Dismissed

Balraj @ Mni @ Palraj v. State of Kerala

Kerala HC20 Nov 2020CRL.A/654/2006

Case brief

AI extract

What is this about?

In an appeal under Section 374 Cr.P.C., the Kerala High Court upheld the conviction of the appellant for possessing ganja under the NDPS Act. The Court held the seizure was valid despite procedural arguments and modified the default imprisonment term from four months to two months.

What did the court decide?

Appeal dismissed; conviction confirmed; default sentence reduced from four months rigorous imprisonment to two months rigorous imprisonment.

Balraj @ Mni @ Palraj Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2020)

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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 K.HARIPAL

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FRIDAY, THE 20TH DAY OF NOVEMBER 2020 / 29TH KARTHIKA, 1942

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CRL.A.No.654 OF 2006

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AGAINST THE JUDGMENT IN S.C. NO. 321/2004 DATED 25-02-2006 OF THE II ADDITIONAL SESSIONS JUDGE, THIRUVANANTHAPURAM

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APPELLANT/ACCUSED:

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BALRAJ @ MANI @ PALRAJ S/O.JOHNSON NADAR, ILLAMCHIRA PULIMOODU VEEDU, IDACODU VILLAGE, ILLAMCHIRA DESOM, MOOVOTTUKONAM, NEYYATTINKARA TALUK.

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BY ADVS. SHRI.SASTHAMANGALAM S. AJITHKUMAR SMT.DEEPTHY.S.NATH SRI.PRABHU VIJAYAKUMAR

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RESPONDENT:

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

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BY SMT. MAYA M.N., PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-11-2020, THE COURT ON 20-11-2020 DELIVERED THE FOLLOWING:

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Crl.Appeal No. 654 of 2006 2

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JUDGMENT

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In this appeal preferred under Section 374 of the Code of Criminal Procedure, hereinafter referred to as the 'Cr.P.C.', the convict in S.C.No.321/2004 of the II Additional Sessions Judge, Thiruvananthapuram, challenges the judgment dated 25.02.2006. That case was taken on file on a charge sheet laid by the Circle Inspector of Police, Parassala in Crime No. 334/2002 of Parassala police station. The precise allegation against the appellant is that on 23.07.2002, at 3.10 P.M., the Sub Inspector of Police, Parassala police station found him travelling in a Mahindra tempo van bearing Registration No. TNC-2041 on the Kaliyikavila - Parassala road; at Karali junction in Parassala Village, the Sub Inspector intercepted the vehicle and found the appellant travelling, carrying a packet containing 2.900 kgs. of ganja. The item was seized following the procedural formalities and the crime was registered. Samples were collected from the ganja from the place of detection itself, in the presence of independent witnesses and the Circle Inspector of Parassala, a gazetted officer. Later, the investigation was handed over to the Circle Inspector. They produced the contraband before the court along with the appellant. After

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investigation and collection of report from the Forensic Science Laboratory, the charge sheet was laid before the Special Court and thus the case was taken on file.

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On appearance, the appellant was served with all the records relied on by the prosecution. He was defended by a counsel of his choice. After hearing counsel on both sides, when a charge for offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985, for short the Act, was framed, read over and explained, he pleaded not guilty. He was on bail.

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Seven witnesses were examined on the side of the prosecution. Exts.P1 to P11 were also marked. Material objects were identified and marked as MO1 to 4 series. After completing evidence, when examined under Section 313(1)(b) of the Cr.P.C., the appellant reiterated his innocence. He denied all the incriminating evidence tendered against him. To the penultimate question he replied that he is a coolie by profession, on 23.07.2002 at about 8.45 A.M., he reached Parassala in connection with his avocation, then the Sub Inspector of Police questioned him. The Sub Inspector did not relish the answers

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given by him and hence he was slapped on his face and pulled by his

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shirt. He resisted the attack against him, then he was forcibly taken to the police station and kept inside the cell. Later on 24.07.2002 he was made to sign certain papers and at about 3.00 P.M., was asked to enter a Mahindra van. Later he was produced before the court, that he is innocent. Even though separate enquiry is not seen conducted under Section 232 of the Cr.P.C., it is evident from the proceedings paper that after the examination under Section 313 of the Cr.P.C., sufficient opportunities were afforded for adducing evidence in defence. From the materials on record, it is also certain that the appellant could not have been acquitted under Section 232 of the Cr.P.C. The appellant did not adduce any oral evidence in defence. However, a case diary contradiction of PW5 was marked as Ext.D1. After hearing counsel on both sides, by the impugned judgment, the learned Judge found him guilty of offence punishable under Section 20(b)(ii)(B) of the Act and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 5,000/-, in default to undergo imprisonment for four months. He was also allowed to set off the period of judicial custody undergone during the period of investigation.

