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High Court of Kerala
THE HONOURABLE MR. JUSTICE PAREED PILLAY
Ahammed Koya
Versus
State of Kerala
Crl.A. 167 of 1990
Decided On : 18-08-1990
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 50 - CONFESSION - ADMISSIBILITY - SECTION 25 OF THE EVIDENCE ACT - INTERPRETATION - SECTION 53 OF THE ACT - POWERS OF OFFICERS - SECTION 42 OF THE ACT - SEARCH AND SEIZURE - SECTION 54 OF THE ACT - BURDEN OF PROOF - DELAY IN SENDING CONTRABAND ARTICLE TO COURT - EFFECT.
Fact of the Case:
The appellant was convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985, for possessing 115 grams of opium. He was sentenced to ten years of rigorous imprisonment and a fine of Rs. 1,00,000. The appellant challenged the conviction on several grounds, including the admissibility of his confession, the failure to produce him before a Gazetted Officer or Magistrate before the search, and the delay in sending the contraband article to the court.
Finding of the Court:
The court held that the appellant's confession was admissible in evidence, as the officer who recorded the confession was not a police officer within the meaning of Section 25 of the Evidence Act. The court also held that the appellant was not denied his right to be produced before a Gazetted Officer or Magistrate before the search, as Section 50 of the Act does not require the officer to ascertain the opinion of the accused in this regard. The court further held that the delay in sending the contraband article to the court did not cause any prejudice to the appellant, as opium is not an article that is likely to be decayed during the course of time.
Issues: 1. Whether the appellant's confession was admissible in evidence. 2. Whether the appellant was denied his right to be produced before a Gazetted Officer or Magistrate before the search. 3. Whether the delay in sending the contraband article to the court caused any prejudice to the appellant.
Ratio Decidendi: 1. The officer who recorded the appellant's confession was not a police officer within the meaning of Section 25 of the Evidence Act, as he was not empowered to lodge a report under Section 173 of the Code of Criminal Procedure. 2. Section 50 of the Act does not require the officer to ascertain the opinion of the accused as to whether he wants to be searched before a Gazetted Officer or a Magistrate. 3. The delay in sending the contraband article to the court did not cause any prejudice to the appellant, as opium is not an article that is likely to be decayed during the course of time.
Final Decision: The appeal was dismissed.
Appellant is the accused in S.C.143 of 1989 of the Assistant Sessions Court, Badagara. He was charged under S.1s of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for shortthe Act) for having been found in possession of 115 grams of Opium. The Assistant Sessions Judge convicted and sentenced him to undergo rigorous imprisonment for ten years and also to pay a fine of Rs.1,00,000/-. In default of payment of fine he has to undergo rigorous imprisonment for a further period of two years.
2. Prosecution alleges that on 7-12-1987 at about 3.45p.m. the accused while travelling in a bus belonging to Kerala State Road Transport Corporation was found in possession of 115 grams of Opium. P.W.1 Superintendent of Special Customs Preventive Unit got information that smuggled gold was carried by a passenger in a bus. He proceeded towards Quilandy. He checked vehicles coming from the northern side at Chengottukavu. The bus coming from Payyannur to Perinthalmanna was stopped at Chengottukavu. Accused was one of the passengers in the bus.
P.W.1 searched the body of the accused in the presence of P.W.4 and other independent witnesses.
A packet wrapped in a sheet of newspaper was found in his underwear pocket. Black sticky substance suspected to be Opium was found in the possession of the accused. It weighed 115 grams. P.W.4 has corroborated the evidence of P.W.I. P.W.1 recorded Ext.P2 statement of the accused. P.Ws. 2 and 3 who are witnesses in Ext.P1 mahazar supported the evidence of P.W.1 regarding the seizure of the packet from the accused.
3. Thelearned counsel for the accused submitted that Ext.P1 and the evidence of P.Ws. 2 and 3 do not agree and that alone is sufficient to suspect the prosecution case. In Ext.P1 it is stated that P.Ws. 2 and 3 came to the place of occurrence as required by the Superintendent of the Special Customs Preventive Unit. P.Ws. 2 and 3 stated that they happened to be there quite casually. P. W.1 has also stated so. Counsel for the accused Submitted that in view of the evidence of P.Ws.1 to 3 as aforesaid the version in Ext.P1 cannot be true and as the prosecution case from the start is shrouded in suspicion the accused is entitled to benefit of doubt.
The above inconsistency is not in any way detrimental to the prosecution case especially when the accused has confessed to the possession of the contraband article.
4. It is contended by the accused that there is no evidence to hold that P. W.1 is an authorized officer under S.42 of the Act and so the prosecution has no legal validity. S.53 enables the Central Government after consultation with the State Government by notification to invest any officer of the departments of Central Excise, Narcotics, Customs, Revenue, Intelligence or Border Security Force or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of the offences under the Act. In exercise of the powers conferred by S.53(1) the Central Government by order dated 14-11 -1985 has empowered the officers of and above the rank of Inspector in the Departments of Central Excise, Narcotics, Customs and Revenue Intelligence and in Central Economic Intelligence Bureau to exercise the powers and perform the duties of an officer in charge of a police station for the investigation of offences under the Act. In view of the notification there is no merit in the contention that P.W.1 is not an authorized officer who is empowered under S.42 to make any search. It is also pertinent to note that when P. W.1 was cross-examined, no question was put to him challenging his competency under the Act to search the accused.
5. Ext.P2statement of the accused which is admitted by him shows that he was searched by P.W.1 and Opium was seized from him. Accused while questioned under S.313 Cr.P.C. admitted that he had signed Ext.P2. Accused contended that Ext.P2 confession before P. W.1 who is invested with powers of an officer in charge of the police stat
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