allegation that he was found by PW6 Assistant Sub Inspector of Alleppey North Police Station to be in possession of ganja contained in 12 small packets in the company of the 1st accused who, in turn, was having 8 such packets with him–Counsel for appellant submitted that the procedure followed by PW6 is violative of the safeguards enshrined in S. 50 of the NDPS Act; that the manner in which the sample was prepared is also against the requirements of law and that in the circumstances, the accused is entitled to an acquittal– Held, Court find considerable force in the contention of the learned counsel for the appellant that the procedure followed by PW6 was defective and against the provisions of law– First of all, he was an unempowered officer for the purpose of detection under the NDPS Act– As per G.O.(Ms) the officers of police of and above the rank of Sub Inspector of Police, alone are empowered to act under S. 42 of the NDPS Act– PW6 being an Assistant Sub Inspector of Police, obviously, does not come in that category and he did not have the power to make searches and detections under the NDPS Act– The entire proceedings on his part are vitiated– In fact, in the present case, there was no communication of the rights to the accused by PW6; nor was any proper right of option given to the accused–In these circumstances, Court have no doubt at all in its mind that there has been serious violation of the requirements of S. 50 of the NDPS Act and that the search and seizure are vitiated– The accused is entitled to the benefit flowing from this situation–In the matter of preparing the sample also there has been serious violation–In the nature of the case, it was incumbent upon the empowered officer who makes the search and seizure to weigh the contents of the packet allegedly held by each of the accused separately and to prepare samples from each set. In the circumstances, Court find that the preparation of the samples and weighment of the ganja was also done in an improper and illegal manner–Violation of S. 50 of the NDPS Act which is proved in the case certainly entitles the accused to get acquittal– Consequently the appeal is allowed and the impugned judgment, as far as the appellant (2nd accused) is concerned is set aside– The accused is found not guilty and acquitted– He will be set at liberty forthwith unless his continued detention is warranted in connection with some other case– Fine, if any, paid by him will be refunded– Appeal Allowed
M. R. Hariharan Nair, J.
The appellant, who is presently undergoing sentence as per the judgment of the Additional Sessions Judge, Alappuzha, acting as a Special Court for the trial of the NDPS Act cases passed on 28.6. 2001, challenges the legality of the aforesaid judgment whereby he, as the 2nd accused in S. C. No. 147/98, was convicted for the offence under S.20(b)(i) of the NDPS Act and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 10, 000 (in default, simple imprisonment for six months) on the allegation that at about 11.45 am on 28.8.1997 he was found by PW6 Assistant Sub Inspector of Alleppey North Police Station to be in possession of ganja contained in 12 small packets in the company of the 1st accused who, in turn, was having 8 such packets with him. The total weight of the ganja contained in the 20 packets was alleged to be 16.5 grams.
2. As the counsel, who filed the appeal was not available for arguing the case, Smt. T.K. Sreekala was appointed on State Brief to represent the appellant. She submitted that the procedure followed by PW6 is violative of the safeguards enshrined in S.50 of the NDPS Act; that the manner in which the sample was prepared is also against the requirements of law and that in the circumstances, the accused is entitled to an acquittal.
3. On the arguments advanced in this case, the points that arise for decisions are:
(1)Whether there has been violation of S.50 of the NDPS Act?
( 2 )Whether PW6, who made the search and seizure, was incompetent to do so?
( 3 )Whether there was impropriety in the procedure followed by PW6 in the matter of preparing samples?
( 4 )Reliefs.
4. Point Nos.1 and 2: These are considered together for the sake of convenience. The version of PW6, who was admittedly an Assistant Sub Inspector of Police as on the date of occurrence in this case, was that while on law and order duty on the relevant date and while travelling in the police jeep with other police men, a person signalled the jeep to be stopped and when stopped, conveyed the information to him that two persons were envisaged in the sale of ganja behind the closed shop available in the Co-operative Hospital compound. He informed the matter to the Circle Inspector of Police and proceeded to the spot; found the accused standing there and proceeded to inspect what was available in the packets held by them. He also deposed that on such search, it was found that 12 small packets held by the appellant contained ganja. An amount of Rs. 50 was also found inside the larger packwherein the said 12 small packets were found.
5. According to PW6, on finding that the accused was holding ganja in his hand, he proceeded to arrest the accused at 11.45 a. m. and decided that a body search of the accused was also necessary. For that purpose, he informed the accused of his rights to have the body search in the presence of a Gazetted Officer and thereafter got down PW7 Circle Inspector of Police by contacting him over the wireless system. The Circle Inspector of Police reached the spot at 12.30 noon and conducted the body search of the accused; but other than a sum of Rs. 500/- kept by the accused, no other contraband was found. According to PW. 6, he mixed the contents of the packets held by the two accused together and the total weight was found to be 16.5 grams. He also prepared two samples out of the said mixture each weighing 5 grams and got Ext. PI mahazar prepared. After recourse to other procedural formalities, the accused and the contraband were taken to the Police Station and proceeded with further.
6. I find considerable force in the contention of the learned counsel for the appellant that the procedure followed by PW6 was defective and against the provisions of law. First of all, he was an unempowered officer for the purpose of detection under the NDPS Act. As per G. O. (Ms) No.146/90/TD dated 22.10. 1990 the officers of police of and above the rank of Sub Inspector of Police, alone are
