In criminal appeal regarding conviction under NDPS Act, High Court of Kerala acquitted two appellants. Court held conviction unsustainable as prosecution failed to prove case due to lack of sufficient evidence regarding informant status and admissibility of information leading to seizure.
Conviction and sentence set aside; appellants acquitted.
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 B.KEMAL PASHA
MONDAY, THE 17TH DAY OF OCTOBER 2016/25TH ASWINA, 1938
CRL.A.No. 505 of 2009 ( )
SC (NDPS) NO.14/2007 of SPECIAL COURT FOR NDPS ACT CASES, THODUPUZHA
APPELLANTS/ACCUSED NOS.1 & 3:
1. RAMESH, S/O.MAYAN, PUZHAKKARAYIL, BAISONVALLEY, KURANGUPARA BHAGOM.
2. GIJO, S/O.RAJU, THALANANIYIL HOUSE, ALMAVU CITY, KANAKAPUZHA KARA, KANTHIPPARA VILLAGE.
BY ADVS.SRI.B.RAMAN PILLAI SRI.ANIL K.MOHAMMED SRI.R.ANIL SRI.T.ANIL KUMAR SRI.JOSEPH P.ALEX SRI.SUJESH MENON V.B. SRI.SHYAM ARAVIND
RESPONDENT/COMPLAINANT:
STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY SR.PUBLIC PROSECUTOR SRI.ALEX M. THOMBRA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DSV/19/10/16
[CR]
B. KEMAL PASHA, J
================ Crl.Appeal No.505 of 2009 ================
Dated this the 17th day of October, 2016
J U D G M E N T
(1) Whether the appellants could be treated as persons accused of an offence till the seizure of ganja involved in this case?
(2) Whether the information allegedly obtained from the appellants, which allegedly led to the seizure of ganja, is admissible in evidence?
Crl.A.505/09 2
referred to as ‘the NDPS Act, 1985’) and each of whom sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of `25,000/-, in default, to undergo rigorous imprisonment for 6 more months. The court below acquitted A2.
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information in writing in the GD and intimated the fact to the Circle Inspector of Police. At about 8.05 p.m., PW2 along with the Police party proceeded by the Police jeep to trace out the Tata Sumo vehicle. They could see the said Tata Sumo vehicle near the patrol bunk at Pooppara and the same was being driven in high speed. Even though PW2 had allegedly given the signal to the vehicle to stop it, disregarding the signal, it sped away. PW2 and the Police party chased the vehicle and intercepted it.
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that place, and as pointed out by A1 and A3, 18 Kgs of ganja placed in 18 packets in a sack, which was kept beneath a tree, was recovered and seized through Exhibit-P8 mahazar. Thereafter, samples were drawn and the properties were packed and sealed. PW2 registered Crime No.84 of 2007 of the Santhanpara Police Station, through Exhibit-P9 First Information Report, on the basis of Exhibit-P9(a) suo motu report. The investigation was taken over by PW9 Circle Inspector of Police. He completed the investigation and filed the Final Report.
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against them. The prosecution and the accused were heard. Since no grounds were made out to acquit the accused under Section 232 Cr.P.C., they were called upon to enter on their defence. No further defence evidence was adduced. Again, the prosecution and the accused were heard. The court below acquitted A2 and found A1 and A3 guilty of the offence punishable under Section 20(b)(ii)B of the NDPS Act, 1985, convicted them thereunder, and sentenced them as aforesaid.
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PW6 have turned hostile to the prosecution. They have not supported the prosecution case. In fact, the only evidence available in the matter, regarding the incident, is the evidence of PW2.
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under arrest only on the discovery of ganja in a sack placed beneath a tree. Therefore, till then, A1 and A3 could not be treated as persons, who were accused of any offence. In such case, even if an information was furnished by A1 or A3, which allegedly led to the seizure of ganja, it could not have been treated as an information passed on to PW2 by a person accused of an offence and therefore, such an information is not admissible in evidence under Section 27 of the Indian Evidence Act.
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cannot be proved.
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PW9, the said persons subsequently took away the vehicle and while they were returning with the vehicle, they placed the sack containing ganja beneath the tree.
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accused themselves and they were permitted to take it away.
in this case to find A1 and A3 guilty of the offence
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punishable under Section 20(b)(ii)B of the NDPS Act, 1985. The conviction and sentence passed by the court below are therefore, liable to be set aside.
In the result, this Crl.Appeal is allowed. The conviction and sentence passed by the court below are set aside and the appellants, who are A1 and A3 in the case, are acquitted.
Sd/- B. KEMAL PASHA, JUDGE.
DSV/17/10/16
// True Copy //
P.A. To Judge
2 issues framed by the court
Whether the appellants could be treated as persons accused of an offence till the seizure of ganja involved in the case.
Whether information allegedly obtained from the appellants, which allegedly led to the seizure of ganja, is admissible in evidence.
4 provisions across 3 enactments
RAMESH
GIJO
STATE OF KERALA
B. KEMAL PASHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
