Allowed

Shaji v. State of Kerala

Kerala HC22 Mar 2019CRL.A/120/2010

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal against the conviction of the second accused under the NDPS Act. The court held that mere phone call details and delayed identification were insufficient to prove the appellant's possession of contraband or involvement in the conspiracy, setting aside the lower court's conviction and sentencing.

What did the court decide?

Conviction and sentence of the second accused set aside and appellant acquitted of all charges.

Shaji Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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FRIDAY, THE 22ND DAY OF MARCH 2019 / 1ST CHAITHRA, 1941

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CRL.A.No. 120 of 2010

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AGAINST THE JUDGMENT IN SC NO. (NDPS)23/2009 of SPECIAL COURT (NDPS ACT CASES), THODUPUZHA DATED 18-01-2010

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APPELLANT:

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SHAJI, S/O NARAYANAN, MALAYIL VEEDU, RAJAKKAD KARA, RAJAKKAD VILLAGE.

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BY ADV. SRI.S.RAJEEV

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RESPONDENT:

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STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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ADV SR PP B RAMANAND

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.APPL.No.120/2010 2

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JUDGMENT

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The appellant is the 2^nd accused in S.C. No.23/2009 disposed by the Additional Sessions Judge/Special Judge for the Trial of NDPS Act cases Thodupuzha as per the judgment dated 18.01.2010. The gist of the prosecution allegations is that the appellant along with the three other accused persons alleged to have committed offence punishable under Section 20(b)(ii)B of NDPS Act. The prosecution allegation is that the Police Officer is found a pick-up van No.KL 06 C 228 in a suspicious circumstances and they stopped the vehicle and according to the prosecution the accused No.2 who is travelled in the vehicle, ran away from the place of occurrence and on search they found 7 packets of dried Ganja of 2 Kgs which were hidden between the

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Engine and the Bonnet. According to the prosecution, after complying all formalities they have seized the articles and the accused

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No.1 was arrested from the spot.

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2. After investigation, the final report was submitted before the court below and the learned Sessions Judge has taken cognizance as S.C. (NDPS) No.23/2009.

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3. During the trial, prosecution has examined PW1 to PW16 to prove the prosecution case and marked Ext.P1 to Ext.P22 as the prosecution exhibits and MO1 to MO9 were also marked. On the side of defence, the accused was examined as DW1. After trial, the accused Nos. 1 and 2 were found guilty for offence punishable under Sections 20(b)(ii)B and 29(1) of NDPS Act and they were convicted and sentenced to undergo RI for five years each and a fine of Rs.10,000/- each in default to

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undergo RI for three months under Section 20(b)(ii)and 29(1) of NDPS Act. Highly aggrieved by the conviction and sentence, this appeal has been preferred by the 2^nd accused therein, who is the appellant herein.

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4. According to the appellant herein, the trial court was heavily relied on the evidence of the interest of testimony of official witness to convict the appellant. The identity of this appellant was not properly established by the prosecution. The prosecution has miserably failed to prove the detection, search, seizure, sampling, sealing and labeling done by the officials. The prosecution has not produced any material to substantiate the search and seizure of the contraband from the vehicle. The court below ought to have found that even if, Ext.P9 and Ext.P10 were accepted for the sake of

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argument, it is not enough to prove the complicity of the accused. On the ground as urged above the appellant prays of setting

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aside the judgment and conviction of the court below and sought for acquittal of the accused.

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5. Now the question to be considered is whether the finding of the court below that the appellant/2^nd accused is guilty of offence under Sections 20(b)(ii)and 29(1) of NDPS Act.

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6. The definite case of the prosecution is that the accused four in numbers including appellant herein alleged to have committed offence punishable under Sections 20(b)(ii)and 29(1) of NDPS Act. As per the final report, on 06-12-2007 at about 6 pm at Adappoothazham in Kumaramangalam Village CW26 found A1 and A2 in possession of 14 kgs of dried Ganja transporting in a pick-up van owned by the 1^st accused bearing No.KL 06 C 228 hiding in

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between the engine and the bonnet which was entrusted with them by the 3^rd accused, who has kept it in his residence situated in the property comprised in Sy.No.195/82 85-1 195/28 in Rajakkadu Village to handover the same to the 4^th accused, who was a previous convict in an NDPS case and in that the accused were alleged to have committed the above offence.

