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2024 Supreme(Online)(KER) 31800
HIGH COURT OF KERALA
SOPHY THOMAS, J
SHAJI – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A 813/2007
S.GOPAKUMARAN NAIR (SR.), SMT.SEENA C., PUBLIC PROSECUTOR
Search and seizure conducted by an unempowered officer under the NDPS Act renders the prosecution invalid, leading to acquittal.
Headnote:
Narcotics - Conviction - NDPS Act, Section 20(a)(i), Explosive Substances Act, Section 4(b) - The court found that the search and seizure conducted by an unempowered officer violated statutory mandates, leading to the acquittal of the accused.
Fact of the Case:
Accused were convicted for cultivating ganja and possessing explosives in a forest. They challenged their conviction, arguing that the search was conducted by an unempowered officer, violating statutory requirements.
Finding of the Court:
The court found that the prosecution failed to prove the guilt of the accused beyond reasonable doubt due to violations of statutory mandates regarding search and seizure.
Issues: Whether the search and seizure conducted by an unempowered officer violated the NDPS Act, affecting the legality of the prosecution.
Ratio Decidendi: The court held that the search and seizure were invalid as they were conducted by an officer not empowered under the NDPS Act, leading to the acquittal of the accused.
Final Decision: The appeal is allowed, acquitting the accused and they are set at liberty forthwith.
J U D G M E N T
This appeal is at the instance of accused Nos.1, 2 and 3 in Sessions Case No.167 of 1999 on the file of Additional District and Sessions Judge (Ad Hoc)-I, Pathanamthitta, challenging their conviction and sentence under Section 20 (a)(i) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as ‘the NDPS Act’) and Section 4 (b) of the Explosive Substances Act , 1908, as per judgment dated 26.04.2007.
2. Crime No.3/95 of Gavi Police Station was registered against 6 accused persons under Section 20 (a) of the NDPS Act, Section 25(1)(a) of Indian Arms Act , Section 4 (b) of Explosive Substances Act and Section 307 read with Section
34 of Indian Penal Code .
3. The prosecution allegation was that on 06.12.1995, at 4.00 p.m., while PW1 Forest Range Officer and party were conducting raid in Goodrical Forest Range, near Injappara Hills, it was noticed that accused Nos.1 to 6 were engaged in cultivating ganja plants by clearing around 4 Acres of reserve forest, without any authority. They were found in possession of arms and ammunition, and also explosive substances. Accused Nos.1 to 6 attempted to commit murder of PW1, by firing at him with a country gun. Accused Nos.1 to 3 were arrested from the spot, and others escaped from the clutches of the forest officials.
4. Initially OR No.6 of 1995 was registered against the accused under the Kerala Forest Act, and subsequently, Crime No.3/95 of Gavi Police Station was registered against them for the offences committed by them under the NDPS Act, Indian Arms Act , Explosive Substances Act and also under Indian Penal Code .
5. Since A6 was absconding, case against him was split up and refiled. On committal, accused Nos. 1 to 5 appeared before the trial court, charge was framed against them under Section 20 (a) of the NDPS Act, Section 25(1)(a) of the Indian Arms Act , Section 4 (b) of the Explosive Substances and Section 307 read with Section 34 of IPC , to which all of them pleaded not guilty, and claimed to be tried. Thereupon, prosecution examined PWs 1 to 11, marked Exts.P1 to P12, and identified MOs 1 to 8. On closure of prosecution evidence, the accused were questioned under Section 313 of Cr.P.C. They denied all the incriminating materials brought out in evidence, and the 1st accused stated that, during Sabarimala season, he was running a tea shop at Uppupara, and as he refused to pay money to the forest officials as demanded by them, there occurred some exchange of words, and due to that reason, accused Nos.1 to 3 were taken into custody by forest officials, and a false case was foisted against them. 6. On appreciating the facts, evidence and on hearing the arguments put forward from either side, learned trial court found that prosecution failed to prove the guilt of A4 and A5 beyond reasonable doubt, and they were acquitted of all the offences charged against them. But it was found that prosecution succeeded in proving the guilt of A1 to A3 under (a)(i) of the NDPS Act and (b) of the Explosive Substances Act , and each of them was convicted and sentenced to undergo rigorous imprisonment for three years and fine of Rs.35,000/- with a default sentence of rigorous imprisonment for three months under (a)(i) of the NDPS Act, and rigorous imprisonment for two years and fine of Rs.10,000/- with a default sentence of rigorous imprisonment for 45 days under (b) of the . They were acquitted of all other offences charged against them. Challenging their conviction and sentence, under (a)(i) of the NDPS Act and (b) of the , A1 to A3 preferred this appeal.
7. Heard learned counsel for the appellants and learned counsel for the respondent-State.
8. Learned counsel for the appellants would contend that the forest officials blatantly violated the statutory mandates for search and seizure under the NDPS Act. PW1 was not an empowered officer under Section 42 of the NDPS Act to conduct search or seizure. PW1 was not present in the raiding team, and he simply c
