Partly allowed

Basil v. State of Kerala

Kerala HC13 Dec 2023CRL.A/857/2015

Case brief

AI extract

What is this about?

Appellants convicted under NDPS Act for transporting 267 kg of ganja in a lorry. High Court upheld conviction under Section 20(b)(ii)(C) but set aside Section 25 conviction against A3 as ownership of the vehicle was not proved. Appeal partly allowed.

What did the court decide?

Conviction and sentence of the second appellant (A3) under Section 25 of the NDPS Act were set aside and he was acquitted of that offence. Conviction and sentence of both appellants under Section 20(b

Basil Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2023)

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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 SOPHY THOMAS WEDNESDAY, THE 13^TH DAY OF DECEMBER 2023/22ND AGRAHAYANA, 1945 CRL.A NO.857 OF 2015

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AGAINSTTHEJUDGMENTINSC(NDPS)18/2013OFSPECIALJUDGEFOR
NDPSACTCASES,THODUPUZHADATED10.08.2015
CRIMENO.1/2011OFVANDIPERIYAREXCISERANGEOFFICE,IDUKKI

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APPELLANTS/ACCUSED No.2 AND 3:

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1 BASIL

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S/O.GEORGE,POONTHURAYILHOUSE,
KOMBODINJALKARA,KONNATHADYVILLAGE,
UDUMBANCHOLA,IDUKKI.

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2 SUBRAMANI,

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S/O.CHINNAKARUPPAYYA,NALLATHERUVU,
KOLLAPPALLLIKARA,THENIVILLAGE,
TAMILNADU.

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BYADVS.
RENJITHB.MARAR
LAKSHMI.N.KAIMAL
V.KRISHNADAS(K-541)

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RESPONDENT/COMPLAINANT:

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STATEOFKERALA
REPRESENTEDBYTHEASSISTANTEXCISE
COMMISSIONER,IDUKKI,BYPUBLIC
PROSECUTOR,HIGHCOURTOFKERALA,
ERNAKULAM,PIN-682031.

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BYSRI.M.C.ASHI,PUBLICPROSECUTOR

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THISCRIMINALAPPEALHAVINGBEENFINALLYHEARDON
28.10.2023,THECOURTON13.12.2023DELIVEREDTHEFOLLOWING:

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Crl.Appeal No.857 of 2015

“C.R”

J U D G M E N T

This appeal is at the instance of accused Nos.2 and 3 in SC (NDPS) No.18 of 2013 on the file of Special Judge for NDPS Act cases, Thodupuzha, impugning the judgment dated 10.08.2015, by which the appellants (A2 & A3) were convicted and sentenced under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as ‘the NDPS Act’), and in addition the 2^nd appellant (A3) was convicted and sentenced under Section 25 of the NDPS Act also.

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The prosecution case is that, on 17.05.2011, at 8.30 p.m,

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accused Nos.1 to 3 were found transporting illegally 267 kilograms of ganja, in TN-51-8069 lorry owned by A3, in a secret chamber behind the driver’s cabin. PW1-the Excise Inspector and party attached to Excise Check Post, Kumily, detected the offence while conducting vehicle checking duty at the check post. During investigation, involvement of A4 to A8 also in the crime was made out, and so, complaint was filed by the Assistant Excise Commissioner, Idukki, against all the eight accused, under Sections 20(b)(ii)(C), 25, 27A and 29 of the NDPS Act.

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A1 absconded after getting bail, and so his case was split

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up.

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A2 to A8 appeared before the trial court, and charge was framed against them under Sections 20(b)(ii)(C), 25, 27A and 29 of the NDPS Act, to which, they pleaded not guilty and claimed to be tried.

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Thereupon prosecution examined PWs 1 to 20, marked Exts.P1 to P38 and identified M.Os 1 to 167, to prove its case.

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CW1, an Advocate Commissioner was also examined and Ext.C1 and C1(a) series were marked through him.

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On closure of evidence of the complainant, A2 to A8 were questioned under Section 313(1)(b) of Cr.P.C, and they denied all the incriminating circumstances brought on record. As no grounds were made out to acquit the accused under Section 232 of Cr.P.C, they were called upon to adduce defence evidence if any, but no evidence was adduced from their side.

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On analysing the facts and evidence, and on hearing the rival contentions from either side, the trial court found A4 to A8 not guilty of the offences alleged against them, and so they were acquitted under Section 235(1) of Cr.P.C. But, the trial court found A2 and A3 guilty under Section 20(b)(ii)(C) of the NDPS Act, and in addition A3 was found guilty under Section 25 of the NDPS Act

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also. Each of them were convicted and sentenced to undergo rigorous imprisonment for ten years and fine of Rs.1 lakh under Section 20(b)(ii)(C) of the NDPS Act with a default sentence of rigorous imprisonment for one year each. In addition, A3 was convicted and sentenced under Section 25 of the NDPS Act, to undergo rigorous imprisonment for ten years and fine of Rs.1 lakh with a default sentence of rigorous imprisonment for one year. A3 could suffer the substantive sentences concurrently, and set off was allowed to both, for the period undergone in custody during trial.

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Aggrieved by the conviction and sentence, A2 and A3 preferred this appeal, disputing the legality and propriety of the judgment.

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Heard learned counsel for the appellants and learned Public Prosecutor.

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The grounds urged by the appellants for assailing the judgment of conviction and sentence are manifold. The first ground alleged is, non-compliance of Section 42 of the NDPS Act which, according to them, is sufficient to vitiate the trial. Learned counsel for the appellants would contend that, since PW1 conducted search in a private conveyance after sunset, he would

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have obtained search warrant for conducting the search, especially when he had reasons to believe, that, contraband was concealed in the vehicle. According to him, even if the recovery was a chance recovery, as soon as PW1 got suspicion as to the concealment of contraband in the vehicle, at least from that point onwards, he ought to have complied with the mandate of Section 42 of the NDPS Act.