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I heard the learned counsel for the appellant and also the learned Public Prosecutor, for the respondent State.

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According to the learned counsel, the charge sheet was laid without following the statutory formalities. Through Ext.P7, though the prosecution wanted to make the court believe that the Sub Inspector had proceeded to detect the crime after giving intimation to the official superior, the document was not produced either along with the FIR or during the course of investigation, but only at the final leg of the investigation. He also pointed out that non-compliance of Section 50 of the Act is also fatal to the prosecution. On the other hand, according to learned Public Prosecutor, all the formalities stated in the Act have been complied with by the detecting officer as well as the Investigating Officer, that there is absolutely nothing to interfere with the finding of conviction and the sentence imposed against the appellant.

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After going through the materials on record and evidence tendered by the prosecution, there is no reason to think that the argument urged by the learned counsel for the appellant has any substance. It is true that the Ext.P7 was produced only when the charge sheet was laid by the prosecution. Ext.P7 is a report sent by the Sub Inspector to his immediate superior, the Circle Inspector of Police, Parassala intimating the information received by him with

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regard to the crime. According to the prosecution, after sending the Ext.P7 report to the Circle Inspector, PW6 Sub Inspector accompanied by other police officials proceeded to Karali Junction, where the said tempo van was intercepted and the appellant was found travelling in it carrying the offensive article. In the first place, such an argument was raised by the learned counsel without understanding the purport and relevance of such a document. Ext.P7 was prepared, purportedly following the provision of law under Section 42(2) of the Act. For the purpose of detecting such an offence especially from a moving vehicle, in fact, sending a report under Section 42(2) of the Act was not warranted. Going by Section 42 of the Act, such a report is necessary only if the information is received with regard to keeping and concealment of illegally acquired property which is liable for seizure, freezing, or forfeiture in any building, conveyance or enclosed place. Here no doubt, the tempo van falls within the classification of a conveyance. Still it does not seem necessary that before intercepting the vehicle such a report should have been sent. In Ram Kumar v. Central Bureau of Narcotics [(2008) 5 SCC 385] , the hon'ble Apex Court held in an identical setting that Section 42 would not be attracted. It seems that it is Section 43

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which shall be attracted. A joint reading of Section 42(1) and 42(2) of the Act makes it clear that the requirement under Section 42(2) will be attracted only to a case where the information relates to the availability of narcotic drugs or substance in a building, conveyance or enclosed place as distinct from their availability in public place, which is covered by Section 43. Here the the vehicle was intercepted at broad day light, at 3.10 P.M., from Karali junction which is patently a public place. In other words, sending such a report would become necessary only if detecting officer proceeds to conduct search and seizure of some item from a building or a confined location. Here such a question does not arise. The information received by PW6 was with regard to the contraband which was carried while the said person

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was travelling in a vehicle. For that reason alone, the argument that Ext.P7 was not promptly produced before court does not merit consideration.

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Even otherwise, even if it is assumed that there was statutory mandate expected on the part of the detecting officer, that has been substantially complied with. From Ext.P3 itself, it is evident that he had proceeded to the place after sending such a report and therefore, in all probability Ext.P7 must have been prepared as

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claimed by PWs 6 and 7 and it is a contemporary document.

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The argument touching Section 50 of the Act also has no force. Compliance of Section 50 of the Act is required only if an offensive article is seized from the person of an offender. Even though some kind of body search was attempted by the officials, it is quite certain that PWs 6 and 7 did not have clear understanding about the requirement under Section 50 of the Act. Here no one has a case that the contraband was seized from the person of the appellant. Of course his body search might have been done in order to ascertain whether any further offensive article was concealed by him in his person. But the ganja was seized from the bag carried by him for which, body search was not required. Such a proposition is covered by the decisions reported in Megh Singh v. State of Punjab [AIR 2003 SC 3184] and State of Rajasthan v. Parmanand [2014(1) KLT 1030 (SC)] .

