Allowed

Jayakumar v. State of Kerala

Kerala HC24 Feb 2012CRL.A/2164/2011

Case brief

AI extract

What is this about?

Single judge upheld appeal in NDPS case, acquitting appellant due to flawed investigation, discrepancies in witness statements, and failure to prove the accused was the driver or complied with Section 57 Cr.P.C.

What did the court decide?

Conviction and sentence set aside; appellant acquitted. Custody to be released unless necessary for other cases; fine refunded if paid.

Jayakumar Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.BHAVADASAN

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FRIDAY, THE 24TH DAY OF FEBRUARY 2012/5TH PHALGUNA 1933

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CRL.A.No. 2164 of 2011 (A)

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-------------------------IN SC.(NDPS) NO.7/2010 of SPL. COURT (NDPS ACT CASES), THODUPUZHA

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APPELLANT/ACCUSED:

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JAYAKUMAR, AGED 36 YEARS, S/O.BALAKRISHNAN, PUTHENPURACKAL HOUSE, NR CITY KARA, RAJAKKADU VILLAGE, IDUKKI DISTRICT.

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BY ADVS.SRI.SOJAN MICHEAL SRI.NIREESH MATHEW

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RESPONDENT/COMPLAINANT:

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1 STATE OF KERALA, REP. BY THE CIRCLE INSPECTOR OF EXCISE, MUNNAR, IDUKKI DISTRICT, REP. BY HE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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R1 BY PUBLIC PROSECUTOR, SMT. SEENA RAMAKRISHNAN

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 24-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DST

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P.BHAVADASAN, J.

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Crl. Appeal No.2164 of 2011

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Dated this the 24^th day of February 2012

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Judgment

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The accused in this case was prosecuted for the offence punishable under Section 20(b)(ii)B read with Section 8(c) of the N.D.P.S.Act. He was found guilty and was therefore, convicted and sentenced to suffer rigorous imprisonment for six years and to pay a fine of Rs.60,000/in default of payment of which he has to suffer rigorous imprisonment for a further period of six months.

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The prosecution case is that on 7.1.2008, when the Excise Circle Inspector, Narcotic Enforcemnt Squad, Adimali and party were on patrol duty and were checking the vehicles on Neryamangalam-Panamkutty Road, they happened to come across a Tata Sumo Van bearing Registration No.KL-5/N-2746, which was intercepted by them. On seeing the Excise party led by PW3 - Circle Inspector, the driver of the vehicle fled from

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the place. PW3 would say that on a search conducted in the vehicle, 19 kgs of dried ganja kept in 19 plastic covers in a specially made secret chamber on the ceiling of the vehicle were seized from the vehicle. PW3 speaks about the verification of the articles and the sampling done by him. MO1 and 2 are the respective packets and the samples. He prepared Ext.P3 mahazar. Thereafter, Ext.P4 crime was registered. PW3 would say that the report forwarded by him under Section 57 Cr.P.C. is Ext.P5. The investigation was conducted by PW5. He recorded the statement of witnesses. He obtained the RC book of the vehicle which is marked as Ext.P8. Further investigation in the matter was carried out by PW7. He too claims to have recorded the statement of witnesses. He prepared Ext.P10 scene mahazar. He says that he caused to issue Ext.P11 notice in the address shown in Ext.P6 which was returned with the endorsement "no such address". PW7 completed the investigation and laid charge before court.

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Cr.Appeal 2164/11

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The court below took cognizance of the offence. After hearing the prosecution and the accused, charge was framed under Section 20(b)(ii)B read with Section 8(c) of the NDPS Act. To the charge, the accused pleaded not guilty and claimed to be tried. Therefore, the prosecution examined PWs 1 to 8 and had Exts.P1 to P13 (a) marked. MOs 1 and 2 were identified and marked. After close of the prosecution evidence, the accused was questioned under Section 313 of Cr.P.C. He denied all incriminating circumstances brought out in evidence against him and maintained that he is innocent. He pointed out that at the relevant time, he was not in possession of the vehicle in question and it had been transferred to a third party as per Ext.P6 agreement. He would say that he had nothing to do with the vehicle and he has not committed any illegal act. DW1 was examined in support of the defence case.

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The lower court, on a consideration of the materials before it, came to a conclusion that the offence

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has been made out and accordingly convicted and sentenced him as already mentioned.