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Learned counsel for the appellants is relying on the decisions Karnail Singh v. State of Haryana [(2009) 8 SCC 539] and Kishan Chand v. State of Haryana [(2013) 2 SCC 502] in order to substantiate his argument. In Karnail Singh’s case cited supra, the Apex Court held that, in special circumstances and emergent situations (when the officer is on the move), and recording of information is not practical prior to search and seizure, and would be detrimental to effectiveness of the search and seizure concerned, the requirement of writing down and conveying information to superior officer, may be postponed by a reasonable period, which may even after the search, entry and seizure . When the information was received, if the officer was not in the police station, and it was received while the officer was on the move either on patrol duty or otherwise, either by mobile phone, or other

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means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical, to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the superior officer. It was further held that, while total non-compliance with the requirements of Section 42(1) and (2) is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42 of the NDPS Act.

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In Kishan Chand’s case [(2013) 2 SCC 502] , it was

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held by the Apex Court that, compliance of Section 42 of the NDPS Act is mandatory, and failure to take down the information in writing and sending the report forthwith to the immediate superior officer may cause prejudice to the accused.

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Relying on the decision Mohinder Kumar v. State, Panaji, Goa [(1998) 8 SCC 655] , learned counsel for the appellants contended that, even if the recovery was a chance recovery effected by an empowered officer specified under Section 42 of the NDPS Act, from the stage of that chance

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recovery, investigation must be carried out in accordance with the provisions of the Act. In the case on hand, learned counsel for the appellants would say that, when PW1 got suspicion as to concealment of contraband in the vehicle, from the answers given, gestures or demeanors of the appellants, at least from that stage onwards, investigation must have been carried out in accordance with the provisions of Section 42 of the NDPS Act. From the stage, he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panchas, he was under an obligation to proceed further in the matter, in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sunset and sunrise, he must record the grounds of his belief, and he shall forward a copy of the grounds to his superior officer, as required under Section 42(2) of the NDPS Act.

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In Mohinder Kumar’s case [(1998) 8 SCC 655] ,

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search was conducted in a house and so, it will squarely come under the sweep of Section 42 of the NDPS Act. But, in the case on hand, the seizure was effected from a vehicle on transit, that too in a public place, which will not come under the sweep of Section 42 of the NDPS Act.

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Relying on the deposition of PW1, that, while intercepting

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TN-51-8069 lorry during vehicle checking duty at Kumily Excise Check Post, he sensed suspicion on questioning accused Nos.1 to 3, who were in the lorry, and so, he decided to inspect the lorry suspecting concealment of any contraband articles inside, learned counsel for the appellants would argue that, even at that point of time, PW1 ought to have complied with Section 42 of the NDPS Act and since it was not done, there is utter violation of that mandatory provision, which, according to him, will vitiate the trial.

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Learned Public Prosecutor would counter the argument put forward by the learned counsel for the appellants, contending that, when the recovery is a chance recovery and not based on any prior information received, Section 42 of the NDPS Act has no application at all. He relied on the decision Kallu Khan v. State of Rajasthan [2021 (6) KLT Online 1028 (SC)] in which the Apex Court held that, where the search and seizure was made from the vehicle used, by way of chance recovery from public road, the provisions of Section 43 of the NDPS Act would apply. As per Section 43 of the NDPS Act, any officer of any of the departments, specified in Section 42, is having power of seizure and arrest of the accused from a public place, or in transit of any narcotic drug or psychiatric substance or controlled substance .

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In the case on hand, admittedly, the recovery was made not based on any previous information received by PW1. During normal routine vehicle checking duty undertaken at the check post, TN-51-8069 lorry was checked, and on questioning A1 to A3, who were in the lorry, PW1 and excise party sensed doubt regarding concealment of contraband articles inside the lorry and so, they entered the lorry and found out a secret chamber behind the driver’s cabin, and recovered 165 packets of ganja packed inside, and it was weighing 267 kilograms in total. So, it was absolutely a chance recovery without any prior information and so, there was no need for compliance of Section 42 of the NDPS Act.

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Now let us see the basic distinction between Sections 42 and 43 of the NDPS Act.

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Section 42 of the NDPS Act reads thus:

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“ 42. Power of entry, search, seizure and arrest without warrant or authorisation .

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(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) to the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or

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any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any Narcotic Drug, or Psychotropic Substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset -

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(a) enter into and search any such building, conveyance or place ;

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(b) in case of resistance, break open any door and remove any obstacle to such entry;

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(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and

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(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:

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PROVIDED that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of Sub-Inspector:

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PROVIDED FURTHER that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

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(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior”.

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Obviously, Section 42 deals with power of entry, search, seizure and arrest without warrant or authorisation. When an officer specified in Section 42 has reason to believe from his personal knowledge or information given by any person, that any narcotic drug or psychotropic substance or controlled substance which will attract an offence punishable under the Act or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article liable for seizure/freezing/forfeiture

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under Chapter VA are kept or concealed in any building, conveyance or enclosed place, he may, between sunrise and sunset, enter into and search any such building, conveyance or place, and if he has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. The legislature has intentionally aligned the powers under Section 42 in the sequence of entry, search, seizure and arrest. The place where the search is to be conducted is specified as ‘any building, conveyance or enclosed place’.

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At this juncture, it is worthwhile to quote Section 100 of Cr.P.C which reads thus:

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“ 100. Persons in charge of closed place to allow search :-(1)Whenever any place liable to search or inspection under this Chapter is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein.