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7. According to the prosecution, PW16(CW26) along with PW1(CW3) and other Police officials were on petrol duty found a pick-up van No.KL 06 C 228 in a suspicious circumstances and they intercepted the same. On seeing them, the appellant/2^nd accused was travelling by the said vehicle ran away from the spot. Thereafter, they have taken custody of the 1^st accused who was driving the vehicle. After that, they have searched the vehicle and found 7 packets of dried Ganja of 2 kgs each

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hidden between the engine and the bonnet and after complying all legal formalities the contraband article were seized and out of that the samples were taken from each packets. After that the samples and the balance contraband article were sealed and affixed with labels. After detection of the offence, Ext.P1 Mahazar was prepared. The PW1 and PW16 were the material witness who detected the offence gave oral evidence with regard to the detection, search of the vehicle, seizure of MO1 and about the further formalities of preparation of Ext.P1 mahazar, sampling, sealing, labelling etc . They have also given evidence to the effect that the detection and subsequent formalities were done in the presence of two independent witnesses who were examined as PW2 and PW3 cited by the prosecution as CW1 and CW2. The PW2 and PW3

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did not give any incriminating evidence regarding the search, seizure, sampling sealing and arrest of the 1^st accused. According to the PW1, he has arrested the 1^st accused from the spot. Then the DYSP asked the Sub Inspector of Police to bring the investigation report and seal. Thereafter, he has weighted with the aid of CW8 and found that the total weight of the contraband article was 2.100 Kgs. Out of the entire 7 packets, he has taken 100 gms from each packets and affixed a seal containing signature of the 1^st accused, CW1 and CW2 and DYSP and rest of the packets were sealed and affixed with a label. The appeal has been preferred by the 2^nd accused herein so I am constrained only to discuss the evidence adduced against the appellant/2^nd accused alone. The definite case of the prosecution is

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that the 1^st and 2^nd accused were found inside the pick-up van at the time of detection. It is the case of the prosecution that the 1^st accused is the owner of the pick-up van and it was driven by him. Ext.P2 is the RC particulars furnished by PW11/CW19 which would have proved that the said pick-up van belongs to the 1^st accused and relied on Ext.P12 the court below has held that the 1^st accused is the owner of the pick-up van whereby the contraband articles were kept and even the 1^st accused was present inside the vehicle at the time of detection of the offence. Anyway, the 1^st accused is not before this Court to challenge the finding entered by the court below. As far as the appellant/2^nd accused is concerned that he was allegedly travelling in vehicle driven by the 1^st accused at the time of detection. When the PW1 and PW16 has

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deposed before the Court that on seeing the Police officials, the appellant has ran away from the spot and escaped. It is true that the PW1 and PW16 have identified the appellant who was standing in the dock and deposed that he was the person who ran away from the vehicle at the time of detection. The lower court has held that certain identity cannot be given much significant since PW1 and PW16 had no acquaintance with him prior to this incident. It has held that when a person who has no acquaintance cannot identify a person who ran away on seeing other person without giving sufficient time and opportunity to see the face and to get imprinted in the memory so as to identify him at a subsequent stage. Infact, the court below has discarded the evidence of the PW1 and PW16 regarding the identity of the appellant/2^nd accused. But lower court has

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relied on the evidence adduced by the prosecution to connect the appellant/2^nd accused in this crime and the court below has taken the phone calls between the 1^st accused and the appellant as evidenced from Ext.P9 document. Relying on the phone calls between the 1^st accused and the appellant/2^nd accused, the court below held that the 2^nd accused is liable to be punished by invoking Section 20(b)(ii)B and 29(1) of NDPS Act. In this connection I have gone through the evidence adduced by the prosecution. According to the prosecution case, at the time of detection there was a mobile phone with the 1^st accused which is marked as MO9 with a Sim No.9447987498. The mobile number used by the appellant is 9447027335. It was the case of the prosecution that even though, the accused were using the above referred respective

