Dismissed

Poornachandran v. State of Kerala

Kerala HC17 Oct 2022Crl.Rev.Pet/101/2021

Case brief

AI extract

What is this about?

This revision petition challenged the dismissal of an application to discharge the accused in a narcotic drug case. The court held that non-compliance with Section 50 of the NDPS Act does not bar the trial or render seized evidence inadmissible, rejecting the claim for discharge under Section 258 Cr.P.C.

What did the court decide?

The Criminal Revision Petition was dismissed, upholding the trial court's order denying discharge.

Poornachandran Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2022)

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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 MARY JOSEPH

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MONDAY, THE 17TH DAY OF OCTOBER 2022 / 25TH ASWINA, 1944
CRL.REV.PET NO. 101 OF 2021

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AGAINST THE ORDER/JUDGMENT DATED 10.08.2020 IN CMP
No.2916/2020 IN CC 2238/2013 OF JUDICIAL MAGISTRATE OF FIRST
CLASS -II,THRISSUR

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REVISION PETITIONER/PETITIONER/ACCUSED:

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POORNACHANDRAN

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AGED 45 YEARS
S/O. RAGHUNATH, KOLLANNUR HOUSE, POONKUNNAM
DESOM, VIA KUTTANKULANGARA TEMPLE, THRISSUR.
BY ADVS.N.M.MADHU
 T.R.SEBASTIAN
 C.S.RAJANI

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RESPONDENT/RESPONDENT/STATE:

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STATE OF KERALA

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REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM - 682 031.

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BY SRI.DENNIS DEVASSY, GOVT. PLEADER

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
HEARING ON 17.10.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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Crl.R.P. No. 101 of 2021

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-:2:-

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MARY JOSEPH, J.

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- - - - Crl.R.P. No. 101 of 2021

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Dated this the 17^th day of October, 2022

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O R D E R

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Challenge in the revision is against an order passed by Judicial First Class Magistrate Court-II, Thrissur on 10.08.2020 in CMP No.2916/2020 in C.C. No.2238/2013. Revision petitioner is

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the accused in C.C. No.2238/2013 and the petitioner in CMP No.2916/2020.

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CMP No.2916/2020 was filed under Section 258 Cr.P.C

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seeking for discharge of the accused who has allegedly committed an offence under Section 20(b) (ii) (A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’).

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52 gms of Ganja and Rs.900/- were allegedly seized from a polythene cover kept in the pocket of the pants worn by the accused and on being convinced from smelling of it that it is

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nothing but dry flower and leaves of Ganja, he was arrested from

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Crl.R.P. No. 101 of 2021

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-:3:-

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the spot and Crime No.549/13 for an offence punishable under Section 20(b) (ii) (A) NDPS Act was registered against him.

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Investigation was concluded in the case and a final report was laid before Judicial First Class Magistrate, No.II, Thrissur which registered C.C. No.2238/13 on its file, on it’s basis.

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The accused then filed Crl.M.P. No.2916/2020 under Section 258 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’) seeking to stop the proceedings and to discharge him, contending that the search of his body was held and the contraband was seized without complying with the mandate contemplated under Section 50 of the NDPS Act. According to him, the failure of the prosecution to comply with the requirements envisaged under Section 50 NDPS Act will badly affect the proposed trial and for the reason the Magistrate ought not to have let the proceedings in the case registered against him continue and proceed with the trial. According to him, the revision petitioner is entitled to get an order of discharge for the offence under Section 20(b) (ii) (A) NDPS Act, for which he stands chargesheeted.

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Crl.R.P. No. 101 of 2021

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-:4:-

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Magistrate had taken a view that seizure was from a public place and without a prior information received about possession of it by the accused and therefore compliance of Section 50 NDPS Act is not at all warranted. Accordingly the application filed by the petitioner was dismissed.

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Aggrieved thereby the accused is before this Court in the Revision Petition on hand. Whether the accused is entitled to apply for stoppage of proceedings of a case registered on the files of the Court and seek for a discharge is firstly to be looked into. For the purpose, Section 258 Cr.P.C is extracted :

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“ 258. Power to stop proceedings in certain cases. - In any summons- case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge.”

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True that under Section 258 Cr.P.C the Magistrate is empowered to stop the proceedings of a case pending on its file

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at any stage after recording reasons for doing so, and if the provision was invoked after recording the evidence of material

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Crl.R.P. No. 101 of 2021

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-:5:-

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witnesses in the case, a judgment of acquittal shall follow. If the invocation of the jurisdiction afroesaid is prior to the recording of evidence in the prosecution, the Magistrate shall order his release and it will have the impact of discharge.

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The power under Section 258 Cr.P.C. is meant to be exercised only in exceptional cases. The petitioner in the case on hand is not entitled to invoke the provision and has to face the trial. Though Section 50 is not complied with it will not make the contraband seized inadmissible in evidence. In Pooran Mal Etc vs

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Director Of Inspection [(1974) 1 SCC 345] the Apex Court held that the documents recovered in a search conducted in violation of the legal provisions will not lose its relevancy and that has to be decided during trial.

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The Constitutional Bench in State of Punjab v. Baldev Singh [AIR 1999 SC 2378] held that:

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“An illicit article seized from the person of an accused, during search conducted in violation of the safeguards provided in Section 50 of the Act, cannot by itself be used as admissible evidence of proof of unlawful possession of the contraband on the accused. Any other material/article recovered during that search may, however, be relied upon by the prosecution in other/independent proceedings against an accused

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-:6:-

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Crl.R.P. No. 101 of 2021

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notwithstanding the recovery of that material during an illegal search and its admissibility would depend upon the relevancy of that material and the facts and circumstances of that case.”

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Therefore, the evidence emanated in trial alone can render a judgment on conviction or acquittal of the petitioner in the case on hand. The trial court has rightly dismissed the application filed by the petitioner under Section 258 Cr.P.C. Interference is totally unwarranted.

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Crl.R.P. fails and is dismissed for the reason.

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Sd/MARY JOSEPH,

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ttb

Poornachandran v. State of Kerala

Case brief

What is this about?

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Poornachandran v. State of Kerala

Case brief

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What did the court decide?

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