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(2) xxx

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(3) xxx

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(4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

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(5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.

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(6) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person.

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(7) When any person is searched under sub-section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person. (8) xxx”.

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Incorporation of all these precautions are with a view to protect the persons who are living in the building to be searched causing least inconvenience to the inhabitants of that building and

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to assure that search is being conducted in a fair manner in the

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presence of respectable witnesses, and no loss or hardship is caused to anybody by that search. These statutory guidelines are to be followed when search is being conducted in a closed place.

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In State of Punjab v. Baldev Singh [(1999) 6 SCC

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172] , a Constitution Bench of the Apex Court held that, the provisions of Sections 100 and 165 Cr.P.C are not inconsistent with the provisions of the NDPS Act, and are applicable for effecting search, seizure or arrest under the NDPS Act also.Section 51 of the NDPS Act says provisions of the Code of Criminal Procedure, 1973 to apply to warrants, arrests, searches and seizures, insofar as they are not inconsistent with the provisions of the Act. So, while conducting search and seizure under the NDPS Act, in addition to the safeguards provided under the Code of Criminal Procedure, the safeguards provided under the NDPS Act are also required to be followed.

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The entry and search envisaged under Section 42 of the NDPS Act is ‘any building, conveyance or enclosed place’. Learned counsel for the appellants would say that, since PW1 and excise party conducted search in a ‘conveyance’, on getting suspicion that some contraband is concealed inside, Section 42 will come into action, even if no prior information was received to be recorded in

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writing.

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At this point, we have to go through Section 43 of the NDPS Act also, which reads thus:

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43. Power of seizure and arrest in public place .

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Any officer of any of the departments mentioned in section 42 may-

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(a) seize in any public place or in transit, any Narcotic Drug or Psychotropic Substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act;

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(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any Narcotic Drug or Psychotropic Substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.

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Explanation: For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.

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Section 43 of the NDPS Act says about the power of

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seizure of any narcotic drug or psychotropic substance or controlled substance in any public place or in transit, by an officer mentioned in Section 42, if he has reason to believe, an offence punishable under this Act has been committed and, along with such drug or substance, he can seize any animal or conveyance or article liable to confiscation or any document or other article which may furnish evidence of commission of offence or which will furnish evidence of holding any illegally acquired property liable for seizure or freezing or forfeiture under Chapter VA of the Act. Moreover, he can detain and search any person if he has reason to believe that such person is in possession of any narcotic drug or psychotropic substance or controlled substance which is unlawful, and can arrest him, or any other person in his company.

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Obviously, Section 42 of the NDPS Act is a safeguard for entry, search and seizure in any building, conveyance or enclosed place, but Section 43 of the NDPS Act is with respect to the power of seizure and arrest in any public place or in transit. In the Explanation to Section 43, the expression ‘public place’ is further qualified by including any public conveyance, hotel, shop or other place intended for use by, or accessible to, the public. The explanation doesn’t say that the expression public place means any

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public conveyance, hotel, shop or other place intended for use by, or accessible to, the public. But it says public place includes any public conveyance, hotel, shop or other place intended for use by, or accessible to, the public.

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The expression ‘public place’ is not defined in the Criminal Procedure Code or in the Penal Code. It is not defined in NDPS Act also. In Queen v. Wellard [(1884) 14 QBD 63, Grose, J. laid down that a public place “ is a place where the public go, no matter whether they have a right to go or not” , and this definition has been accepted by subsequent judicial decisions both in India and in England. A place in order to be public, must, therefore, be open to the public i.e. a place to which the public have access by right, permission, usage or otherwise.

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The Apex Court in Satvinder Singh @ Satvinder Singh Saluja and others v. State of Bihar [2019 KHC 6613 : (2019)

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7 SCC 89] held that, when the word ‘place’ includes vehicle, the word ‘public place’ has to be interpreted in the same light. While analysing the definition of ‘public place’ in Section 2(17A) of the Bihar Excise (Amendment) Act, 2016, the Apex Court observed that, when a private vehicle is intercepted when it was on the public road, it will come under the definition of a public place.

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When a private vehicle is passing through a public road, it cannot be accepted that public have no access. It is true that public may not have access to private vehicles, as a matter of right, but definitely public have opportunity to approach the private vehicle while it is on the public road. So, a private vehicle on public road was considered to be public place under Section 2(17A) of the Bihar Excise (Amendment) Act, 2016.

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The word ‘access’ is defined in Black’s Law Dictionary in the following words:

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“Access: - A right, opportunity or ability to enter, approach, pass to and from, or communicate with access to the courts”.

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This Court in Rajendran Pillai v. State represented by the Station House Officer [2019 (4) KLT 438] , held that a public passenger vehicle or goods vehicle or a private vehicle parked in any public place were also to be treated as public places for the purpose of Section 15C of the Abkari Act, going by Explanation II of Section 15C of the said Act.

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Section 2 (viii) of the NDPS Act defines ‘conveyance’ as follows:

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Section 2(viii): ‘Conveyance means conveyance of any description whatsoever, and includes any aircraft,

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vehicle or vessel’.

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The word ‘conveyance’ is used both in Section 42 and 43

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of the NDPS Act. Section 42 deals with the power of an empowered officer to conduct search, in any building, conveyance or enclosed place, when he has reason to believe, on personal knowledge or on information given by any person, that an offence under the NDPS Act has been committed, in respect of any narcotic drug or psychotropic substance or controlled substance etc etc., which is liable for seizure or freezing or forfeiture under Chapter VA of the Act, and such narcotic drug, psychotropic substance etc etc are kept or concealed in such building, conveyance or enclosed place. The section further says that the empowered officer has to take down the information in writing and proceed for search, if it is between sunrise and sunset and the 2^nd proviso says, if the search is between sunset and sunrise, and the search warrant or authorisation cannot be obtained, without affording opportunity for the concealment of evidence or facility for the escape of the offender, he may enter and search such building, conveyance or enclosed place after recording the grounds of his belief. In both situations i.e. search between sunrise and sunset or between sunset and sunrise, if the search is based on an information, either

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personal knowledge or information received from other person, Section 42(2) has to be complied with, that copy of the information in writing under Section 42(1) or the grounds of belief recorded under the 2^nd proviso, shall be sent to his immediate official superior, within 72 hours.

