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IN THE HIGH COURT OF KERALA AT ERNAKULAM
R. NARAYANA PISHARADI, J.
Faijas S/o Kareem – Appellant
Versus
State of Kerala – Respondent
Crl. Appeal No. 353 of 2015
Decided On : 03-08-2020
Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 22(b) and 22(c) – Search and seizer of contraband – Conviction – Denial of seizer of contraband - Appellant/accused in possession of 17 ampoules of Buprenorphine and 12 ampoules of Diazepam injection along with some syringes and needles
Finding of the Court:
no proper compliance with the requirement of the provision contained under Section 50(1) of the Act - unexplained delay in producing the seized substances before the court and absence of evidence as to how and in what condition the seized substances, including the samples, were kept in the police station till the date of their production in the court alongwith the circumstance that there is absence of evidence regarding the nature of the seal used by the detecting officer for sealing the sample packets, create doubt as to whether seizure of the substances was effected from the accused in the manner alleged by the prosecution. The benefit of that doubt shall be given to the accused - sample seal mentioned in the chemical analysis certificate can also be the seal of the court. A comparison of the seal affixed on the sample packet with the specimen seal of the court will not give any assurance that the sample taken from the possession of the accused had reached the chemical examiner for analysis. Such an assurance would be possible only when the specimen of the seal affixed on the sample packet is provided to the chemical examiner for comparison. Such link evidence is missing in this case.
Result: Appeal is allowed
JUDGMENT :
R. NARAYANA PISHARADI, J.
1. The appellant is the accused in the case S.C. No. 92/2012 on the file of the Court of the Special Judge (NDPS Act Cases), Vatakara.
2. The appellant stands convicted and sentenced for committing the offences punishable under Sections 22(b) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act’).
3. The prosecution case is that, on 15.11.2011, at about 12.45 hours, inside the compound of the Government Hospital at Sulthan Bathery, the Sub Inspector (PW-3) of Sulthan Bathery police station found the appellant/accused in possession of 17 ampoules of Buprenorphine and 12 ampoules of Diazepam injection along with some syringes and needles. PW-3 seized the contraband substances as per Ext.P1 mahazar.
4. The case against the accused was registered as Crime No. 872/2011 of Sulthan Bathery police station. The initial investigation of the case was conducted by PW-6 Circle Inspector. After completing the investigation of the case, PW-7 Circle Inspector filed final report against the accused for the offence punishable under Section 22(b) of the Act.
5. The trial court framed charge against the accused for the offences punishable under Sections 22(b) and 22(c) of the Act. The accused pleaded not guilty to the offences.
6. The prosecution examined PW-1 to PW-7 and marked Exts.P1 to P12 documents and MO1 to MO7 material objects. No evidence was adduced by the accused.
7. The trial court found the accused guilty of the offences punishable under Sections 22(b) and 22(c) of the Act and convicted him thereunder. The trial court sentenced him to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 30,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of three months for the offence under Section 22(b) of the Act and to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of one year for the offence under Section 22(c) of the Act and directed that the substantive sentences of imprisonment shall run concurrently. This appeal is filed by the accused challenging the conviction and sentence entered against him by the trial court.
8. The appeal was preferred by the accused from jail and an advocate was appointed by the Court as State Brief for him. Subsequently, Advocate. Sri. M.T. Balan has filed vakalath for the appellant. Heard learned counsel for the appellant and also the learned Public Prosecutor and perused the records.
9. The prosecution examined seven witnesses. PW-1 is the independent witness examined by the prosecution to prove the occurrence. PW-2 is only an attestor to Ext.P2 scene mahazar. PW-3 is the Sub Inspector who detected the offence. PW-4 was the Senior Civil Police Officer who was in the police party led by PW-3. PW-5 is the Village Officer who prepared and issued Ext.P10 site plan. PW-6 is the Circle Inspector who initially conducted the investigation of the case. PW-7 is the Circle Inspector who completed the investigation of the case and filed final report against the accused.
10. The summary of the evidence of PW-3 Sub Inspector, regarding the search and seizure, is as follows: On 15.11.2011, at 12.30 hours, while he was in the police station, he received information over phone that a person was standing inside the compound of the Taluk Hospital, Sulthan Bathery with a yellow colour cover containing narcotic drugs. PW-3 prepared Ext.P3 report under Section 42 of the Act and sent it to the Circle Inspector. He entered the information in the general diary and proceeded with police party and reached the compound of the Taluk Hospital at 12.45 hours. He saw a person (identified by PW-3 as the accused standing in the dock) carrying a plastic cover trying to run away from there. PW-3 obstructed him and ascertained his name. PW-3 told the accused, in the presence of witn
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