Special Appeal allowed. The High Court set aside the conviction under the NDPS Act. The trial court failed to consider contradictions in prosecution evidence regarding the seizure of ganja, timing discrepancies, and illogical witness signatures in the seizure memo.
Criminal Appeal allowed, conviction set aside, appellant set at liberty with bail bond cancelled.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
FRIDAY, THE 15TH DAY OF NOVEMBER 2013/24TH KARTHIKA, 1935
CRL.A.No. 1208 of 2008 (A)
AGAINST THE ORDER/JUDGMENT IN SC 7/2007 of SPL. COURT (NDPS ACT CASES), THODUPUZHA DATED 18-06-2008
APPELLANT: ACCUSED :
GEORGE, S/O. ULAHANNAN,
PUTHENPURACKAL, THEKKUMTHANDU KARA, VATHIKKUDY VILLAGE, UDUMBANCHOLA TALUK.
BY ADV. SRI.S.RAJEEV
RESPONDENT: COMPLAINANT :
STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. (CRIME No.9 OF 2003 OF NES, ADIMALY).
BY PUBLIC PROSECUTOR SRI.N.SURESH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V.K.MOHANAN, J.
Crl.A.No.1208 of 2008
Dated this the 15th day of November, 2013
JUDGMENT
The above appeal is directed against the judgment dated
18/6/2008 in S.C.(NDPS) No.7 of 2007 of the court of the Special Judge for NDPS Act Cases, Thodupuzha, at the instance of the first accused in the above Sessions Case since he is aggrieved by the conviction and sentence imposed on him for the offence under Section 20(b)(ii)B of the NDPS Act.
Adimali and when the party reached National High Way-49 at Adimali and when they proceeded towards Eastern diversion, in front of Fathima Church, Koobanpara road leading to Vijaya Metal Crusher, they found the appellant, who is the first accused coming to the N.H.-49 road, carrying a paper packet and on seeing the Excise Party he attempted to go back, but
he was intercepted and he was questioned. But no proper
Crl.A.No.1208 of 2008
:-2-:
answer was given. So, according to PW.3, doubting the conduct and approach of A1, he called two neighbouring witnesses and the packet which was carried by A1 was examined which was found to be dried ganja. The same was further confirmed by PW.3 by smelling.
Crl.A.No.1208 of 2008
:-3-:
prosecution has failed to bring any evidence to connect the 2nd accused with the crime and thus he found not guilty and he is acquitted. But the first accused found guilty of the offence under Section 20(b)(ii)B and he is convicted thereunder. On such conviction the 1st accused is sentenced to undergo rigorous imprisonment for two years and to pay fine of `25,000/- and in default in paying the fine amount, he is directed to undergo rigorous imprisonment for another six months. Set off is allowed. It is the above finding and order of conviction and sentence that are challenged in this appeal at the instance of the first accused in the above sessions case.
Crl.A.No.1208 of 2008
:-4-:
questioned A1 about the source, A1 disclosed that the same was entrusted with him by A2 for sale. Thereafter, according to PW.3, he informed A1 about his right to be examined in the presence of a Gazetted Officer, but the accused did not insists for such procedure. However, PW.3 sent an Excise Guard to the Circle Inspector of Excise, requesting him to be a witness for body search. It is the further case of PW.3, as the first accused disclosed about the involvement of A2, with the aid of A1, PW.3 proceeded to the house of A2 after preparing a search memorandum. But nothing seized from the house of A2 and thereafter PW.3 along with A1 and the witnesses came back to the place at which A1 was intercepted. Thus, according to PW.3, thereafter he seized the entire contraband articles from the possession of A1 by preparing a seizure mahazar. Thus, according to PW.3, A1 was arrested from the spot and the contraband articles were seized.
Crl.A.No.1208 of 2008
:-5-:
personal search. Thereafter PWs.5 and 3 were went to the Excise Range Office, Adimaly wherein PW.5 registered crime and occurrence report. According to PW.5, he had also prepared forwarding note. PW.6 had finally laid the charge and before that, he had prepared scene mahazar. The two independent witnesses cited and examined by the prosecution, namely, PWs.1 and 3 turned hostile towards the prosecution. As PW.1 admitted his signature in the arrest memo with respect to the arrest of A1, and in the search list with respect to the search of house of A2, Ext.P1 arrest memo and Ext.P2 search list are marked through PW.1. Ext.P3 is the CD contradiction of PW.1. Ext.P4 is the signature of PW.1 on the paper slip on the sample. When PW.3 was examined, Ext.P5 search memo with respect to the house of A2, Ext.P6 arrest intimation with respect to the arrest of A1, Ext.P7 seizure mahazar, Ext.P8 property list and Ext.P9 inventory of MOs. were marked through PW.3. PW.3 has also identified MO.1 residue of ganja after sampling and MO.2 ganja, etc.
Crl.A.No.1208 of 2008
:-6-:
Crl.A.No.1208 of 2008
:-7-:
finding of the trial court about the involvement of A1 and therefore, no interference is warranted with respect to the conviction recorded by the trial court against the appellant.
