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IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.S. Sudha, J.
Manumayaseelan, S/o. Sreedharan – Appellant
Versus
State of Kerala through the Sub-Inspector of Police – Respondent
CRL.A No. 2130 of 2007
Decided On : 12-08-2022
Code of Criminal Procedure,1973 - section 232,313(1)(b) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20(b)(ii)(B), 41,42,42(2), 43,50,57 – Acquittal - Power to issue warrant and authorisation – Power of seizure and arrest in public place – Conditions under which search of person shall be conducted – Report of arrest and seizure - Whether conviction entered and sentence passed against accused by court below are sustainable or not - Whether he had any authority to deal with any such substances to which accused answered in negative - Whether latter was aware of fact that he could ask for the presence of a gazetted officer or magistrate, to which accused answered in affirmative and said that same was unnecessary and if required, PW1 himself could conduct search - Whether he was aware that he is entitled to be examined in presence of a gazetted officer - As Section 42 of the Act is not applicable in the present case, the seizure having been effected in a public place, the question of non-compliance, if any, of the provisions of Section 42 of the Act is wholly irrelevant (Para 25).
Findings of the Court :
Normally, in cases of this nature, there will only be evidence of official witnesses in support of prosecution story - However, in this case, there is evidence of PW3, an independent witness - According to accused, he was not arrested from scene of occurrence as alleged by prosecution, on other hand he had been arrested from Rest House - In order to establish this case, he has also examined DW2 - Accused when examined as DW1 deposed that he had been arrested and that he had been kept under unlawful detention in police station, during which time he had also been manhandled by police - In cross examination, he admitted that he had not stated to magistrate before whom he was produced that he had been manhandled - He further deposed that he neither knows name of person who has been arrayed as a witness in his witness schedule nor has he seen him and also that he does not intend to examine said person as a defence witness.
Result: Appeal dismissed
JUDGMENT :
In this appeal filed under Section 374(2) Cr.P.C, the appellant, the accused in S.C.No.1/2007 on the file of the Special Court (NDPS Cases), Vadakara, challenges the conviction and sentence passed against him for the offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act).
2. The prosecution case is that on 05/03/2006 at 04.30 p.m, the accused without any authority was found in position of 1.10 kgs of ganja near the comfort station of the new bus stand, Thalassery. Hence, the accused is alleged to have committed the offence punishable under Section 20(b)(ii)(B) of the Act.
3. PW1, the then Sub Inspector, Thalassery Police Station is the detecting officer who registered the crime, that is, Crime No.84/2006, Thalassery Police Station and lodged Ext.P6 FIR. PW6, the then Circle Inspector, Thalassery, conducted the investigation and submitted the final report alleging commission of the aforesaid offence.
4. On appearance of the accused before the court below, he was furnished with copies of all the prosecution records. On 03/05/2007, the court below framed a charge under Section 20(b)(ii)(B) of the Act, which was read over and explained to the accused, to which he pleaded not guilty. The prosecution examined PWs.1 to 6 and got marked Exts.P1 to P12 and MO1 series to MO3 in support of the case.
5. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C with regard to the incriminating circumstances appearing against him in the evidence of the prosecution. He denied those circumstances and maintained his innocence.
6. As the court below did not find it a fit case to acquit the accused under Section 232 Cr.P.C, the accused was asked to enter on his defence and adduce evidence in support thereof. The accused offered himself as a witness and hence he was examined as DW1. One another witness was examined as DW2.
7. On a consideration of the oral and documentary evidence and after hearing both sides, the court below by the impugned judgment convicted and sentenced the accused to rigorous imprisonment for a term of 3 years and to a fine of Rs.10,000/-and in default of the payment of fine to undergo rigorous imprisonment for a period of 6 months for the offence punishable under Section 20(b)(ii)(B) of the Act. Eligible set off under section 428 Cr.P.C. has also been allowed. It is this judgment which is assailed in this appeal by the appellant/accused.
8. In the appeal memorandum it is alleged that there is violation of the mandatory provisions of Section 50 of the Act and that the court below without properly appreciating the oral and documentary evidence has passed the impugned judgment and hence the same is liable to be reversed.
9. The only point that arises for consideration in this appeal is whether the conviction entered and the sentence passed against the accused by the court below are sustainable or not.
10. Heard Sri.Sunny Mathew, the learned counsel for the appellant and Ms.M.N.Maya, the leaned Senior Public Prosecutor.
11. Before I examine the tenability of the arguments advanced on behalf of the appellant/accused, I briefly refer to the oral and documentary evidence adduced by the prosecution, before the court below. PW1, the detecting officer in Ext.P6 FIS and FIR has recorded that on the date of the incident, he along with party were on law and order patrol duty. While so, he received secret information that a person is engaged in the sale of ganja in the vicinity of the comfort station situated in the new bus stand, Thalassery. He then reduced the information into writing, forwarded it to his superior officer, and as per the latter's instructions, proceeded to the place of occurrence. When the police party reached the place of occurrence, he saw the accused standing near the comfort station with a white polythene cover in his hand. When he approached the accused, the latter became perplexed and attempted to run away. T
Section 43 deals with the power of seizure and arrest of the suspect in a public place.
Possession of narcotics requires no personal search compliance under Section 50 when found during public checks; evidence established conscious possession leads to conviction under the NDPS Act.
Prosecution has failed to prove the said mandatory compliance as required in law, i.e., the mandatory provision of Section 50 of NDPS Act, 1985. Therefore, appellants who are accused are entitled to ....
The court emphasized that compliance of Sec. 50 of the NDPS Act was not necessary as there was no personal search of the accused, and the accused's conscious possession of Ganja led to the presumptio....
The main legal point established in the judgment is the interpretation and application of Section 50 and Section 54 of the NDPS Act in the context of proving the possession of contraband substance an....
The court confirmed that statutory requirements under the NDPS Act were met, upholding the conviction for possession of a substantial quantity of contraband.
Mandatory provisions under Sections 42 and 50 of the NDPS Act must be followed strictly; non-compliance vitiates prosecution.
The prosecution's burden to prove the recovery of contraband from the accused, the presumption under Section 35, and the link between the contraband and the accused were central legal principles esta....
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