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mobile numbers, the connections were actually not in their name and it was in fictitious names. Ext.P9 is the call details obtained by the investigating agency from the BSNL showing the details of calls from the mobile phone numbers referred above used by the 1^st accused and the appellant. In this connection I have gone through Ext.P9 document, from the pages 2 to 12, the originating calls from and terminating calls in the mobile phone No.9447987498 which belongs to the 1^st accused and 2^nd part, pages 13 to 20 would show that call details relating to mobile phone No.9447027335 used by the appellant/2^nd accused. On the basis of these call details, it has held that there were several calls between the 1^st accused and the appellant/2^nd accused and that on 06.02.2007, the date of detection, there were 8 calls between them.

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From the call details it could be seen that, at the time of calls they were at Rajakkadu and Chemmannoor. This will create that the case advanced by the prosecution is correct. According to the prosecution, there was no proper explanation from the 1^st accused and the appellant regarding the telephone calls between them on the date of detection and prior to that. Accordingly on relying on evidence adduced by the PW1 and PW16 coupled with the telephone call details evidenced by the Ext.P9 held that there was conspiracy between the 1^st accused and the appellant/2^nd accused in dealing with Ganja as alleged by the prosecution. From the discussion of the evidence, the 3^rd accused seemed to have supplied the Ganja was not guilty to charge and the 4^th accused also was not found guilty to charge, they were acquitted. Now, the only

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question is as to whether the phone calls between the 1^st accused and the appellant/2^nd

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accused is sufficient enough to convict the 2^nd accused by invoking Sections 20(b)(ii)B and 29(1) of NDPS Act.

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8. Sections 20(b)(ii)(B) of NDPS Act

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stipulate that;

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Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder:-

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20(b). produces, manufactures, possesses sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable,-

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20(ii)(B). and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a terms which may extend to ten years, and with fine which may extend to one lakh rupees.

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So when the prosecution alleged to have

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committed offence under Section Section 20(b) (ii)B of NDPS Act, the burden is heavy on the prosecution to establish that at the time of detection the accused was found in possession of the contraband articles. Even though, it was alleged that the appellant was inside the pick-up van driven by the 1^st accused; on seeing the Police official, he ran away from the spot. The alleged detection was on 06.12.2011 at 6 pm. So the identification of the accused after a lapse of long year cannot be found reliable. The lower court has relied only on the basis of phone calls and found that the appellant/2^nd accused is guilty of offence under Sections 20(b)(ii)(B) and 29(1) of NDPS Act. It is also evident that the phones which was used by the 1^st accused and the appellant/2^nd accused would stand in the name of some other persons. So the mere

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production of the call details is not

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sufficient enough to prove that the appellant/2^nd accused has used the mobile number 9447027335 for contacting the 1^st accused. Anyway, it is the burden on the prosecution to establish that this contraband articles were in the possession of the appellant/2^nd accused. There is no evidence before this Court except the phone calls to prove that he was in possession of the contraband articles at the time of detection of offence. Of course the 1^st accused was arrested from the spot and samples were taken affixing label containing his signature. As far as, the offences is concerned it is very serious one. So, the prosecution has to take all precaution before charging the case against the accused. Obviously no evidence is forthcoming with regard to connecting the

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appellant/2^nd accused regarding the commission

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of the alleged offence. Therefore, finding

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entered by the lower court that the appellant/2^nd accused has committed the offences as alleged by the prosecution is found to be incorrect and interference of this Court is highly warranted and liable to be set aside against the appellant/2^nd accused.

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In the result the appeal is allowed and conviction and sentenced passed against the appellant/2^nd accused is hereby set aside and he is acquitted of all the charges levelled against him.

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Sd/-

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ANNIE JOHN JUDGE

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YKB

Shaji v. State of Kerala

Case brief

What is this about?

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Shaji v. State of Kerala

Case brief

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