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2018 Supreme(Ker) 1547
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MARY JOSEPH, J.
Kannoth Abdul Rahiman @ Kunhootty S/o.Kunhalan Haji – Appellant
Versus
The Sub Inspector Of Police, Malappuram – Respondent
Crl.A.No.315 of 2004
Decided on : 26-06-2018
Advocate Appeared:
For the Appellant : SRI.T.G.RAJENDRAN
For the Respondent: SMT.SHEEBA K K, PUBLIC PROSECUTOR
IMPORTANT POINT
An officer who is empowered under the NDPS Act, shall follow the procedures prescribed under the Act while conduting, search, seizure and other incidental procedures.
Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985, Section 21(b), 41, 42, 55- When a search is conducted by the officer concerned at a time between the sunset and sunrise, a search warrant from the jurisdictional Magistrate is mandatory one as mandated under Section 42 NDPS Act. Only when circumstances indicative of concealment of evidence or escape of the offender, the officer concerned can dispense with the procurement of warrant or authorization. While opting to conduct a search without obtaining a search warrant, it is mandatory that the officer concerned shall record the grounds of his belief for doing so.
An officer, who has received the properties at the police station, is obliged to take charge of the same and to keep them in safe custody, pending orders of the Magistrate, as contemplated under Section 55 NDPS Act. While there occur an inordinate delay in production of the properties seized from the spot before the jurisdictional Magistrate, the empowered officer under the NDPS Act is duty bound to state the reasons.
Statement of facts:
Judgment dated 19.02.2004 of Special Judge (NDPS Act Cases), Vadakara in S.C No.172/2003 is assailed in this Appeal. The appellant is accused No.2 in the case, who was found guilty for the offence punishable under Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and was convicted and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.60,000/-. He was also sentenced to undergo rigorous imprisonment for three months in default of payment of fine.
Finding of the Court:
It is found that PW1, the detecting officer and the officer who has conducted the search, seizure and other formalities and registered the crime have done everything in a leisurely manner. Going by the evidence of PW1 it is seen that he was not specific and particular about the compliance of the mandatory requirements of NDPS Act in the case on hand or in other words he has stated categorically that things have been done by him in the manner as it was done. It was not something the legislature demands from an officer empowered under NDPS Act to register a case coming within its purview.
Result:Crl Appeal is allowed.
JUDGMENT :
Judgment dated 19.02.2004 of Special Judge (NDPS Act Cases), Vadakara (for short 'the court below') in S.C No.172/2003 is assailed in this Appeal. The appellant is accused No.2 in the case, who was found guilty for the offence punishable under Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act') and was convicted and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.60,000/-. He was also sentenced to undergo rigorous imprisonment for three months in default of payment of fine.
2. Before adverting to the grounds of challenge, the prosecution case is summarised hereinbelow :
On 03.02.2003 at 5 a.m. the Circle Inspector of Police, Malappuram received an information that two men were engaged in transporting narcotic substance in a white coloured Maruthi Car bearing registration No.MH-02-Y-6387 from Cherur to Malappuram through Vengara-Malappuram Road. The information was recorded by him in the General Diary at the Police Station and a report as contemplated under Section 42 NDPS Act was prepared and forwarded to the Deputy Superintendent of Police, Malappuram. The Circle Inspector alongwith other policemen proceeded to the spot. They arrived at the site at 5.15 a.m. and found a Maruthi Car bearing the number referred to by the informant. The police party rushed towards the car. The driver of the car opened the door all on a sudden, got down from the car and rushed towards a river flowing through the right side of the road. The officials chased him but did not catch him. A man, who was found sitting in the front seat was brought out of the car and questioned. Answering the query, he told the police officials that the person who had fled from the scene is none other than Mr.Pakkiyam Hameed, the owner of the car. The Circle Inspector of Police then informed the person intercepted, about his right to have his body search conducted in the presence of a Gazetted Officer or Magistrate. He replied that he did not want the presence of a Gazetted Officer or Magistrate to witness the search of his body. Thus, his body search was conducted by the Circle Inspector of Police. Search being conducted before sunrise, the availability of the public there was remote.
3. In the search held, a plastic cover was recovered from the pocket of the 'burmooda' worn by him. The contents of the plastic cover on examination was suspected as brown sugar. Therefore, the accused was convinced and arrested from the spot on 5.40 a.m. Thereafter the car was searched and a plastic bag was found below the driver's seat. The contents of the plastic bag was examined and got convinced as brown sugar covered with gilt papers. One small steel coloured weighing balance, weights measuring 1 gm, 2 gms, 5 gms, 10 gms and 20 gms were also recovered from the plastic bag. The service of a goldsmith was procured and the brown sugar was weighed at the spot. Brown sugar recovered from the possession of the accused and the car weighed around 50.05 gms each. Samples were drawn from the contraband seized. Samples, remnant brown sugar and other articles recovered from the plastic bag were sealed. Seizure mahazar was prepared from the spot and the properties were seized. The accused alongwith the properties seized from the spot were transported to the police station and Crime No.61/03 was registered against the accused alleging commission of offence punishable under Section 21(b) NDPS Act. The investigation was conducted based on the FIR registered. On concluding the same chargesheet was laid against the accused arrested from the spot as well as the person who fled from the scene respectively as second and first accused. The Maruthi car was also seized and taken to the police station. Co-accused was arrested, but jumped bail and thereby made him unavailable for trial. Accordingly, the case against him was split up and refiled as S.C No.171/2003.
4. Against the 2nd accused, charge was framed by the cou
