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IN THE HIGH COURT OF KERALA AT ERNAKULAM
R. Narayana Pisharadi, J.
Faijas - Appellants
Vs.
State of Kerala - Respondent
Crl. A. No. 353 of 2015 (A)
Decided On : 03-08-2020
Narcotic Drugs and Psychotropic Substances Act - Conviction under Sections 22(b) and 22(c) - [POSSESSION] - [Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 22(b) and 22(c)] - The court discussed the provisions of Section 42 and Section 50(1) of the Act, emphasizing the requirements for search, seizure, and arrest without warrant or authorization, and the mandatory compliance for informing the suspect about the right to be searched in the presence of a gazetted officer or a Magistrate. The court also highlighted the significance of unexplained delay in producing seized substances before the court, and the necessity of preserving and sealing the seized substances to avoid tampering. The court's decision was influenced by the lack of compliance with the procedural requirements, leading to doubt about the manner of seizure, resulting in the acquittal of the accused.
Fact of the Case:
The accused was found in possession of narcotic drugs and psychotropic substances inside the compound of a government hospital. The prosecution alleged that the accused was in possession of 17 ampoules of Buprenorphine, 12 ampoules of Diazepam injection, syringes, needles, and sterile water. The trial court convicted the accused under Sections 22(b) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985.
Finding of the Court:
The court found that the accused was not guilty of the offences under Sections 22(b) and 22(c) of the Act due to the lack of compliance with the procedural requirements for search, seizure, and arrest, and the unexplained delay in producing the seized substances before the court. The court emphasized the necessity of preserving and sealing the seized substances to avoid tampering, and the failure to provide evidence regarding the nature of the seal used by the detecting officer for sealing the sample packets, creating doubt about the manner of seizure.
Issues: The issues raised by the appellant included the non-compliance with the requirements under Section 42 of the Act, the lack of proper compliance with the provision contained under Section 50(1) of the Act, and the unexplained delay in producing the seized substances before the court.
Ratio Decidendi: The court's decision was influenced by the lack of compliance with the procedural requirements for search, seizure, and arrest, and the unexplained delay in producing the seized substances before the court. The court emphasized the necessity of preserving and sealing the seized substances to avoid tampering, and the failure to provide evidence regarding the nature of the seal used by the detecting officer for sealing the sample packets, creating doubt about the manner of seizure.
Final Decision: The appeal was allowed, and the order of conviction and sentence passed against the appellant/accused under Sections 22(b) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act was set aside. The appellant/accused was found not guilty of the aforesaid offences and was acquitted. The court directed the release of the appellant/accused forthwith, if his detention in jail was not required in connection with any other case.
JUDGMENT :
R. Narayana Pisharadi, J.
1. The appellant is the accused in the case S.C. No. 92/2012 on the file of the Court of the Special Judge (NDPS Act Cases), Vatakara.
2. The appellant stands convicted and sentenced for committing the offences punishable under Sections 22(b) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act').
3. The prosecution case is that, on 15.11.2011, at about 12.45 hours, inside the compound of the Government Hospital at Sulthan Bathery, the Sub Inspector (PW3) of Sulthan Bathery police station found the appellant/accused in possession of 17 ampoules of Buprenorphine and 12 ampoules of Diazepam injection along with some syringes and needles. PW3 seized the contraband substances as per Ext. P1 mahazar.
4. The case against the accused was registered as Crime No. 872/2011 of Sulthan Bathery police station. The initial investigation of the case was conducted by PW6 Circle Inspector. After completing the investigation of the case, PW7 Circle Inspector filed final report against the accused for the offence punishable under Section 22(b) of the Act.
5. The trial court framed charge against the accused for the offences punishable under Sections 22(b) and 22(c) of the Act. The accused pleaded not guilty to the offences.
6. The prosecution examined PW1 to PW7 and marked Exts. P1 to P12 documents and MO1 to MO7 material objects. No evidence was adduced by the accused.
7. The trial court found the accused guilty of the offences punishable under Sections 22(b) and 22(c) of the Act and convicted him thereunder. The trial court sentenced him to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 30,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of three months for the offence under Section 22(b) of the Act and 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 for the offence under Section 22(c) of the Act and directed that the substantive sentences of imprisonment shall run concurrently. This appeal is filed by the accused challenging the conviction and sentence entered against him by the trial court.
8. The appeal was preferred by the accused from jail and an advocate was appointed by the Court as State Brief for him. Subsequently, Advocate. Sri. M.T. Balan has filed vakalath for the appellant. Heard learned counsel for the appellant and also the learned Public Prosecutor and perused the records.
9. The prosecution examined seven witnesses. PW1 is the independent witness examined by the prosecution to prove the occurrence. PW2 is only an attestor to Ext. P2 scene mahazar. PW3 is the Sub Inspector who detected the offence. PW4 was the Senior Civil Police Officer who was in the police party led by PW3. PW5 is the Village Officer who prepared and issued Ext. P10 site plan. PW6 is the Circle Inspector who initially conducted the investigation of the case. PW7 is the Circle Inspector who completed the investigation of the case and filed final report against the accused.
10. The summary of the evidence of PW3 Sub Inspector, regarding the search and seizure, is as follows: On 15.11.2011, at 12.30 hours, while he was in the police station, he received information over phone that a person was standing inside the compound of the Taluk Hospital, Sulthan Bathery with a yellow colour cover containing narcotic drugs. PW3 prepared Ext. P3 report under Section 42 of the Act and sent it to the Circle Inspector. He entered the information in the general diary and proceeded with police party and reached the compound of the Taluk Hospital at 12.45 hours. He saw a person (identified by PW3 as the accused standing in the dock) carrying a plastic cover trying to run away from there. PW3 obstructed him and ascertained his name. PW3 told the accused, in the presence of witnesses, that he
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