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Section 43 of the NDPS Act is regarding the power of seizure and arrest in public place, or in transit. When an officer authorised under Section 42 has reason to believe that an offence punishable under the NDPS Act has been committed with respect to any narcotic drug or psychotropic substance or controlled substance, he can seize, in any public place or in transit, any such drug or substance, and along with such drug or substance, he can seize any animal or conveyance or article liable to confiscation under this Act etc etc. which is liable for seizure or freezing or forfeiture under Chapter VA of the Act.

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When the transit mentioned in Section 43 of the NDPS Act is through any animal or conveyance, such animal or conveyance are also liable to be seized/freezed/forfeited under Chapter VA of the Act. The essential ingredient or pre-requisite under Section 43 is that, the seizure must be in a public place OR in transit. From Section 43 of the NDPS Act, we will not get any

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classification of the ‘conveyance’ such as private vehicle/public transport vehicle/goods vehicle etc. as far as seizure in transit is concerned. The Explanation under Section 43 was to the effect of qualifying a public place to include any public conveyance, hotel, shop etc. etc. Public conveyance means a conveyance that the public or portion of the public, has access to and a right to use for transportation, including an airline, railroad, bus, boat or other public conveyance.

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Here in this case, we are not concerned about any public conveyance so as to treat it as a public place under Section 43, but our concern is about transit of a narcotic drug from Tamil Nadu to Kerala, using a conveyance, and the seizure was made at Excise Check Post, Kumily, which is undisputably a public place. Going by the section, even if the conveyance is a private conveyance, if it is in transit, it will attract Section 43. A private conveyance, not in transit but in stationary condition, if it is found in a public place, and contraband is concealed in it, then also an officer mentioned under Section 42 is having power to seize the contraband without complying with the requirements under Section 42 going by the first limb of Section 43(a). We have found in Satvinder Singh’s case cited supra, the Apex Court extending the definition of public

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place, to a private vehicle found on the public road. So, if the contraband is found in a conveyance, in a public place either it be a public carriage vehicle, private vehicle or goods vehicle, Section 43 will come into play, as the seizure has to be treated as from a public place. But, if a conveyance not in transit is found in a private place, then Section 43 will have no application, and procedural formalities under Section 42 have to be complied with.

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Learned counsel for the appellants would contend that, the prosecution failed to establish before court that, the vehicle in question was a public carriage and so, it cannot be treated as a public conveyance and so much so, Section 43 will not be attracted. But, the appellants do not have a case that, at the time of seizure the vehicle was not in a public place, and they have also no case that the vehicle was not in transit. Admittedly, the vehicle came from Tamil Nadu and when it reached the Excise Check Post, Kumily, PW1 and excise party checked the same at the check post, which is a public place, and seized the contraband from the secret chamber of the lorry. So, in any view of the matter, Section 42 will have no application.

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Learned counsel for the appellants would argue that,

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only if the vehicle from which the contraband was seized is a public

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conveyance or a vehicle having permit for public carriage, then only the empowered officer can search and seize the contraband as per Section 43 of the NDPS Act. If that argument is accepted, then private vehicles carrying contraband articles could not be seized, without complying with the formalities under Section 42(1) and 42(2) of the NDPS Act even if contraband was seen transited in that vehicle through a public road. It is a matter of common knowledge that drug abuse is a social menace, and drug trafficking is rampant, and huge quantity of narcotic drugs/psychotropic substances etc. are being transported to Kerala from other States. Evidently, Section 43 of the NDPS Act is to deal with such situations.

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In Boota Singh and others v. State of Haryana [2021 KHC Online 6240 : AIR 2021 SC 1913] , the Apex Court considered whether Section 42 or 43 of the NDPS Act will have application, when the accused persons were found selling poppy straw from a private jeep parked on a kacha path. It was not a disputed fact in that case, that the jeep was a private vehicle belonging to one of the accused and it was not a public conveyance, and it was in a parked condition on a kacha road, and the vehicle was not in transit. So, the Apex Court found that, there

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was non-compliance of Section 42 of the NDPS Act, vitiating trial.

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In Boota Singh’s case cited supra, the police officials received secret information regarding selling of poppy straw by the accused, in a vehicle on a kacha path, and on raid they found the accused selling poppy straw sitting in a jeep, which was a private jeep owned by one of the accused. In that case, the place where the jeep was found parked, was not stated to be a public place, and the jeep was not in transit also. So, the Apex Court found that Section 43 of the NDPS Act had no application in that case.

