The High Court of Kerala allowed appeals filed by accused convicted under the NDPS Act. The Court acquitted appellants due to procedural violations in body search compliance, inadmissibility of confessions under Section 53, and discrepancies in seizure and chain of custody.
Impugned judgment set aside; appellants acquitted; bail bonds discharged.
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 V.G.ARUN
WEDNESDAY, THE 9TH DAY OF AUGUST 2023 / 18TH SRAVANA, 1945 CRL.A NO. 1588 OF 2008
SC 518/2006 OF THE ADDITIONAL SESSIONS COURT-I, PALAKKAD
APPELLANT/S:
M.MUTHU S/O. P.M.MOKKARASE THEVAR, KARUKAPPIMALAI, K.MUTHALAKULAM PO, USALAMPETTI TALUK,, MADURAI DISTRICT
BY ADVS. SRI.C.C.THOMAS (SR.) SRI.NIREESH MATHEW
RESPONDENT/S:
STATE OF KERALA
DEPUTY RANGER, MUKKALI FOREST STATION,, PALAKKAD DISTRICT, REPRESENTED BY, PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM
OTHER PRESENT:
SR.PP.RENJITH GEORGE
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.07.2023, ALONG WITH CRL.A.1628/2008 AND CRL.A.2078/2008, THE COURT ON 09.08.2023 DELIVERED THE FOLLOWING:
Crl.A.Nos.1588, 1628 & 2078 of 2008
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 9TH DAY OF AUGUST 2023 / 18TH SRAVANA, 1945
CRL.A NO. 1628 OF 2008
SC 518/2006 OF THE ADDITIONAL SESSIONS COURT-I, PALAKKAD
APPELLANT/S:
RAJU
THAZHE ABBANNUR, PADAVAYAL VILLAGE,, THAVALAM P.O. BY ADV SRI.NIREESH MATHEW
RESPONDENT/S:
STATE OF KERALA
DEPUTY RANGER, MUKKALI FOREST STATION,, PALAKKAD DISTRICT, REPRESENTED BY PUBLIC, PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.07.2023, ALONG WITH CRL.A.1588/2008 AND CRL.A.2078/2008, THE COURT ON 09.08.2023 DELIVERED THE FOLLOWING:
Crl.A.Nos.1588, 1628 & 2078 of 2008
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 9TH DAY OF AUGUST 2023 / 18TH SRAVANA, 1945
CRL.A NO. 2078 OF 2008
SC 518/2006 OF THE ADDITIONAL SESSIONS COURT-I, PALAKKAD
APPELLANT/S:
SASI PADAVAYAL VILLAGE, THAVALAM (PO). BY ADV SRI.P.K.MOHANAN(PALAKKAD)
RESPONDENT/S:
STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.07.2023, ALONG WITH CRL.A.1588/2008 AND CRL.A.1628/2008, THE COURT ON 09.08.2023 DELIVERED THE FOLLOWING:
Crl.A.Nos.1588, 1628 & 2078 of 2008
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JUDGMENT
Dated this the 09th day of August, 2023
These appeals are filed by the accused in SC No.518 of 2006, aggrieved by their conviction for
the offence under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the Act' for short) and the consequent sentence of rigorous imprisonment of three years and fine of Rs.25,000/-. The brief facts, essential for deciding the appeals, are as under;
On 13.11.2005, by about 7.30 a.m, while the forest party led by PW1, the Deputy Ranger, Mukkali Forest Station, was engaged in checking of vehicles near the Mukkali Forest Check Post,
they found the appellants travelling on a motorcycle towards Mannnarkkad, with the second appellant sitting in the middle, holding a bag on his lap. On questioning, the appellants revealed that the bag contained ganja. Thereupon, the bag
Crl.A.Nos.1588, 1628 & 2078 of 2008
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and the packet inside were weighed and found to
be 5.200 kgs. The packet inside the bag was thereafter opened and 50 grams of ganja taken as sample. Thereafter, PW1 informed the appellants that he is going to search their body and asked whether they wanted the body search to be conducted in the presence of a Gazetted Officer or Magistrate. The appellants having answered in the negative, Ext.P1 consent for conducting personal search was recorded. After completing the statutory formalities, including preparation of Ext.P13 seizure mahazar, the appellants were arrested and taken to the Mukkali Forest Station. On reaching the Station, Exts.P3 to P5 confessional statements of the appellants were recorded. Thereafter, the sample and balance contraband were produced before the
jurisdictional court under Ext.P8 property list.
