Back
2022 Supreme(Online)(KER) 19237
HIGH COURT OF KERALA
C.S. Sudha, J
MANUMAYASEELAN – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A/2130/2007
ADV SUNNY MATHEW, ADV SMT.MAYA M.N, PUBLIC PROSECUTOR
Section 50's protections apply to personal searches only; compliance with Section 43 suffices when contraband is seized from public places.
Headnote:
Narcotics - Conviction Appeal - Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 20(b)(ii)(B), 42, 43, 50 - The court confirmed the conviction on grounds of possession and adherence to procedures outlined in Section 43 instead of Section 50 due to circumstances of arrest.
Fact of the Case:
The appellant was convicted under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act for possessing 1.1 kg of ganja without authorization near a bus stand. He challenged the conviction, citing procedural violations.
Issues: Whether the conviction and sentence against the accused were sustainable in light of alleged procedural violations under the Narcotic Drugs and Psychotropic Substances Act.
Ratio Decidendi: The court determined that Section 50's requirements were not applicable since the contraband was found in a polythene bag and not directly on the person, affirming that Section 43 governs seizures in public places.
Final Decision: The appeal was dismissed, and the conviction and sentence were upheld.
J U D G M E N T
In this appeal filed under Section 374(2) Cr.P.C, the appellant, the accused in S.C.No.1/2007 on the file of the Special Court (NDPS Cases), Vadakara, challenges the conviction and sentence passed against him for the offence punishable under Section 20 (b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act).
2. The prosecution case is that on 05/03/2006 at 04.30 p.m, the accused without any authority was found in position of 1.10 kgs of ganja near the comfort station of the new bus stand, Thalassery. Hence, the accused is alleged to have committed the offence punishable under Section 20 (b)(ii)(B)
of the Act.
3. PW1, the then Sub Inspector, Thalassery Police Station is the detecting officer who registered the crime, that is, Crime No.84/2006, Thalassery Police Station and lodged Ext.P6 FIR. PW6, the then Circle Inspector, Thalassery, conducted the investigation and submitted the final report alleging commission of the aforesaid offence.
4. On appearance of the accused before the court below, he was furnished with copies of all the prosecution records. On 03/05/2007, the court below framed a charge under Section 20 (b)(ii)(B) of the Act, which was read over and explained to the accused, to which he pleaded not guilty. The prosecution examined PWs.1 to 6 and got marked Exts.P1 to P12 and MO1 series to MO3 in support of the case.
5. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C with regard to the incriminating circumstances appearing against him in the evidence of the prosecution. He denied those circumstances and maintained his innocence.
6. As the court below did not find it a fit case to acquit the accused under Section 232 Cr.P.C, the accused was asked to enter on his defence and adduce evidence in support thereof. The accused offered himself as a witness and hence he was examined as DW1. One another witness was examined as DW2.
7. On a consideration of the oral and documentary evidence and after hearing both sides, the court below by the impugned judgment convicted and sentenced the accused to rigorous imprisonment for a term of 3 years and to a fine of Rs.10,000/- and in default of the payment of fine to undergo rigorous imprisonment for a period of 6 months for the offence punishable under Section 20 (b)(ii)(B) of the Act. Eligible set off under section 428 Cr.P.C has also been allowed. It is this judgment which is assailed in this appeal by the appellant/accused.
8. In the appeal memorandum it is alleged that there is violation of the mandatory provisions of Section 50 of the Act and that the court below without properly appreciating the oral and documentary evidence has passed the impugned judgment and hence the same is liable to be reversed.
9. The only point that arises for consideration in this appeal is whether the conviction entered and the sentence passed against the accused by the court below are sustainable or not.
10. Heard Sri.Sunny Mathew, the learned counsel for the appellant and Ms.M.N.Maya, the leaned Senior Public Prosecutor.
11. Before I examine the tenability of the arguments advanced on behalf of the appellant/accused, I briefly refer to the oral and documentary evidence adduced by the prosecution, before the court below. PW1, the detecting officer in Ext.P6 FIS and FIR has recorded that on the date of the incident, he along with party were on law and order patrol duty. While so, he received secret information that a person is engaged in the sale of ganja in the vicinity of the comfort station situated in the new bus stand, Thalassery. He then reduced the information into writing, forwarded it to his superior officer, and as per the latter's instructions, proceeded to the place of occurrence. When the police party reached the place of occurrence, he saw the accused standing near the comfort station with a white polythene cover in his hand. When he approached the accused, the latter became perplexed and attempted