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Relying on Boota Singh’s case [2021 KHC Online 6240], the High Court of Punjab and Haryana in Mandeep Kaur v. State of Punjab (MANU/PH/1756/2022 : 2022 Live Law (PH)

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235] , drew the distinction between Sections 42 and 43 of the NDPS Act. The court observed that, ‘though the distinctions are rather fine distinctions, but the same would have entirely different ramifications. In Boota Singh’s case, the accused were selling poppy straw from a jeep ‘parked’ on an unmettaled path whereas in the present case the vehicle was on the move i.e. the contraband was in ‘transit’ ’ . Another material distinction found

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was that, in case of a search of vehicle in transit, there is no requirement of obtaining any search warrant, even if search is

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conducted after sunset by a non-gazetted officer unlike a case of search of a building, conveyance or an enclosed place. Boota Singh’s case cited supra only interpreted the word ‘public place’ as existing in Section 43 of the NDPS Act, and not the word ‘transit’ which is used alternatively with the word public place as ‘public place or in transit’. The distinction between the word ‘conveyance’ as existing in Section 42 of the NDPS Act and conveyance ‘in transit’ as existing in Section 43 of the NDPS Act has been highlighted in Dharminder Kumar v. State of Punjab [2002 SCC Online P&H 762: (2002) 4 RCR (Cri) 278 (DB)] .

¶158

In paragraph 9 of Dharminder Kumar’s case [2002 SCC Online P&H 762], it is stated thus:

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“9. Powers of entry, search and seizure are contained in Chapter V of the Act. The scheme of the Act contemplates two categories of situation i.e. where the contrabands are found in "any building, conveyance or enclosed place" and "any public place or in transit". For the first contingency, Section 42 of the Act is applicable, whereas if any seizure is required to be made from any public place then it is Section 43 of the Act which would be applicable. Section 42 of the Act requires writing down of information if empowered officials have reason to believe from personal knowledge or information that any illegal acquired property is kept or concealed in a building, conveyance or enclosed place….”.

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44. Paragraph 10 of the said decision reads as follows:

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“While Section 42 empowers the officers of the specified departments to carry out search, seizure and arrest in any building, conveyance or enclosed place, Section 43 deals with the similar power of seizure and arrest in public places. Powers under both these sections can be exercised if the concerned officer has reason to believe that some offence relating to narcotic drugs or psychotropic substances has been committed. Section 49 is another section in the series which empowers officers to stop and search animals and conveyance used for illegal transport of narcotic drugs or psychotropic substances. The words building, conveyance and enclosed place as used in Section 42 have been used for the specific purpose of protecting the persons who are living in the buildings, conveyance and enclosed place. The Legislature in its wisdom considered proper to draw a demarcating line between building, conveyance and enclosed place on one side and public place or in transit on the other side. The words have been specifically mentioned to show the demarcating line between the two otherwise, the legislature could have used any place instead of narrating the words ‘building, conveyance or enclosed place’. Even a private open place does not fall within the purview of Section 42 unless it is enclosed. So, this demarcating line will have to be kept in mind. Under Section 43 of the Act, the words used are ‘any public place or in transit’. The requirement of recording of information in writing and communicating it to superiors is intended to protect the possible harassment to residents and to maintain personal liberty and human dignity. The term conveyance used in Section 42 is to be understood as ejusdum generis to the terms building or enclosed

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place. It is not every conveyance whether in public or private that would fall within the scope of Section 42 of the Act. A conveyance in a public place would fall within Section 43 of the Act and Section 49 gives power to the empowered officer to stop such conveyance for the purpose of search”.

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45. Paragraph 16 of the said decision further reads as

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follows:

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“16. Thus, it is evident that if seizure is made from any animal, conveyance or article in a public place or in transit then Section 43 of the Act would be applicable. Section 43 and Section 42 of the Act operate in different spheres. Since the conveyance has been specifically included in Section 43 of the Act also, therefore, the conveyance which is found in a public place or in transit would be covered under the provisions of Section 43 of the Act whereas conveyance used in Section 42 of the Act has to be read as conveyance which is other than in a public place. This interpretation is the only harmonious interpretation of Sections 42 and 43 of the Act”.

¶170

In State of Punjab v. Baldev Singh [(1999) 6 SCC 172 : 1999 KHC 707] , a Constitution Bench of the Hon’ble Supreme Court compared the provisions of Sections 42 and 43 of the NDPS Act and in paragraph 10 of the said judgment, it was held that, ‘the material difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down of information

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received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful’ .

¶174

In Baldev Singh’s case also, arrest of persons found in possession of narcotic drugs, psychotropic substance etc. and seizure of animals, conveyance, articles etc. from a public place under Section 43 was dealt with, and not interpreted the word ‘transit’ which is used alternatively with word ‘public place’, as ‘public place or in transit’.

¶175

A harmonious interpretation of Sections 42 and 43 of the NDPS Act would lead to the safe conclusion that if a conveyance, whether private or public, is intercepted or apprehended in a public place or in transit, then the provisions of Section 42 would not be applicable. When the vehicle is in transit or in a public place, then the provisions of Section 43 will get attracted, and Section 42 will have no application. In the case on hand, since the seizure was effected from a vehicle in a public place, that too in transit, Section

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42 will have no application and hence non-compliance of Section 42 urged by the learned counsel for the appellants is liable to be turned down.

¶179

The next contention taken up by the appellants is that, there was violation of the mandatory provisions of Section 50 of the NDPS Act while conducting the body search of the appellants and hence the seizure stands vitiated. Learned counsel for the appellants drew the attention of this Court to the decisions of the Apex Court in State of Rajasthan v. Parmanand and another [(2014) 5 SCC 345] and State of Punjab v. Baldev Singh [(1999) 6 SCC 172] to say that, when the body of a person is searched, compliance of Section 50 of the NDPS Act is mandatory. According to them, the person whose body is to be searched has to be informed of his valuable right to be searched in presence of a Gazetted Officer/Magistrate.

¶180

Section 50 of the NDPS Act reads as follows:

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“50. Conditions under which search of persons

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shall be conducted.- (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest

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Magistrate.

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(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

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(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) xxx

(5) xxx

(6) xxx”

In Parmanand’s case [(2014) 5 SCC 345] cited

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supra, the Apex Court held that, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But, if the bag carried by him is searched, and his person is also searched, Section 50 will have application.