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The learned Special Judge has relied on the oral testimony of PWs 5, 6 and 7, police officials, who have given uniform version with regard to the detection of the offence, arrest of the appellant and seizure of the contraband from him. Ext.P1 report given by PW1 Scientific Assistant of Forensic Science Laboratory suggests that the

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item was ganja. The consistent version given by the police officials indicate that on getting information about the illegal transport of ganja, PW6 accompanied by PW5 and others proceeded to Karali junction, where the tempo van travelled by the appellant was stopped and when examined, he was found carrying the contraband in a bag held by him. It was seized under Ext.P3 mahazar in the presence of independent witnesses. Though both PWs 3 and 4, independent witnesses have turned hostile to the prosecution, it is certain that they had signed the Ext.P3 mahazar. PW3 was the driver of the tempo van travelled by the appellant. Similarly, PW4 is the person who had weighed the contraband. Both of them have identified their signatures found in Ext.P3 mahazar. It is certainly a document contemporaneous

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in nature. Both the independent witnesses turned hostile to the prosecution as an after thought, on the influence exerted by the appellant. At the same time, they have partially supported the case, in the sense that they identified the signatures found in the document.

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PWs 5 to 7 police officials have no reason to perjure against the appellant, who is a native of Tamil Nadu. They have no previous acquaintance with the appellant. The defence wanted to put up a case that the appellant was taken into custody by PW6 from

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Parassala junction on 23.07.2002, after he was found misbehaving in public place, after a drunken brawl. According to the defence, PW6 who intervened had manhandled him in public, apprehending that act would become controversial, in order to pre-empt a subsequent proceedings against the Sub Inspector, he was fabricating a false case against the appellant. The officials have denied the version. There is no supporting evidence to prove the allegation. As noticed earlier, even the appellant has no case that PWs 5 to 7 have any previous acquaintance with him. It does not stand to reason that he was framed in a false case, that too in a serious criminal case. The evidence in toto discount the version of the appellant and support the evidence tendered by the prosecution.

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The appellant was produced before the jurisdictional Magistrate on the following day itself, along with the contraband. The appellant has no case that he had related such a version to the Magistrate. In fact, that was the earliest possible opportunity made available to him to give vent to his version of the occurrence before a judicial authority. If he was arrested after a quarrel with the Sub Inspector as projected at the time of trial, necessarily that would have been conveyed to the Magistrate. Since that was not done, it can

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reasonably be assumed that this version is the result of an after thought. Moreover, merely for the reason that PWs 5 to 7 are police officials, unless overwhelming materials are brought on record, their testimony cannot be thrown overboard. They are also witnesses and undue interest cannot be attributed against them for rejecting the version which stands corroborated through other sources also.

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After revisiting the evidence, I have no reason to believe the version of the defence. On the other hand, the learned Special Judge is justified in giving credence to the oral testimony of PWs 5 to 7 and associate circumstances. To sum up, the prosecution has succeeded in bringing home the guilt of the appellant and there is no reason to interfere with the conviction. The conviction is confirmed.

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Turning to the sentence also, having regard to the quantity of ganja involved and the ramifications of the offence, sentence imposed is only modest. The use of ganja and other narcotic drugs has become very rampant. It has far reaching impact on the society especially among the youth. If such an offence, when proved, is not dealt with an iron hand, it will have far reaching consequences in the society.

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However, the default sentence is not specific; it is excessive

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also. Therefore, in default of payment of fine he shall undergo rigorous imprisonment for two months. To sum up, confirming the conviction and subject to the slight modification in sentence, the appeal is liable to be dismissed. Dismissed.

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Sd/-

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K.HARIPAL JUDGE

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DCS/09.11.2020

Balraj @ Mni @ Palraj v. State of Kerala

Case brief

What is this about?

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Balraj @ Mni @ Palraj v. State of Kerala

Case brief

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