Allowed

K.P.Abdurahiman v. State of Kerala

Kerala HC11 Feb 2013CRL.A/424/2003

Case brief

AI extract

What is this about?

The High Court allowed a criminal appeal challenging conviction and句子 under Section 21 of the N.D.P.S. Act. The bench held that the detecting officer miserably failed to comply with Section 50 of the Act by not informing the appellant of his right to be searched in the presence of a Gazetted officer or Magistrate in an unequivocal manner. Relying on Supreme Court precedents, the court set aside th

What did the court decide?

The impugned judgment of conviction and sentence dated 19-10-2001 is set aside. The appellant is acquitted of all charges and set at liberty.

K.P.Abdurahiman Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2013)

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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 V.K.MOHANAN

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MONDAY, THE 11TH DAY OF FEBRUARY 2013/22ND MAGHA 1934

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CRL.A.No. 424 of 2003 ( F)

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AGAINST THE ORDER/JUDGMENT IN SC.57/2001 of SPL. COURT (NDPS ACT CASES), VADAKARA DATED 19-10-2001

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APPELLANT(S)/ACCUSED:

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K.P.ABDURAHIMAN @ ATHIRANI,

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S/O PALLI, AGED 46 YEARS, NATUPALLAM VEEDU, MOGRAL, NEAR RAHMATH NAGAR, KASARAGOD.

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BY ADVS.SRI.K.R.RAGHUNATH SRI.M.THAMBAN

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SMT.T.SUDHAMANI

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RESPONDENT/RESPONDENT:

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STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM THROUGH S.H.O. NADAKKAVU POLICE STATION.

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BY PUBLIC PROSECUTOR SMT.V.H.JASMINE

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.K.MOHANAN, J.

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Crl.A.No.424 of 2003

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Dated this the 11^th day of February, 2013

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JUDGMENT

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The sole appellant in this appeal challenging his conviction and sentence for the offence under Section 21 of N.D.P.S. (herein after referred to as 'N.D.P.S.Act').

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The prosecution case is that, on 13/08/2000

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PW.1, in pursuance to an information received by him with regard to the sale of brown sugar near the aquarium in Kozhikode beach, conducted inspection and effected the seizure of 88.72 gms of brown sugar from the possession of the accused and accordingly he is arrested and thus the accused has committed the offence under Section 21 of N.D.P.S. Act. Accordingly, Crime No.243 of 2000 was registered in the Nadakkavu Police Station for the said offence and after investigation report was laid, in the court of the Special Judge(N.D.P.S. Act cases), Vadakara, whereupon on taking cognizance S.C.No.57 of 2001 was instituted. Thus, during the trial of the case

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Crl.A.No.424/2003

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from the side of the prosecution PWs.1 to 7 were examined and Exts.P1 to P10 were marked. From the side of the defence DWs.1 and 2 were examined and Ext.D1 was marked. Besides the above, the material objects were produced and marked as Mos.1 to 3. The trial court finally found that the accused was found in possession of 88.72 gms. of brown sugar and accordingly the accused has committed the offence punishable under Section 21 of the N.D.P.S.Act. On Such finding the appellant is found guilty and on such conviction, he is sentenced to undergo rigorous imprisonment for a period of 13 years and to pay a fine of Rupees one lakh and in default of payment of fine, he is directed to undergo simple imprisonment for six months. Set off is allowed under Section 428 of Cr.P.C. It is the above finding and order of conviction and sentence challenged in this appeal.

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I have heard Adv.Smt.Sudhamani, the learned

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counsel for the appellant and the learned Public Prosecutor.

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Crl.A.No.424/2003

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The learned counsel for the appellant, among other contentions, it is vehemently submitted that the detecting officer, who is examined as PW.1, miserably failed to comply with the mandatory provisions contained under Section 50 of the N.D.P.S Act and therefore, the conviction is bad and liable to be set aside and consequently the appellant is entitled to get an acquittal. On the other hand the learned Public Prosecutor submitted that the prosecution has succeeded in establishing its case against the accused and the evidence of PW.1 would show the compliance of Section 50 of the N.D.P.S.Act and therefore the findings of the court below are perfectly correct and valid and no interference is warranted.

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I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor. I have also perused the judgments of the trial court and evidence and materials on record.

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Crl.A.No.424/2003

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In a recent decision of the Hon'ble Apex Court in Ashok Kumar Sharma Vs. State of Rajasthan 2013 (1) Scale 193, the Hon'ble Apex Court, reiterating the position already settled, has held that non-compliance of the mandatory procedure contains Section 50 of the N.D.P.S.Act has vitiated the entire proceedings initiated against the appellant. Banking upon the above decision of the Apex Court, the learned counsel for the appellant submitted that in the present case also PW.1 has miserably failed to discharge his duty and the mandatory provisions contained in Section 50 of the N.D.P.S Act are not complied with. As the above question touches the very root of the prosecution, I proceed to consider whether PW.1 has complied with Section 50 of the N.D.P.S Act. During the chief examination of PW.1, he had deposed before the court that:

