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1999 Supreme(Ker) 568
High Court of Kerala
T.M. Hassan Pillai, J.
State of Kerala - Appellant
Versus
Niyas - Respondent
Crl.A. No. 329 of 1995
Decided On : 02-08-1999
The prosecution must establish compliance with the search and seizure provisions of the NDPS Act and prove possession of contraband beyond a reasonable doubt.
Headnote:
Narcotic Drugs and Psychotropic Substances Act - Search and Seizure - S.8(c) read with S.21 - S.50(1)
Fact of the Case:
The State appealed the acquittal of the accused under S.8(c) read with S.21 of the NDPS Act for unlawful possession of brown sugar. The acquittal was based on the failure to inform the accused about the right to be searched in the presence of a gazetted officer or magistrate before the search.
Finding of the Court:
The Trial Court acquitted the accused due to the illegal search and seizure, as the contraband was recovered in violation of S.50(1) of the NDPS Act. The prosecution failed to prove compliance with S.50(1), rendering the recovery of the illicit article suspect.
Issues: The key issue was whether the search of the accused was conducted in compliance with the provisions of the NDPS Act, and if the contraband recovery was admissible as evidence.
Ratio Decidendi: The court emphasized the requirement of informing the suspect about the right to be searched in the presence of a gazetted officer or magistrate under S.50(1) of the NDPS Act. It held that contraband seized as a result of an illegal search or seizure cannot be used to establish unlawful possession, and the prosecution must prove possession beyond a reasonable doubt.
Final Decision: The appeal was dismissed, upholding the acquittal of the accused due to the illegal search and seizure.
T.M. Hassan Pillai, J.
1. Feeling aggrieved, State has come up in appeal challenging the judgment and order of acquittal passed by the II Addl. Sessions' Judge, Ernakulam who tried the accused respondent for the offences punishable under S.8(c) read with S.21 of the Narcotic Drugs and Psychotropic Substances Act (for short 'the NDPS' Act) in C. C. No. 49/93. The acquittal was based on a clear finding recorded by the Trial Court to the effect that PW 5, the Searching Officer had not intimated accused respondent about the existence of right to be searched in the presence of a gazetted officer or a magistrate before search of the person of him was made.
2. The gravamen of the charge levelled against the accused respondent in the challan laid by PW 4 who verified the investigation conducted was that he was in unlawful possession of 200 gms. of brown sugar in contravention of the provisions of the NDPS Act or any rule or order made or conditions of licence granted thereunder.
3. The prosecution story as emerged from the evidence can be stated as follows:
On getting reliable information by P.W. 5 over phone who was the then D.I. of Police, Mattancherry at about 1.15 pm. on 15-6-93 about selling of contraband brown sugar by a young man from the place described as scene spot in Ext. P1 mahazar, PW 5 after preparing and submitting a report to that effect to the Assistant Commissioner of Police rushed to the scene spot along with the police party as directed by the Assistant Commissioner of Police to verify the truth of the information. On seeing the police party accused respondent tried to escape and his bid was foiled by the police party. He was stopped by the police party and questioned by PW 5. Suspicion arose on account of accused respondent's conduct and person of him was searched by PW 5. MO 4 match box held by the accused respondent in his right hand contained two packets of contraband (MOs. 2 and 3) weighing 100 gms. each (M.O. 2 packet was wrapped in brown paper and MO. 3 contraband was wrapped in white oil paper). Contraband was seized by PW 5. Accused respondent was arrested and seized contraband was properly packed sealed in the presence of witnesses. Accused respondent was taken to the police station and a case was registered by PW 5 as Crime No. 171/93 of Mattancherry Police Station. Ext. P7 is the FIR lodged.
4. When called upon to answer the charge levelled against him the accused respondent abjured his guilt and claimed to be tried.
5. With a view to connect the respondent accused with the crime alleged ' prosecution examined before Trial Court PWs. 1 to 5 and produced MOs. 1 to 6. Prosecution also exhibited Exts. P1 to P9. PW 2 was a formal witness.
6. Questioning the correctness of the impugned judgment and order of acquittal, learned Public Prosecutor submitted that though Exts. P1 and P7 which are contemporaneous records or other documentary evidence produced by the prosecution do not disclose compliance of requirement of informing the respondent about his right under S.50(1) of the NDPS Act to be searched in the presence of a gazetted officer or magistrate, PWs. 3 and 5, who are police officials, in no uncertain terms testified the fact of compliance of S.50 of the NDPS Act and as their evidence passed the test of reliability and is creditworthy the Trial Court is not justified in overlooking or ignoring or discarding their evidence on flippant and flimsy grounds and the reasoning for sidestepping their credit worthy evidence is faulty, palpably erroneous and patently unsound. She argued that there is no inflexible rule of law that evidence of police officials has to be discarded or that it suffers from some inherent infirmity. Prudence only requires that the evidence of the police officials, who are interested in the outcome of the result of the case, needs to be carefully scrutinised and independently appreciated. She argued that nothing substantial was brought out by the cross examiner in the lengthy cross exa
