Back
2023 Supreme(Online)(KER) 17917
HIGH COURT OF KERALA
VIJU ABRAHAM, J
A.FAROOK – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A 2962 2008
SRI.NIREESH MATHEW, PUBLIC PROSECUTOR RENJIT GEORGE
Strict compliance with procedural requirements under the NDPS Act is essential for conviction; failure to adhere to such provisions results in the benefit of doubt for the accused.
Headnote:
NDPS - Possession of Contraband - NDPS Act - Sections 20(b)(ii)(B), 57 - The court emphasized strict compliance with statutory procedures under the NDPS Act, particularly regarding arrest protocols and reporting requirements, which were not met, leading to the acquittal of the accused.
Fact of the Case:
The accused was charged with the illegal possession of 1.055 kgs of ganja. He was arrested without valid documentation, raising doubts regarding the evidence and procedures followed during the arrest and seizure.
Finding of the Court:
The court found significant lapses in procedural compliance by the prosecution, including no explanation for the presence of the crime number in the arrest memo and failure to comply with Section 57 of the NDPS Act.
Issues: Whether the prosecution complied with statutory procedural requirements of the NDPS Act, specifically related to the arrest, the reporting of seizure, and jurisdiction competency.
Ratio Decidendi: The presence of significant procedural lapses and non-compliance with mandatory statutory provisions resulted in a reasonable doubt regarding the accused's guilt.
Final Decision: The accused was acquitted of the charges under the NDPS Act.
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE VIJU ABRAHAM TH TUESDAY, THE 26 DAY OF SEPTEMBER 2023 / 4TH ASWINA, 1945 CRL.A NO. 2962 OF 2008 AGAINST THE JUDGMENT DATED 18.12.2008 IN SC 1074/2005 ON THE FILE OF ADDITIONAL SESSIONS JUDGE-I,PALAKKAD APPELLANT/ACCUSED:
A.FAROOK, AGED 37 YEARS, S/O.ASSANAR, WARD NO.31, BHARATH NAGAR, NURANI, PALAKKAD DIST.
BY ADV SRI.NIREESH MATHEW RESPONDENT/COMPLAINANT:
STATE OF KERALA INSPECTOR OF POLICE, PALAKKAD TOWN SOUTH POLICE, STATION, PALAKKAD DISTRICT, REPRESENTED BY PUBLIC, PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY ADV PUBLIC PROSECUTOR RENJIT GEORGE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
26.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
VIJU ABRAHAM,J -------------------
-------------------------------------
Dated this the 26th day of September, 2023
JUDGMENT
The appellant is the accused in SC No.1074 of
2005 on the file of the Additional Sessions Judge- I, Palakkad alleging commission of offence punishable under Section 20(b)(ii)(B) of the NDPS Act .
2. The prosecution case is that on 11.01.2005 at about 5 pm., the accused was found in possession of 1.055 kgs of ganja at a lane leading to Narikuthi, lying on the northern side of the compound of Palakkad Town Railway Station in a plastic carry bag, for sale without any valid documents.
3. On the side of the prosecution, PWs.1 to 6 were examined and Exts.P1 to P9 were marked and MO1 and MO2 were identified.
4. The trial court found the accused guilty and convicted and sentenced him to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.20,000/-, and in default of payment of fine, to undergo rigorous imprisonment for 2 months. Set off was also allowed by the trial court.
5. Aggrieved by the said conviction and sentence, the present appeal has been filed.
6. The learned counsel appearing for the appellant raised various contentions assailing the conviction and sentence passed by the trial court. Ext.P1 is the arrest memo dated 11.01.2005 in which the crime number is seen entered. PW1 who is the detecting officer deposed that the accused was arrested at 5.15 p.m. and Ext.P1 is the arrest memo prepared at the time of arrest. He further deposed that he went to the Town North Police Station along with the contraband and the accused and a crime was registered and the FIR in the said crime is marked as Ext.P3. It is to be seen that FIR was registered subsequent to the arrest and after reaching the police station. So the presence of the crime number in the arrest memo is a suspicious circumstance which ought to have been explained by the prosecution, which has not been done in the present case. This Court in Rafeeque v. Sub Inspector of Police [ 2020 (4) KLT 188 ] has held that presence of the crime number of the case in the arrest memo prepared by the detecting officer at the spot of the occurrence, in the absence of any explanation offered by the prosecution give rise to either of the two inferences, that the first information was recorded prior to the alleged recovery of the contraband or that the number in the first information report was inserted in the arrest memo after its registration and that in both situations it seriously reflects upon the veracity of the prosecution version of the incident and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution. Therefore, since no explanation is offered by the prosecution regarding the same, it creates doubt about the manner in which the seizure and arrest were effected.
7. Another contention raised by the learned counsel for the appellant is regarding violation of Section 57 of the NDPS Act which mandates that whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior. Evidence of PW1 would reveal that a report has b
