Back
HIGH COURT OF KERALA
SOPHY THOMAS, J
JALALUDEEN.A. – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A 396/2007
Certainly. Based on the provided legal document, here are the key points:
The case involves an appeal against conviction under the NDPS Act, specifically Sections 8(c) and 21(c), for possession of heroin (790 grams) seized during a search at Ellickal lodge in Thiruvananthapuram (!) (!) .
The prosecution's case was that the accused were found in possession of heroin during a search conducted based on secret information, and they were taken to the NCB office where formalities were completed. The accused pleaded not guilty, and the trial court convicted them based on the evidence (!) .
The appellate court found significant procedural violations during the search and seizure process, notably the failure to record grounds for the search in the language received, and the absence of proper authorization or search warrant, especially since the search was conducted after sunset (between sunset and sunrise) (!) (!) (!) .
The statutory requirement under Section 42 of the NDPS Act mandates that the grounds for belief and the information received must be recorded and sent to a superior officer within 72 hours. In this case, the information was not properly recorded in the original language, nor was it forwarded to the superior officer, violating procedural mandates (!) (!) (!) .
The conduct of the search without proper authorization, recording grounds for belief, or following the mandatory procedures renders the search illegal, thus vitiating the entire trial process (!) (!) (!) (!) .
There was a significant delay in forwarding the seized sample to the chemical laboratory, and discrepancies in the weight of the sample reached the lab versus what was seized, raising doubts about tampering or mishandling of evidence. The absence of proper custody records further undermines the credibility of the evidence (!) (!) (!) (!) .
The preparation of documents such as the 'Test memo' containing details not consistent with the timing of seizure casts doubt on the genuineness of the evidence collection process (!) (!) .
Witness testimonies, including those of the independent witness and the officials, contain contradictions regarding the conduct of the search, the arrest, and the custody of the accused, further casting doubt on the prosecution's case (!) (!) (!) .
The summons issued to the accused to appear in person at the lodge at a specific time and the subsequent conduct suggest that the accused might not have been properly taken into custody at the scene, and their non-arrest at the spot questions the validity of the seizure (!) (!) .
The investigation was found to have several procedural infirmities and violations of statutory safeguards, which are fundamental to ensuring a fair trial. These procedural lapses undermine the integrity of the prosecution's case (!) (!) (!) .
The court emphasizes that the statutory safeguards under the NDPS Act, particularly those related to search, seizure, and recording information, must be strictly followed. Non-compliance results in the trial being vitiated and the conviction being unsustainable (!) (!) (!) (!) .
Due to these procedural violations, including the lack of proper authorization, improper recording of information, delays in evidence handling, and inconsistencies in witness testimonies, the appellate court is inclined to set aside the conviction and acquit the accused (!) .
The appeal is allowed, the conviction and sentence are set aside, and the accused is acquitted and released. The bail bond is canceled accordingly (!) .
The assistance of the Amicus Curiae is recognized and recorded for contributing to the fair adjudication of the case (!) .
Please let me know if you require a detailed legal analysis or specific advice regarding this case.
JUDGMENT
This appeal is at the instance of the 1st accused in SC No.873 of 2002 on the file of Additional District and Sessions Court, Fast Track-I, Thiruvananthapuram (The Court of Special Judge for trial of cases under the NDPS Act), assailing his conviction and sentence under Section 8 (c) read with Section 21 (c) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as ‘the NDPS Act’), as per judgment dated 23.02.2007.
2. The prosecution case is that, on 07.05.2002 at 5.30 p.m, PW5, the Intelligence Officer, NCB, RIU, Thiruvananthapuram, obtained a secret information that three persons named Jalaludeen, Firoz Khan and Raju were keeping 1kg of brown sugar (heroin) in Room No.102 of Ellickal lodge near SP Fort Hospital, Thiruvananthapuram and they were staying in that room for the purpose of its sale. After recording that information and forwarding the same to the superior officer, PWs 5 and 6 reached that lodge and conducted search in room No.102, in the presence of the Manager and Watchman of that lodge. Mr.Jalaludeen (A1) and Firoz (A2) were there in room No.102 of that lodge, and on search, 790gms of brown sugar (heroin) was seized from their possession. After completing the legal formalities, the contraband along with Sri.Jalaluddin (A1) and Firoz (A2) were taken to the NCB office where OR No.2/2002 NCB/RIU/TVM was registered against them. After completing investigation, they were charged under Section 8 (c) read with Section 21 (c) of the NDPS Act, since they were found in possession of commercial quantity of brown sugar (heroin).
3. The 2nd accused Firoz Khan was absconding and so, case against him was split up and the case against the 1st accused Jalaluddin was proceeded against.
4. On appearance of the 1st accused before the trial court, charge was framed against him under Section 8 (c) read with Section 21 (c) of the NDPS Act, to which, he pleaded not guilty and claimed to be tried. Thereupon, prosecution examined PWs 1 to 6, marked Exts.P1 to P24 and identified MOs 1 to 4.
5. On closure of the prosecution evidence, the 1st accused was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record and pleaded innocence. DW1 was examined as a witness from defence side.
6. On analysing the facts and evidence and on appreciating the rival contentions from either side, the trial court found that the prosecution succeeded in proving the guilt of the 1st accused under Section 8 (c) read with Section 21 (c) of the NDPS Act and he was sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1 lakh, with a default sentence of rigorous imprisonment for three years. Aggrieved by the conviction and sentence, the 1st accused has come up with this appeal.
7. The challenges against the impugned judgment are manifold. According to the appellant, prosecution cooked up a false case against him, without any factual foundation. The statutory requirements under the NDPS Act were flouted by the officials. Inordinate delay in analysing the sample before the chemical examiner’s lab was not explained by the prosecution. There is every reason to believe that PWs 5 and 6 concocted documents in their office itself and the appellant was made a scapegoat in order to save some big guns engaged in drug trafficking.
8. Learned counsel for the appellant Adv.Smt.Suman Chakravarthy relinquished vakalath, and since the appellant did not engage any other lawyer to conduct his case, Adv.Smt.Aiswarya V.S. was appointed as Amicus Curiae. Later she expressed her inability to appear in this matter, and so Adv.Sri.P.Rakesh Thamban was appointed as Amicus Curiae.
9. Heard learned Amicus Curiae Sri.Rakesh Thamban and learned Special Public Prosecutor for NCB Sri.R. Vinu Raj.
10. The first contention taken up by the learned Amicus Curiae is that, in this case the provisions of Section 42 of the NDPS Act has been totally violated, so as to vitiate the trial.
Section 42 of the NDPS A
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
