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IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.S. Sudha, J
Abdul Rasheed S/o. Muhammed, Elayodathu Veedu – Appellant
Versus
State Of Kerala – Respondent
CRL.A NO. 123 OF 2021
(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20(b)(ii)(c) - Appeal against conviction and sentence for possession of ganja - Non-compliance with Section 52A regarding inventory and certification of seized contraband - Delay in sample reaching laboratory raises doubts on prosecution case. (Paras 1, 10, 12, 19)
(B) Criminal Procedure Code, 1973 - Section 374(2) - Appeal against conviction - Burden of proof on prosecution is higher in cases with severe penalties. (Paras 10, 19)
Facts of the case:
The appellant was convicted for possessing 21 kg of ganja, seized during a routine patrol. The trial court sentenced him to ten years of rigorous imprisonment and a fine. The appellant contended procedural lapses in the seizure process.
Findings of Court:
The court found significant procedural non-compliance regarding the handling of the seized contraband, leading to doubts about the prosecution's case.
Issues: The main issue was whether the conviction and sentence were sustainable given the alleged procedural lapses.
Ratio Decidendi: The court emphasized that non-compliance with Section 52A of the Act is critical, and procedural lapses can lead to the benefit of doubt being granted to the accused.
Result: Appeal allowed; conviction and sentence set aside.
J U D G M E N T
In this appeal filed under Section 374(2) Cr.P.C ., the appellant, the sole accused, in S.C.No.390 of 2020 on the file of the Court of Session, Palakkad, challenges the conviction entered and sentence passed against him for the offence punishable under Section 20 (b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act).
2. The prosecution case is as follows: on 15/02/2020 at about 03:50 p.m. PW1, Excise Inspector, Excise Range Office, Palakkad and his party were on routine patrolling duty. When they reached the place of occurrence, that is, the national highway junction from where a new road leads to the railway station at Olavakkode, Palakkad, they saw the accused coming from the railway station with a trolley bag and another bag. When the accused saw the Excise party he became perplexed and started looking around. Suspicions arose and hence the accused was intercepted and the bags in his possession were inspected. On examination it was found that the trolley bag contained 6 packets and the other bag contained packets wrapped with brown paper and sealed with cello tape. On examining the contents of the packets, it was found to be ganja. The contraband was found to have a weight of 21 kilograms. Hence, the contraband was seized and the accused arrested. Thus, as per the complaint filed, the accused is alleged to have committed the offence punishable under Section 20 (b)(ii)(c) of the Act.
3. Crime no.20/2020, Excise Range Office, Palakkad, that is, Ext.P6 crime and occurrence report was registered by PW1, the detecting officer. PW5, the Excise Circle Inspector, Palakkad conducted the investigation and on completion of the investigation submitted the final report alleging the commission of the offence punishable under the aforementioned Section by the accused.
4. On appearance of the accused, the trial court after complying with all the necessary formalities contemplated under Section 207 Cr.P.C . and after hearing both sides under Section 227 Cr.P.C ., framed a charge under Section 20 (b)(ii)(c) of the Act, which was read over and explained to the accused to which he pleaded not guilty.
5. On behalf of the prosecution, PW1 to PW5 were examined and Exts.P1 to P22 and MO.1 to MO.4 were marked in support of the case. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C . regarding the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence. He also filed a statement under Section 313(5) Cr.P.C . contending that he had gone to Coimbatore in search of a job. However, he was unable to secure any employment and hence returned. As he did not have any money to take a ticket, he travelled from Coimbatore to Palakkad without a ticket. He was taken into custody by the railway police. While he was in the custody of the railway police, the Excise team arrived there and made enquiries. The accused confessed that he was an accused in an earlier NDPS case for being in possession of 100 grams of ganja, for which he had been fined. Hearing this, the Excise party took him into custody and registered the false case against him stating that 21 kgs of ganja has been seized from his possession. He had not given any statement to PW1 the detecting officer waiving his right to be searched in the presence of a magistrate or a gazetted officer. The statement alleged to have been given by him was obtained by the Excise party by threatening and manhandling him.
6. As the trial court did not find it a fit case to acquit the accused under Section 232 Cr.P.C ., he was asked to enter on his defence and adduce evidence in support thereof. No oral or documentary evidence was adduced on behalf of the accused.
7. On consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found the accused guilty of the offence puni
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