¶193

In Baldev Singh’s case [(1999) 6 SCC 172] , the Apex Court held that, to be searched before a Gazetted Officer or a Magistrate, if the suspect so requires, is an extremely valuable right which the legislature has given to the person concerned having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act. It appears to have been incorporated in the Act, keeping in view, the severity of the

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punishment. The search before a Gazetted Officer or a Magistrate would impact much more authenticity and creditworthiness to the search and seizure proceedings. It would also strengthen the prosecution case. Section 50 has been incorporated to ensure that, persons are only searched with a good cause and also with a view to maintain the veracity of evidence derived from such search.

¶197

Learned counsel for the appellants is challenging the search and seizure pointing out the discrepancy regarding the time when PW17 Gazetted Officer reached the place of occurrence and the time of occurrence mentioned in the complaint. Ext.P1 mahazar shows that PW17 reached the place at 8.20 p.m, and in his presence the body search of the appellants was conducted by PW1. But, the prosecution case is that, the incident occurred at 8.30 p.m on 17.05.2011. Ext.P8 is the notice given to PW17 to witness the body search of the appellants. Accordingly, PW17 reached the check post, where the appellants and the lorry in which they were travelling were intercepted. PW17 deposed that, he introduced himself to the appellants as Gazetted Officer, and in his presence, PW1 conducted their body search, and recovered only some cash and mobile phones, and no contraband was recovered.

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According to the appellants, the time of occurrence mentioned as 8.30 p.m in the complaint, and arrival of PW17 at the check post at 8.20 p.m as mentioned in Ext.P1 mahazar, casts serious doubt regarding the actual time of the vehicle checking and seizure of the contraband. The testimony of PW1 clearly shows that, while conducting the vehicle checking duty at Kumily Excise Check Post, TN-51-8069 mini lorry was intercepted, and on getting suspicion, the vehicle was inspected, and 165 packets of ganja concealed in a secret chamber were recovered. For the purpose of conducting body search, the appellants were informed of their right to get their body searched in the presence of a Gazetted Officer, and Exts.P9 and P10 notices were given to them, informing their right. The appellants acknowledged receipt of those notices by putting their signature in Exts.P9 and P10 and that fact is not disputed by them.

¶201

The testimony of PW17, that on request made by PW1, he reached the check post and witnessed the body search of the appellants, stands unimpeached. It is not disputed that, no contraband was recovered from the body of the appellants on search conducted by PW1 in presence of PW17. In the body search, if any contraband articles were recovered from their body,

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that also would have attracted an offence punishable under the NDPS Act. So, in all probability, the time mentioned in the complaint as 8.30 p.m might have been the time after conducting the body search of the appellants, and that discrepancy has nothing to do with the veracity of the prosecution case.

¶205

Going by Section 50 of the NDPS Act, even issuance of a notice was not contemplated, and there will be compliance of Section 50, when the officer informs the accused of his right to be searched in the presence of a Gazetted Officer/Magistrate. Moreover, if the body search was conducted in presence of a Gazetted Officer, the question whether the accused was informed of his right or not has no relevance at all.

¶206

The purpose of Section 50 is to provide an added protection to the persons who are accused of the offences under the NDPS Act, which contains very stringent provisions. The maximum protection that can be availed by a person accused of the said offence, as far as the body search is concerned, is to get the search done, in the presence of a Gazetted Officer or Magistrate. Even if the concerned person is informed of his right, and he opts for exercising it, the ultimate step that can be taken by the officer concerned is to ensure the presence of a Gazetted

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Officer. [See Marshal v. State of Kerala 2021 KHC 770 : 2021

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(6) KLT 579 ].

¶211

In the case on hand, the appellants are not disputing the fact that, the body search was conducted in the presence of PW17. Moreover, Exts.P9 and P10 notices were issued by PW1 to the appellants, informing their right to be searched in presence of a Gazetted Officer/Magistrate. The appellants affixed their signature also on receipt of notice.

¶212

Learned counsel for the appellants would argue that, the 2^nd appellant (A3) belonged to Tamil Nadu and he might not have understood the contents of Ext.P9 notice issued to him in Malayalam. PW1 deposed that, on intercepting the vehicle and on questioning the appellants, they told him that they were going to Kottayam to collect jackfruit. Even if A3 belonged to Tamil Nadu, there is nothing to show that, he was not able to understand Malayalam. Moreover, the case records show that, charge was framed and read over to the 2^nd appellant (A3) in Malayalam, to which, he pleaded not guilty. 313 questioning was also done in Malayalam and the 2^nd appellant (A3) answered all the questions in Malayalam. So, there is nothing to find that while receiving Ext.P9 notice, the 2^nd appellant (A3) did not realise his right as envisaged

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under Section 50 of the NDPS Act so as to say that there was non-compliance of Section 50. Even if it is taken for argument sake that the 2^nd appellant (A3) did not realise the purport of Ext.P9 notice, and of his valuable right to be searched in presence of a Gazetted Officer/Magistrate, all those contentions fall to the ground, as his body search was conducted in presence of PW17, a Gazetted Officer. Moreover, no contraband was recovered from their body search, and the contraband was recovered only from the vehicle. So also, the body search and its statutory requirements fade into insignificance.

¶216

60. In State of Punjab v. Baljinder Singh and another

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[(2019) 10 SCC 473] , the Apex Court held that, when the contraband was recovered from the vehicle, and the personal search of the accused did not lead to any recovery of contraband, the allegation of non-compliance of Section 50 of the NDPS Act, regarding personal search, will not invalidate effect of recovery from search of the vehicle. If at all there was any violation of Section 50 regarding the personal search, it will invalidate the effect of recovery of the contraband out of the personal search alone.