Crl.A.No.1208 of 2008
:-8-:
witnesses. Among PWs.3 and 5 PW.3 is the official who allegedly seized the contraband articles from the possession of the accused. According to me, his evidence is not sufficient to inspire the confidence of the court because of the inherent defect and contradiction in his evidence which is further complicated by the contemporary document namely Ext.P7. Going by the evidence and materials on record it appears that after the interception with A1 and after realising the fact according to PW.3 that A1 was found in possession of ganja, without effecting the seizure of the same, after sending the guard for bringing PW.5, he along with A1 and Pws.1 and 2 went to the house of A2 for search of the house of A2. According to PW.3, after conducting search in the house of A2 himself and party again returned to the place of occurrence namely at the place where A1 was intercepted by PW.3 and thereafter the ganja was seized from his possession and that too after conducting a body search of A2 in the presence of PW.5. As rightly pointed out by the learned counsel for the appellant PW.5 arrived at the place of occurrence by 3.40 P.M.
Crl.A.No.1208 of 2008
:-9-:
even as per the version of PW.3 and also as per the evidence of PW.5 himself. Arrest in this case was recorded as per Ext.P1 arrest memo at 3.45 P.M. The arrest intimation was given at 3.50 P.M. But according to PW.5, when he reached the spot by 3.40 P.M. he found that the contraband article was with PW.3 and the Excise Officials. That shows before, the exact seizure of the contraband article at 4 P.M. as claimed by PW.3, he had already seized the same. Therefore the evidence of PW.3, about the seizure, not free of doubt and infirmities.
Crl.A.No.1208 of 2008
:-10-:
In this juncture, it is relevant to note that it is quite unbelievable that after the realisation of the facts that A1 had seen possession of Ganja, no seizure was effected then and there and in spite of that PW.3 proceeded to the house of A2.
“ഇപ�ക�ര� കഞ�വ വ�ല�നക�യ� കടത�കക�ണ� വന ജ��ര��കന ഒന�� പ�ത� സ�നത� ജ രക�കയ�� ട� കഞ�വ ജ!ല"�ഭത�ന�യ� വ�ലക�ന കക�ട�തയച ജ&വ�ക�ള� ത�"(ക�ല അട�!�"� വ�ജ"*��ല ക(മല��റ കരയ�ല ക�ഴ�യ�"�ല വ.ട�ല വരക� !കന 34 വയസ�ള �ജക�ചകന രണ�� പ�ത� സ�നത� ജ രത� ജകകസട�ത�.”
Crl.A.No.1208 of 2008
:-11-:
On the basis of the above recital in Ext.P7 the learned counsel for the appellant submitted that Ext.P7 seizure mahazar was not prepared at the place of occurrence as claimed by PW.3, whereas the same prepared in the Excise Range Office. According to me, the above submission requires serious consideration since the same contains some force in view of the other facts and circumstances involved in the case. It is relevant to note that in Ext.P2 search list PW.3 obtained the signature of PWs.1 and 2 who are also attestors to Ext.P7 seizure mahazar wherein also alleged contained their signatures. But on comparison of these signatures seen in Ext.P7 mahazar with the signature in Ext.P2 search list, it is strange to note that those signatures have absolutely no similarity with the signatures in Ext.P2 search list. In this juncture it is relevant to note that Pws.1 and 2 have admitted their signatures in Ext.P1 arrest memo and Ext.P2 search list. But they did not admit the same in Ext.P7 seizure mahazar. According to me, the above contradictions or dissimilarity in the signature created doubt in Ext.P7 mahazar particularly in
Crl.A.No.1208 of 2008
:-12-:
view of the above mentioned recital contained in Ext.P7.
after the search of house of A2 with the presence of PWs.1 and 2 and thereafter PW.3 again gone to the place of occurrence with A1 and thereafter prepared a mahazar at the place of occurrence. In view of the recital contained in Ext.P7 seizure mahazar it cannot be ruled out the possibility of preparing Ext.P7 in the Excise Range Office as contented by the learned counsel for the appellant and if actually Ext.P7 seizure mahazar was prepared at the place of occurrence, absolutely there is no occasion or possibility to incorporate that the case was taken against A1 and A2 putting them in the array of accused.
Crl.A.No.1208 of 2008
:-13-:
and 5-the official witnesses cannot go together. So, it can be reasonably presumed, particularly in view of the recital contained in Ext.P7, that the same was prepared in the Excise Range Office and not at the place of occurrence as claimed by PW.3.
Crl.A.No.1208 of 2008
:-14-:
In the result, this appeal is allowed setting aside the judgment dated 18/6/2008 in S.C.(NDPS) No.7 of 2007 on the file of the court of the Special Judge for NDPS Act Cases, Thodupuzha and the bail bond, if any, executed by the petitioner stands cancelled and he is set at liberty. If the petitioner has deposited any amount in the trial court in terms of the order dated 23/6/2008 in Crl.M.Appln.No.6038 of 2008 of this Court, the same shall be returned to the appellant forthwith in case an application is moved in this regard.
The Criminal Appeal is allowed accordingly.
V.K.MOHANAN, JUDGE
skj
True copy
P.A. to Judge
3 issues framed by the court
Whether the trial court was justified in convicting the appellant for possession of drugs given defects in seizure and contradictory evidence?
Whether the delay in seizure and lack of custody of contraband by independent witnesses inducted the doubt about the authenticity of the seizure?
Whether the discrepancies in the seizure memorandum (Ext.P7) regarding time, place, and witness signatures created doubt sufficient for the benefit of the accused?
Colour shows how this judgement treated each authority
S.C.(NDPS) No.7 of 2007Followed¶20
2 provisions across 1 enactments
George (Appellant/Accused)
State of Kerala
V.K. Mohanan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
