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2021 Supreme(Online)(KER) 25724
HIGH COURT OF KERALA
R. NARAYANA PISHARADI, J
KAJA HUSSAIN, – Appellant
Versus
STATE OF KERALA, – Respondent
CRL.A/6/2020
NIREESH MATHEW
Defects in the investigation do not necessarily invalidate trial outcomes, and compliance with search provisions is context-dependent, particularly pertaining to searches of vehicles versus personal searches.
Headnote:
Narcotics - Criminal Conviction - NDPS Act Section List - The court assessed the application of Sections 20(b)(ii)(B) and 20(b)(ii)(C) of the NDPS Act, interpreting weight regulations and compliance with search provisions while ultimately modifying the conviction due to evidentiary shortcomings regarding quantity.
Fact of the Case:
The appellant was convicted for possessing ganja without a valid license. During a police search of his scooter, ganja was found, leading to his arrest. The case was investigated and charges were filed based on these findings.
Issues: 1. Illegality in investigation due to the investigator's authority. 2. Non-compliance with Section 50(1) of the NDPS Act. 3. Discrepancies in the weight of the seized narcotics.
Ratio Decidendi: Defects in investigation do not invalidate trial or conviction if no miscarriage of justice is proven. Adherence to Section 50(1) is mandatory but inapplicable if contraband is seized from a vehicle and not the person.
Final Decision: The conviction was altered to Section 20(b)(ii)(B) and the sentence reduced to six years with a fine of Rs. 50,000.
JUDGMENT
The appellant is the sole accused in the case S.C.No.7/2018 on the file of the Additional Sessions Court-II, Palakkad.
2. The appellant stands convicted and sentenced for committing an offence punishable under Section 20 (b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act , 1985 (for short 'the Act').
3. The prosecution case, in short, is as follows: On 23.10.2017, the Circle Inspector of Police (PW2), Ottappalam was conducting patrolling duty with police party. At about 16.15 hours, when he reached the place Erakottiri, he saw the accused coming by riding the scooter bearing registration number KL-52E-0164. A sack was seen placed on the platform between the handle and the seat of the scooter. PW2 intercepted the scooter and questioned the accused with regard to the contents of the sack. The accused answered that the sack contained cow dung powder. On suspicion, PW2 got the sack opened by the accused in the presence of witnesses. The sack contained nine brown colour paper packets. PW2 got the packets also opened by the accused. The packets contained ganja. PW2 arrested the accused at 16.30 hours. He conducted search of the body of the accused after complying with necessary formalities. No contraband substance was found on searching the body of the accused. PW2 put the entire ganja in a plastic sack and weighed it by using an electronic weighing machine.It had a weight of 20.190 kilograms. PW2 took three samples from the ganja, each sample weighing 25 grams and packed and sealed the sample packets. He prepared Ext.P1 mahazar and seized all the articles. He returned to the Ottappalam police station and registered Ext.P6 F.I.R.
4. The investigation of the case was conducted by PW13, who was the Circle Inspector of Pattambi. After completing the investigation, he filed final report against the accused for the offence punishable under Section 20 (b)(ii)(C) of the Act.
5. The trial court framed charge against the accused for the offence punishable under Section 20 (b)(ii)(C) of the Act. The appellant/accused pleaded not guilty and he claimed to be tried.
6. The prosecution examined the witnesses PW1 to PW13 and marked Exts.P1 to P23 documents and MO1 to MO5 material objects. No oral evidence was adduced by the accused but Exts.D1 to D3 were marked on his side.
7. The trial court found the accused guilty of the offence punishable under Section 20 (b)(ii)(C) of the Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of one year. Conviction entered against and the sentence imposed on him by the trial court are challenged in this appeal.
8. Heard learned counsel for the appellant and the learned Public Prosecutor and perused the records.
9. The prosecution has examined thirteen witnesses. PW1 is an autorickshaw driver who had witnessed seizure of ganja from the accused. PW2 is the Circle Inspector who detected the offence. PW3 is the Junior Sub Inspector of Ottapalam police station who had brought the weighing machine and the seal of S.H.O to the spot of the occurrence in compliance with the direction given by PW2. PW4 is only an attestor to the scene mahazar. PW5 is the owner of the shop from where the police had obtained the electronic weighing machine. PW6 is the photographer who had taken photographs of the sampling process made before the Magistrate. PW7 is a civil police officer who attested the mahazar prepared by the investigating officer for seizing the documents found in the scooter. PW8 is the registered owner of the scooter. PW9 is the person to whom PW8 had entrusted the scooter for selling and who sold the vehicle to the accused. PW10 is a civil police officer who had attested the mahazar prepared by the investigating officer for seizing the extract of the general diary for the date 23.10.2017. PW11 is the civil police officer who had
