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2023 Supreme(Online)(KER) 8735
HIGH COURT OF KERALA
P.V.KUNHIKRISHNAN, J
SHIBU J. – Appellant
Versus
STATE OF KERALA – Respondent
Crl.MC 8455 2023
M.J.SANTHOSH, RENJITH B.MARAR, ANTONY PAUL, LAKSHMI.N.KAIMAL, ABHIJITH SREEKUMAR, ARUN POOMULLI, ANAND REMESH, SMT.SREEJA.V
The court affirmed that accused individuals have a right to obtain copies of public documents like the seizure mahazar to prepare their defense.
Headnote:
Narcotics - Possession - NDPS Act Section 8(C), 20(b)(ii)(C), 37; CrPC Section 102, 207 - The court held that a certified copy of the seizure mahazar is a public document, and the accused is entitled to it to effectively prepare a defense for bail application.
Fact of the Case:
The petitioner, facing serious charges under the NDPS Act for possession of narcotics, sought a certified copy of the seizure mahazar to assist with a bail application. The lower court denied the request.
Finding of the Court:
The court found that the seizure mahazar is a public document and the accused has a right to obtain a copy to prepare his defense effectively, especially given the serious nature of the allegations.
Issues: Whether the accused is entitled to a copy of the seizure mahazar and whether the denial by the lower court was valid.
Ratio Decidendi: An accused is entitled to access public documents, including the seizure mahazar, to prepare a defense in a bail application, especially when facing serious allegations.
Final Decision: The court allowed the petition and ordered the issuance of the seizure mahazar to the petitioner.
ORDER
Petitioner is arrayed as the 4th accused in Crime No.19/2023 of Excise Enforcement And Anti-Narcotic Special Squad. The above case is registered alleging offences punishable under Section 8 (C), 22(C), 20(b) (ii)(C) of the Narcotic Drugs And Psychotropic Substances Act, 1985 (for short 'NDPS Act').
2. The prosecution case is that, on 09.07.2023, the petitioner along with other accused was found in possession of 155.480 kgs of ganja and 70.71 grams of MDMA.
3. The petitioner filed an application as Crl.M.P.No.5181/2023 for the certified copy of the seizure mahazar in Crime No.19/2023 of Excise Enforcement And Anti-Narcotic Special Squad before the Additional Sessions Court-I, Thiruvananthapuram. But the said application was dismissed as per Annexure A1 order. Aggrieved by the same, this Criminal Miscellaneous Case is filed.
4. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor.
5. Counsel appearing for the petitioner submitted that the petitioner is facing a serious allegation of possessing commercial quantity of ganja and MDMA. In the light of the rigour under Section 37 of the NDPS Act, the accused is entitled for bail only if he could establish that he is not guilty. For the purpose of understanding the case, it is submitted that a copy of the seizure mahazar is necessary. It is also submitted by the counsel that the seizure mahazar is prepared by the public servant during the course of discharging his duty and the same is a public document falling under Section 74 (1)(iii) of the Indian Evidence Act . Therefore, it is submitted that the denial of a copy of the seizure mahazar to the petitioner by the lower court is illegal. The learned Public Prosecutor supported Annexure A1 order.
6. This Court considered the contentions of the petitioner and the Public Prosecutor. First Information Report and the seizure mahazar prepared by the police officers and other officials are contemporaneous records and the same are to be forwarded to the jurisdictional magistrate immediately. Section 102 (1) of Cr.P.C says that, any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. Section 102 (3) says that, every police officer acting under Sub-Section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be, conveniently transported to the Court or where there is difficulty in securing proper accommodation for the custody of such property, or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigation, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same. Therefore, it is clear that, if any property is seized by a police officer, it should be reported to the learned Magistrate forthwith. Admittedly, the seizure mahazar in this case is forwarded to the court.
7. In Youth Bar Association of India v.
Union of India and Others [ 2016 (4) KHC 838 ] the Apex Court observed that, an accused is entitled to get a copy of the First Information Report at an earlier stage than as prescribed under Section 207 of the Cr.P.C. It will be better to extract the relevant portion of the above judgment:
“12. Having heard learned counsel for the parties, we think it appropriate to record the requisite conclusions and, thereafter, proceed to issue the directions:
(a) An accused is entitled to get a copy of the First Information Report at an earlier stage than as prescribed under S.207 of the CrPC.
(b) An accused who has reasons to suspect that he has been roped in a criminal case and his name may be finding place in a First Information Report can submit an application through his
