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2022 Supreme(Online)(KER) 38715
HIGH COURT OF KERALA
ZIYAD RAHMAN A.A., J
RAJU @ WILSON – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A NO. 2466 OF 2006 | SC 11/2006
For the Appellants/Petitioners: GEORGE MATHEW, PRAVEEN S., ELSA DENNY, PINDIS, M.D.SASIKUMARAN, SUNIL KUMAR A.G, DIPU JAMES, MATHEW K.T, GEORGE K.V, STEPHY K REGI
For the Respondents: SUDHEER GOPALAKRISHNAN
Failure of prosecution to establish guilt and procedural compliance leads to acquittal.
Headnote:(A) Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 - Section 20(a)(1) - The appellant was convicted for cultivating ganja but raised several discrepancies including failure to comply with statutory requirements for arrests under Section 42 - The absence of recovery of incriminating evidence creates reasonable doubt about the prosecution's case. (Paras 6, 8, 14, 15)
(B) Conviction and Sentencing - Compliance with statutory provisions is imperative for sustaining a conviction - The prosecution did not establish the accused's possession and ownership of the property from which ganja was allegedly seized - In view of the discrepancies and non-production of essential evidence, the conviction cannot stand. (Paras 6, 9, 10, 14)
Facts of the case:
The case arose from the arrest of the appellant while allegedly cultivating ganja on his property, following a police inquiry. Evidence included testimonies and documents phrased through witnesses claiming ownership.
Findings of Court:
The court found that the prosecution failed to establish the guilt of the accused, leading to the conclusion that the case against him was unproven.
Issues: Key issues included the establishment of possession and the procedural compliance regarding the arrest and search.
Ratio Decidendi: The court established that discrepancies in the arrest memo and lack of supporting evidence made the prosecution's case unreliable.
Result: The appeal is allowed; conviction and sentence set aside, appellant acquitted.
| Table of Content |
|---|
| 1. overview of the case initiation and prosecution's narrative. (Para 1 , 2 , 3) |
| 2. description of court proceedings and the appellant's representation. (Para 4 , 5) |
| 3. conclusion drawn from analysis resulting in acquittal. (Para 6 , 13 , 16) |
| 4. court's analysis of evidence and procedural compliance. (Para 7 , 8 , 9 , 12 , 14 , 15) |
| 5. arguments regarding lack of evidence and procedural failures. (Para 10 , 11) |
JUDGMENT
The appellant herein is the accused in S.C (NDPS) 11 of 2006 on the file of the Special Judge for NDPS Act cases, Thodupuzha. The aforesaid case arises from Crime No.430 of 2005 of Kattappana Police Station, which was registered against the appellant/accused for the offences punishable under Section 20 (a) (1) of Narcotic Drugs and Psychotropic Substances (NDPS) Act.
2. The prosecution case in brief is as follows:
On 17.05.2005, upon getting information regarding the cultivation of ganja in the property of the appellant, the Sub Inspector of Police, Kattappana along with his police party conducted an inspection in the premises of the appellant at 12.00 noon on 17.12.2005. During the course of the said inspection, it was found that the appellant was cultivating 12 plants of ganja in his property and another four plants in gunny bags placed in his property. At the relevant time the appellant was found watering the said plants. On the basis of the same, the appellant was arrested, articles seized and out of the plants seized three plants were taken as sample which were properly sealed. The remaining plants were destroyed by burning. Later, the appellant was brought to the police station and crime was registered. The appellant was produced before the learned Magistrate. On the basis of the same, an investigation was conducted by the police and upon completion thereof, final report was submitted before the Court concerned and the trial conducted.
3. In support of prosecution case, PWs 1 to 13 were examined, Exts.P1 to P28 were marked and the sample plants seized from the premises were marked as MO1 series. After closure of prosecution case, the appellant was examined under Section 313 Cr.P.C. and the incriminating materials brought out during the course of trial were put to him. He denied the same and pleaded innocence. In support of his case, the appellant examined DW1.
4. After appreciating the materials available on record, the Sessions Court arrived at the conclusion that the appellant is guilty of offence punishable under Section 20 (a) (1) of NDPS Act. Consequently, he was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.25,000/- with a default sentence to undergo rigorous imprisonment for six months. This appeal is filed by the appellant challenging the aforesaid order of conviction and sentence.
5. Heard Sri.S.Praveen, learned counsel appearing for the appellant and Sri.Sudheer Gopalakrishnan, learned Public Prosecutor appearing for the State.
6. The learned counsel for the appellant would contend that the prosecution failed to establish the guilt of the accused and the mandatory stipulations contained in NDPS Act has not been followed. It is pointed out that, even though a report as contemplated under Section 42 of NDPS Act has been marked as Ext.P2, there is nothing on record to indicate that the same was forwarded to the superior officer of PW1. In the absence of the same, the entire prosecution is vitiated as there is no proper compliance of the statutory stipulation. It was also pointed out that, the prosecution failed to prove the possession of the property by the appellant, from which the articles were seized. In support of the said contention, learned counsel pointed out the discrepancy in the door number of the building which is situated in the aforesaid property. The property from which the articles were seized were also not properly identified by the Village Officer as well, contends the learned counsel. The presence of the appellant in the premises and the