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The learned counsel for the appellant pointed out that the court below has misdirected itself both on facts and in law and therefore, the conviction and sentence are clearly unsustainable. The learned counsel pointed out that the accused was sought to be prosecuted solely on the basis of Ext.P11 returned notice. There was no investigation conducted in that regard either by the Investigating Officer namely PW5 or by PW7 to find out whether the endorsement was true. It is also pointed out that on going through Ext.P5, it can be seen tht the claim made by PW3 that he had filed the report under Section 57 Cr.PC. is clearly false. There is no compliance with Section 57 at all. In short, according to the learned counsel, the prosecution has not been able to establish the case against the accused. The learned counsel also pointed out that the definite case of the accused was that he had transferred the vehicle to a third party as per Ext.P6. PW7

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would say that they have not conducted any investigation in that regard except for acting on the basis of the endorsement in the cover that the "addressee not known". The learned counsel also drew attention to the finding of the court below that it was established beyond doubt that the accused was the driver of the vehicle, a case which even the prosecution did not have. The prosecution sought to prosecute the accused only on the basis that he was the registered owner of the vehicle. Therefore, he ought to have been prosecuted only under Section 25 and not under Section Section 20(b)(ii)B of the NDPS Act.

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The learned Public Prosecutor on the other hand, contended that the court below has considered the evidence in considerable detail and has come to the conclsuion that the accused is guilty of the offence alleged against him. According to the learned Public Prosecutor, no grounds are warranted to interfere with the order passed by the court below.

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At the outset itself, it is to be noticed that it is extremely difficult to uphold the contention raised by the learned Public Prosecutor. The evidence of PW3 before court is to the effect that the detection was in the early hours of 7.3.2008 while in the O.R., the date is shown as 7.1.2008. This discrepancy was not taken note of by the court below. This obviously has a bearing on the issue involved in this case. It could be treated as a clinching evidence.

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As rightly pointed out by the learned counsel for the appellant, the only basis on which the prosecution has initiated proceedings against the accused is Ext.P11 notice sent in the address contained in Ext.P6 which was returned with the endorsement "addressee not found".

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It is true that the RC particulars and other records stand in the name of the accused. The case of the accused was that the vehicle had already been transferred in favour of a third party as evident from Ext.P6. He has adduced evidence in that regard also. His further case is

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that he had a hypothecation arrangement for the vehicle and so, the RC particulars of the vehicle could not be got corrected.

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It is surprising to note that except for an endorsement on Ext.P11, which is the basis for prosecution of the accused, on Ext.P11, there is absolutely no material to show that the accused was invovled in the illegal act in question. It is further shocking to note that the Investigating Officer did not feel it necessary to find out whether the alleged transfer of the vehicle was correct. This court perused the endorsement on Ext.P11 which is not clear at all. Further, the evidence of PW5 is to the effect that he does not know who actually produced Ext.P6 and that no seizure mahazar was prepared.

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Even though the prosecution produced Ext.P5 to show that Section 57 has been complied with, it is open to serious doubts in view of the fact that Ext.P5 is only a carbon copy in which the endorsement is made by the Assistant Excise Commisisioner as 'received on

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7.1.2008'. One fails to understand how in an office copy, an endorsement could have been made and there is no attempt from the side of the prosecution to call for the original of the same from the office of the Assistant Excise Commissioner. Therefore, the compliance with Section 57 is also open to serious doubts.

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As rightly pointed out by the learned counsel for the appellant, there is no case for the prosecution that the accused was the driver of the vehicle at the relevant time. Of course, the prosecution can take the aid of Section 25 of N.D.P.S.Act, to prosecute the accused. Till date, the person who had driven the vehicle has not been traced nor his identity established. As already noticed, the prosecution has no case that the vehicle was driven by the accused at the relevant time. The court below was not justified in coming to the conclusion that the accused was the driver of the vehicle at the relevant time. The applicability of Section 25 does not assume much importance in the light of the state of affairs and the

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evidence adduced by the prosecution. There is no proper investigation of the case at all. The prosecution of the accused is solely based on an endorsement made by the postal authority.

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For the above reasons, this appeal is allowed. The conviction and sentence passed by the court below are set aside and the appellant is acquitted of the offence under Section 20(b)(ii)B read with S.8(c) of the N.D.P.S.Act. If the appellant is in custody, he shall be released forthwith unless his custody is necessary in any other case. If the fine amount is already paid by the appellant, the same shall be refunded to him.

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P.Bhavadasan, Judge

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sta

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Jayakumar v. State of Kerala

Case brief

What is this about?

What did the court decide?

Jayakumar v. State of Kerala

Case brief

What is this about?

What did the court decide?

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