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HIGH COURT OF KERALA
MARY JOSEPH, J
MUHAMMED JABIR – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A 4 2021
Narcotics - Contraband - NDPS Act Section List - The court examined compliance with the procedural safeguards provided under the NDPS Act, particularly Sections 50 and 42, and concluded that the prosecution failed to establish the legality of the search and the admissibility of evidence, leading to the acquittal of the accused.
Fact of the Case:
The accused was caught carrying 250 gms of MDMA and was convicted under Section 22(c) of the NDPS Act. His conviction was appealed on grounds of procedural irregularities in the search and seizure processes.
Issues: Whether the search and seizure of contraband from the accused were conducted in compliance with the NDPS Act and whether the accused's rights were violated during the arrest and trial process.
Ratio Decidendi: The court established that the prosecution failed to demonstrate that the search complied with statutory requirements under Section 50 of the NDPS Act and thus failed to prove the accused's possession of illegal narcotics beyond a reasonable doubt.
Final Decision: The appeal is allowed, and the accused is acquitted of the charges under Section 22(c) NDPS Act.
JUDGMENT
This appeal is originated from a judgment passed by Additional Sessions Judge-IV, Thiruvananthapuram on 16.12.2020 in SC No.556/2019. The appellant is the sole accused in the above case. He was found guilty for an offence punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘NDPS Act’) and was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of `1,00,000/- and to undergo rigorous imprisonment for a further period of one year in default of payment of fine. Set off was allowed under Section 428 Cr.P.C for the period of custody from 05.10.2018 till 16.12.2020. Aggrieved by the finding of guilt of the accused and the orders of conviction and sentence passed against, he has approached this Court in the appeal on hand.
2. The conspectus of the facts of the case is as follows:-
On 05.10.2018 at 8.30 a.m. accused No.1 was found carrying 250 gms of MDMA, Ecstasy (Methylene Dioxy Methamphetamine), a psychotropic substance in a plastic cover. After recovery of it from him, he was arrested then and there. It was alleged that accused No.1 had collected the psychotropic substance worth `50,00,000/- for sale from accused No.2 under his instigation and on its basis, Crime No.2028/2018 was registered at Vanchiyoor Police Station for offences punishable under Sections 22(c) and 29 of NDPS Act. Accused No.1 was in custody since then.
3. Investigation was conducted by Assistant Commissioner of Police, Narcotic Cell, Thiruvananthapuram City and it culminated in the filing of a final report chargesheeting accused Nos.1 and 2 for commission of the offences for which the crime stands registered.
4. Final report was taken cognizance by Additional Court of Sessions, Thiruvananthapuram and a case was registered on its file as S.C No.556/2019. In the meantime, accused No.2 absconded and therefore, the case against him was split up and charge was framed only against accused No.1. Charge framed was read over and explained to him and he pleaded not guilty.
Thereupon the trial was commenced and he faced trial.
5. Prosecution examined PWs 1 to 20, marked Exts.P1 to 35 and identified MOs.1 to 13. On completion of the prosecution evidence, the accused was examined under Section 313(1)(b) of the Code of Criminal Procedure, 1973 (for short, Cr.P.C.) with reference to the incriminating circumstances brought against him during examination of the prosecution witnesses. The accused being familiar in Hindi was questioned with the help of Adv.Viswambharan V.I, who was an associate of the learned defence counsel and conversant with Hindi. Accused denied all questions with reference to the incriminating circumstances put to him. He also filed a written statement additionally as contemplated under Sub-section (5) of Section
313 Cr.P.C.
6. The learned Public Prosecutor as well as the learned defence counsel were heard under Section 232 Cr.P.C. On being convinced of non-existence of any grounds to record an order of acquittal, the accused was called upon to adduce evidence in defence. DWs 1 to 3 were examined and Exts.D1, D1(a), D2 and D2(a) were marked on the side of the accused.
7. Ext.D1 and D1(a) were nothing but contradictions brought out while cross examining PW8. Accused No.1 was found guilty of the offences under Section 21(c) NDPS Act and convicted and sentenced by judgment passed on 13.12.2019. The above judgment was challenged by the accused in Crl.
Appeal No.1531 of 2019. Appeal was allowed and the judgment was set aside by this Court and the case was remanded to the trial court for re-consideration.
8. In paragraph 23 of the judgment, it was stated that MDMA is item No.80 in the list of Psychotropic substances scheduled under the NDPS Act and the chemical name of it is “(+)-N, alpha-dimethyl-3, 4-(methylene-dioxy) phenethylamine”. In paragraph 24 of the judgment, it was stated that MDMA is serial No.134 in the Notification issued by the Central Government on 19.10.2001 and it’s chemical
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