¶218

Since the contraband was seized from the vehicle, and

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not from the body on personal search of the appellants, the contention regarding non-compliance of Section 50 of the NDPS Act put forward by the learned counsel for the appellants, is only to be rejected. Even if the personal search conducted was in violation of Section 50, recovery of the contraband from the vehicle will not get affected. If at all the personal search was conducted in violation of the requirements under Section 50, it will affect only the recovery effected out of personal search, and it will not affect the recovery made from the vehicle.

¶222

In the present case, nothing was recovered on personal search and recovery of the contraband was effected from the vehicle. Moreover, the personal search of the appellants was conducted after serving them notice, informing their right to be searched in presence of a Gazetted Officer/Magistrate, and the search was conducted in presence of PW17, a Gazetted Officer. So, there is nothing to show that the requirements of personal search under Section 50 were not complied with. Hence, that contention also is liable to be rejected.

¶223

Another contention taken up by the learned counsel for the appellants is that, there was violation of Section 57 of the NDPS Act, which deals with report of arrest and seizure.

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Section 57 reads thus:

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“ 57. Report of arrest and seizure.- Whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate superior official”.

¶228

Exts.P3 and P4 are the arrest memo of the appellants (A2 and A3) which were prepared on 17.05.2011 at 8.30 p.m. Ext.P7 is the report under Section 57 of the NDPS Act, submitted by PW1 Excise Inspector, and that report is dated 18.05.2011. It was received by the Assistant Excise Commissioner on 19.05.2011. Ext.P7 shows that, a report regarding the particulars of arrest and seizure was prepared within 48 hours of such arrest and seizure, and it was forwarded to the Assistant Excise Commissioner. Learned counsel for the appellants submitted that, the report was not submitted to the immediate superior official i.e., Circle Inspector of Excise, but it was forwarded to Assistant Excise Commissioner. The reason also is mentioned in Ext.P7 that, the post of Circle Inspector of Excise, Peermade was lying vacant and the new incumbent had not taken charge. So, there is satisfactory explanation for submitting Section 57 report before the Assistant Excise Commissioner, Idukki, instead of Circle Inspector of Excise, Peermade. So, the non-compliance of Section 57 of the NDPS Act

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alleged by the appellants, is not tenable.

¶232

65. In Gurmail Chand v. State of Punjab [(2021) 14

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SCC 334 : 2020 SCC Online SC 738] , the Apex Court held that, Section 57 of the NDPS Act is not to be interpreted to mean that, in the event the report is not sent within two days, the entire proceedings shall be vitiated. The provision has been held to be directory and to be complied with, but merely not sending the report within the said period cannot have such consequence as to vitiate the entire proceedings. In Sajan abraham v. State of Kerala [(2001) 6 SCC 692 : 2001 SCC (Cri) 1217] , it was held by the Apex Court that, non-compliance of Section 57 of the NDPS Act would not vitiate the prosecution case, and mere absence of any such report cannot be said to have prejudiced the accused. It was further held that, Section 57 is not mandatory in nature.

¶234

In the case on hand, Section 57 report was filed within time and since the immediate superior had not taken charge, it was sent to the Assistant Excise Commissioner. So, there is substantial compliance of Section 57 of the NDPS Act.

¶235

Learned counsel for the appellants would argue that, the

¶236

1^st appellant was only a passenger in TN-51-8069 mini lorry and he

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was not aware of the contraband carried in that vehicle. According to him, an offence will be attracted, only when it is found that, there was conscious possession of the contraband. But it is trite law that once possession of the contraband article is established, the burden shifts on the accused to establish that, he had no knowledge of the same.

¶239

In Madan Lal and another v. State of Himachal Pradesh [2003 KHC 1550 : AIR 2003 SC 3642] and in Gian Chand and Others v. State of Haryana [2013 KHC 4580 : AIR 2013 SC 3395] , the Apex Court categorically held that, once possession is established, the person who claims that, he was not in conscious possession, has to establish that fact. Once prosecution succeeds in establishing possession of the contraband article by the accused, then the burden shifts on the accused, to establish that, he had no knowledge of the same.

¶240

In the case on hand, PW1 categorically stated before court that, while conducting vehicle checking duty at Kumily Excise Check Post, TN-51-8069 mini lorry which came from Tamil Nadu was checked and three persons were found inside the lorry; A1 was the driver and A2 and A3 were sitting in the driver’s cabin along with the driver. They told PW1 that, the vehicle was empty, but on

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getting suspicion, PW1 and party thoroughly checked the vehicle, and found a secret chamber behind the driver’s cabin, and on opening the same, they found 165 packets of ganja packed in that chamber, and the excise officials as well as the independent witnesses present there, were convinced of the fact that the said packets contained ganja, and its total weight was found to be 267 kilograms. PW1 identified A2 and A3 before court also.

¶244

The testimony of PW1 stands unimpeached with respect to the seizure of the contraband from the vehicle, and identity of the appellants (A2 and A3), who were present in the driver’s cabin. So, the burden shifts to the appellants (A2 and A3) to establish that they were not in conscious possession of the contraband. The case of the 1^st appellant (A2) that he was only a passenger in that lorry also speaks about his presence inside the lorry, at the time when it was intercepted by PW1 in Kumily Excise Check Post. The presumption under Section 35 and 54 of the NDPS Act also goes against the appellants, as they failed to rebut it by cogent evidence.