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“1-)0 പ�ത� മ�ഹമദ� ക�ഞ�ഞഞ�യ� arrest യ��തശ�ഷ� ഇശ��ള ശക�ടത��ല ന�ല �ന പ�ത� അബ�ല റഹ�മ�ശന�ട� ന�ങള വ�� മ� � മര�ന�� brown sugar ഉയ)ന� സ�� ഉയ)ന�� ന�ങള�യട ശദഹ� ഈ സമ�� ര�ശ��ധ� ��ശ��ള Magistrate യ.ശ�� Gazetted ഉശദ/�ഗസനമ�ര�യടശ�� സ�ന�ദ4യ�ട�ന ന�ങള � അവക��മ �)� അങയന

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Crl.A.No.424/2003

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ആര�യടയ�ങ�ല�� സ�ന�ദ4� ആവ�4മ �ശ)� എന� �റഞ� മനസ�ല� � ശ��ദ�ചത�ല മറ��ട�� അത�യ. ആവ�4� ഇല സ�റ�ന� തയന �ര�ശ��ധ� �� എന� �റഞ�.”

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But the learned counsel for the appellant submitted that, though PW.1 has stated during his chief examination about the compliance of Section 50 of the N.D.P.S Act, the contemporary document that Ext.P2 prepared by PW.1 does not reflect that he had conveyed the right under Section 50 of the N.D.P.S.Act to the appellant. In Exts.P2 and P3 what PW.1 recorded is that:-

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“ന�ങള�യട ശദഹ� ഈ സമ�� ര�ശ��ധ� �നത�ന� മജ�സ�പടറ�യ.ശ��ഗസറഡ�, ഓഫDസറ�ശടശ��സ�ന�ദ4�, ആവ�4യ�ട�ന ന��മ� അന��സ� �ന�)�. അങയന വലവര�ശട�� സ�ന�ദ4� ന�ങള � ആവ�/മ�ശ)�? ആവ�/മ�ല. സ�റ�ന� എയ. ശദഹ� �ര�ശ��ധ� �� '' എന��...................., .

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From the deposition of PW.1 during his chief examination it appears to me that particularly from the above quoted portion of deposition of PW.1 he has miserably failed to convey to the appellant, in an unequivocal language and unambiguously to the appellant that the appellant/ accused has got a right to demand to have his body search in the presence of either

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of these two officers mentioned in the Section. In the decision reported in State of Delhi Vs. Ram Avtar AIR 2011 SC page 2699, particularly in paragraph 25 as rightly pointed out by the learned counsel for the appellant in the present case also the information was not complete and unambiguous. In the decision reported in State of Delhi Vs. Ram Avtar AIR 2011 SC page 2699, particularly in paragraph 22 it is held “..................The law has provided a right to the accused, and makes it obligatory upon the officer concerned to make the suspect aware of such right.” It is further held “While discharging the onus of Section 50 of the N.D.P.S. Act, the prosecution has to establish that information regarding the existence of such a right had been given to the suspect. If such information is incomplete and ambiguous, then it cannot be construed to satisfy the requirements of Section 50 of the N.D.P.S. Act.” In the light of the above decision it can be seen that, in the present case from the deposition of PW.1 about the compliance of Section 50 of the N.D.P.S. Act, according to me, is not satisfactory.

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Crl.A.No.424/2003

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In the decision Ashok Kumar Sharma Vs.

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State of Rajasthan 2013 (1) Scale 193 page 197, the

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Apex Court has held “......We notice this fact is also within the knowledge of the legislature, possibly for that reason the legislature, in its wisdom imposed an obligation on the authorised officer acting under Section 50 of the N.D.P.S. Act to inform the suspect of his right under Section 50 of the N.D.P.S. Act to be searched in the presence of a Gazetted officer or a Magistrate warranting strict compliance of that procedure.” In the very same decision the Apex Court has held that “We are of the view that non-compliance of this mandatory procedure has vitiated the entire proceedings initiated against the accused/appellant.” Following the above decision and the facts and circumstances involved in the case particularly with respect to Section 50 of the N.D.P.S. Act it appears that PW.1 has miserably failed to convey the right of the appellant as envisaged under Section 50 of the N.D.P.S. Act properly and perfectly and the claim of PW.1 about the compliance the mandatory requirements under Section 50 of the N.D.P.S. Act is not supported by contemporary documents particularly

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Exts.P2 and P3. Therefore, on the above sole ground, according to me, the appellant is entitled to get an acquittal.

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In the result, the judgment dated 19/10/2001 in S.C.No.57 of 2001 of the court of the Special Judge (N.D.P.S. Act cases), Vadakara is set aside and the appellant/ accused is acquitted of all the charges levelled against him and bail bond, if any, executed by him is cancelled and he is set at liberty.

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The appeal is allowed accordingly.

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V.K.MOHANAN, JUDGE

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skj

K.P.Abdurahiman v. State of Kerala

Case brief

What is this about?

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K.P.Abdurahiman v. State of Kerala

Case brief

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