The appellants were also produced before court and remanded to judicial custody. After obtaining
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bail, the appellants gave Exts.P9 to P11 confessional statements before the investigating officer. The sample was forwarded to the Chemical Analyst and on testing, was found to be ganja.
impugned judgment, I am taken aback by the manner in which the investigation and the
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prosecution was conducted. The follies in the
investigation starts with the indifferent manner in which the seizure of the contraband was effected. The seizure mahazar shows that the ganja was weighed along with the big shopper bag in which it was being carried. The ganja, as such, was never weighed separately. The detecting officer (PW1) claims to have collected 50 grams for the purpose of analysis. Surprisingly, neither the big shopper bag nor the balance ganja were produced in court or marked as material objects. The next mistake committed by the detecting officer is the manner in which the body search of the accused was conducted. Ext.P1 is stated to be the document prepared on the basis of the consent for body search given by the accused. Ext.P1 statement is not written by the accused and on the other hand, is prepared by the detecting officer, stating that the accused had consented for PW1 himself conducting the search.
Crl.A.Nos.1588, 1628 & 2078 of 2008
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The signatures of the accused are seen affixed under the statement. The only witness to the statement is PW2, the official who had accompanied PW1. Even going by Ext.P1, all that was done by PW1 was to ask the accused whether they wanted presence of a Gazetted Officer or Magistrate during body search. In this context, it may be worthwhile to refer to the law on the point declared by the Apex Court through a catena of decisions, including Vijaysinh Chandubha
Jadeja v. State of Gujarat [(2011) 1 SCC 609] . Paragraphs 29 to 32 of which read as under;
“29.In view of the foregoing discussion, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be
Crl.A.Nos.1588, 1628 & 2078 of 2008
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searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.
30. As observed in Presidential Poll, In re[(1974) 2 SCC 33] : (SCC p. 49, para 13)
“13. … It is the duty of the courts to get at the real intention of the legislature by carefully attending [to] the whole scope of the provision to be construed. ‘The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole.’ ”
31. We are of the opinion that the concept of “substantial compliance” with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said section in Joseph Fernandez[(2000) 1 SCC
Crl.A.Nos.1588, 1628 & 2078 of 2008
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707 : 2000 SCC (Cri) 300] andPrabha Shankar Dubey [(2004) 2 SCC 56 : 2004 SCC (Cri) 420] is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh case [(1999) 6 SCC 172 : 1999 SCC (Cri) 1080] . Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf.
The circumstances under which Ext.P1 was prepared
and the manner in which it is worded, leaves no
Crl.A.Nos.1588, 1628 & 2078 of 2008
room for doubt that there was only farcical compliance of the mandatory requirement of Section 50 of the Act.
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arriving at the finding of guilt. The confessional statements can no longer be relied on in view of the law laid down in Tofan Singh v.
State of T.N [(2021) 4 SCC 1] , wherein the Apex Court has declared that the officers empowered under Section 53 of the Act are police officers for the purpose of attracting bar under Section 25 of the Evidence Act against admissibility of confessions. It is categorically held that any confessional statement made to officers under Section 53 cannot be taken into account in order to convict an accused, except to the extent found relevant under Section 53-A, that too, only when
it is corroborated in accordance with law. Section 53A, dealing with relevancy of confessional statements under certain
circumstances, has no application in the case at hand. Hence, the embargo against acting upon the confessional statements of the accused applies with full force.
Crl.A.Nos.1588, 1628 & 2078 of 2008
the manner in which the sample was dealt with after its collection. In his evidence, PW1 has stated that the sample (MO1) was produced in court on 13.11.2005 itself. The said statement cannot be accepted since Ext.P8 property list was received in the Sessions Court only on 17.11.2005. There is absolutely no evidence as to what happened to the sample between 13.11.2005 and 17.11.2005. Even the forwarding note, under which the sample was sent from court for chemical analysis, is not marked in evidence. The records reveal that the sample was sent under a forwarding note on 17.01.2006. As per Ext.P12 report, the sample was received at Chemical Analysis Laboratory only on 25.01.2006. The prosecution has no explanation for the sample sent on 17.01.2006, having reached the Chemical Analyst only on 25.01.2006.
Crl.A.Nos.1588, 1628 & 2078 of 2008
expressed by the Supreme Court in State of Uttar
Pradesh v Hansraj @ Hansu [(2018) 18 SCC 355]
assumes relevance;
“7.The High Court has also pointed out that it was incumbent on the part of the prosecution to lead the evidence to show as to how and in what conditions the articles were preserved at the police station and how safely they were taken from there to the respective chemical examiners by its carriers. The learned counsel for the State has submitted that the investigating officer in this particular case has passed away and, therefore, the prosecution was handicapped in adducing the necessary evidence. Notwithstanding the death of the investigating officer, nothing prevented the prosecution from examining any other witness who was associated with the investigation and adducing necessary evidence to prove as to how and in what conditions the articles were preserved at the police station/police station godown.”
Faijas v. State of Kerala [ 2020 KHC 5259] and
held as under;
“39. The alleged occurrence was on
Crl.A.Nos.1588, 1628 & 2078 of 2008
15/11/2011. Ext.P8 property list shows that the seized substances were produced in the court only on 19/11/2011. The prosecution has not explained the reason for the delay in producing the seized substances, including the samples, before the court. It is not explained what prevented the detecting officer or the investigating officer to produce the seized articles in the court immediately after the seizure. In view of the unexplained delay in producing the seized articles before the court, tampering with such articles at the police station cannot be ruled out.”
While the prosecution case was rendered shaky by the above factors, it got shattered by the 50 grams of ganja collected as sample (MO1), becoming 33.01 grams by the time it reached the Chemical Analyst.
infirmities like failure to produce and mark the arrest memo, failure to affix image of the sample seal in the seizure mahazar, failure to produce
sample seal along with the material object,
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absence of independent witnesses, failure to
prove conscious possession by first and second accused etc are also highlighted by the learned Counsel for the appellants, the inconsistencies discussed earlier being sufficient to discard the prosecution case in its entirety, I am not delving into those contentions. It has to be stated that the investigation was conducted in a haphazard manner. As regards the prosecution, less said the better. It can therefore be unhesitatingly held that the trial court went
wrong in convicting the appellants based on the farcical investigation and lopsided prosecution.
In the result, the appeals are allowed, the
impugned judgment set aside and the appellants acquitted. The bail bonds executed by the appellants and sureties will stand discharged.
Sd/-
V.G.ARUN JUDGE
Scl/
3 issues framed by the court
Whether the failure to strictly comply with Section 50 of the NDPS Act regarding body search vitiates the recovery and conviction.
Whether confessional statements recorded under Section 53 of the NDPS Act are admissible for conviction pursuant to Section 25 of the Evidence Act.
Whether gross procedural irregularities and discrepancies regarding the seizure and disposal of contraband warrant acquittal.
Colour shows how this judgement treated each authority
Vijaysinh Chandubha Jadeja v. State of GujaratExplained¶69
Vijaysinh Chandubha Jadeja v. State of Gujarat [(2011) 1 SCC 609] · Who else cites this
Presidential Poll, In reExplained¶75
Presidential Poll, In re [(1974) 2 SCC 33] · Who else cites this
Joseph FernandezReferred¶77
Joseph Fernandez [(2000) 1 SCC 707] · Who else cites this
Prabha Shankar DubeyReferred¶77
Prabha Shankar Dubey [(2004) 2 SCC 56] · Who else cites this
Baldev SinghReferred¶77
Baldev Singh case [(1999) 6 SCC 172] · Who else cites this
Tofan Singh v. State of T.NApplied¶90
Tofan Singh v. State of T.N [(2021) 4 SCC 1] · Who else cites this
State of Uttar Pradesh v Hansraj @ HansuExplained¶99
State of Uttar Pradesh v Hansraj @ Hansu [(2018) 18 SCC 355] · Who else cites this
Faijas v. State of KeralaApplied¶104
Faijas v. State of Kerala [2020 KHC 5259]
3 provisions across 1 enactments
M.Muthu
Raju
Sasi
State of Kerala
V.G.ArII
ARUN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
V.G.ArII and ARUN
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