¶245

The procedural formalities of sampling, labelling etc. are not under challenge and Ext.P30 chemical analysis report shows that, the packets were received in a tamper proof condition with

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the seals intact, and on analysis, the samples were identified as ganja (cannabis sativa). So, prosecution succeeded in proving that, the appellants were found in possession of 267 kilograms of ganja which is commercial quantity, punishable under Section 20(b)(ii)(C) of the NDPS Act, with rigorous imprisonment for a term which shall not be less than 10 years but which may extend to 20 years and also fine which shall not be less than one lakh rupees, but which may extend to two lakh rupees. The trial court even after finding that, the contraband seized from the possession of the appellants was 267 kilograms, imposed only the minimum sentence of rigorous imprisonment for ten years and fine of Rs.1 lakh.

¶249

On an overall analysis of the facts and evidence, the conviction of the appellants under Section 20(b)(ii)(C) and the sentence imposed are not too harsh, to be interfered with, considering the gravity of the offence and its social ramifications. This Court finds no illegality, irregularity or impropriety in the conviction and sentence imposed on the appellants by the trial court under Section 20(b)(ii)(C) of the NDPS Act and hence their conviction and sentence under Section 20(b)(ii)(C) are hereby confirmed.

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The 2^nd appellant (A3) was found guilty under Section 25 of the NDPS Act also, apart from the offence under Section 20(b)(ii)(C), as the vehicle TN-51-8069 mini lorry allegedly belonged to him.

¶253

Section 25 of the NDPS Act is extracted below for easy reference.

¶254

“25. Punishment for allowing premises, etc., to be used for commission of an offence.-

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Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with the punishment provided for that offence”.

¶256

The case of the prosecution is that, TN-51-8069 mini lorry belonged to the 2^nd appellant (A3). In order to substantiate that fact, prosecution produced Exts.P18 and P38 documents issued by the Assistant Registering Authority, Theni. Moreover, PWs 6, 7 and 20 were examined to prove the ownership of that lorry by the 2^nd appellant (A3). But, learned counsel for the appellants would contend that, Ext.P38, which is the photocopy of Ext.P18, is hit by Section 162 of Cr.P.C, as it is a signed statement given by a witness. According to him, unless the RC book of the

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vehicle is produced, Exts.P18 and P38 cannot be relied upon, to find that the 2^nd appellant (A3) was the registered owner of that vehicle. Moreover, according to him, PW6, who was the previous owner of that vehicle, though deposed before court that she sold that vehicle to A3 Subramani, she failed to identify A3 before court. She was not able to say even the colour of that lorry. PW7-the husband of PW6 also deposed before court that, the lorry was sold to A3, but he could not identify A3. Moreover, learned counsel for the appellants pointed out that, even PW1-the detecting officer or PW15-the investigating officer did not identify that vehicle before court. So, he would say that prosecution failed to prove ownership of the 2^nd appellant (A3) over TN-51-8069 mini lorry and so much so, an offence under Section 25 of the NDPS Act will not be attracted against him.

¶260

PW20 is the Assistant Registering Authority, Theni who issued Ext.P38 (P18) registration details of TN-51-8069 Tata mini lorry. That document shows that, the said lorry was a public carrier having goods permit owned by Subramani C.

¶261

Learned Public Prosecutor submitted that, the registration certificate of the mini lorry TN-51-8069 was produced before the trial court along with the complaint. But, no explanation is offered

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by the prosecution for not marking that document, which was the primary document to prove the ownership of that vehicle. When prosecution did not mark or rely on the Registration Certificate of TN-51-8069 mini lorry, if at all it was produced before the trial court along with the prosecution records, the appellate court is not expected to fill up that lacuna by tracing out that document, to find that the 2^nd appellant (A3) was its registered owner. If that document was available among the prosecution records, it would have been marked as an exhibit offering the other side also an opportunity to confront with that document, if they have got any dispute with respect to that document. Unless that document was offered as an exhibit to be marked from the side of the prosecution after affording an opportunity to the other side to confront with the same, it cannot be relied on by the appellate court, if at all such a document is available in the case file.

¶265

As seen from Crl.M.P No.207 of 2015 filed by the Excise Inspector, Peermade, the mini lorry involved in the incident TN-51-8069 was kept in the premises of Peermade Excise Office, as ordered by the court, and at the time of examination of the witnesses, that vehicle was not able to be driven to the court as it was in a damaged condition. Instead of asking the official

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witnesses to identify the vehicle, from where it was kept, on taking orders from the trial court, the Excise Inspector filed a petition before the court, to appoint a commission to examine that vehicle. As per order in Crl.M.P No.207 of 2015, the trial court appointed a commission and the commissioner filed Ext.C1 report along with Ext.C1(a) series photographs. The commissioner went to the extent of preparing a detailed mahazar of the vehicle and reported its present condition.

¶269

The issuance of a commission for examining the vehicle involved in an NDPS case and to prepare its mahazar is beyond the provisions of the Criminal Procedure Code as well as the NDPS Act. When Ext.P1 seizure mahazar gives the exact details of the vehicle seized, with the measurement of the secret chamber found behind the driver’s cabin, there was no scope for preparation of any additional report by an Advocate Commissioner, regarding the very same aspect.

¶270

It is the duty of the prosecution to prove its case beyond reasonable doubt with the facts, materials and evidence collected during investigation, and there is no scope for any additional investigation by an independent agency while trial is going on. If the vehicle was not able to be driven to the court for the purpose

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of identification by the witnesses, the witnesses could have been asked to go to the place where the vehicle was kept and they could have identified it, in presence of the investigating officer or any other officer deputed by the court, for that purpose. A commissioner has no role in identifying the vehicle or giving its details, when the detecting officer or the investigating officer did not get a chance to identify that vehicle, at the premises where it was kept after its seizure.

¶274

It is the case of the appellants that, in the secret cabin of the lorry, it was not possible to keep 165 packets of ganja weighing 267 kilograms in total. When the testimony of the official witnesses seems to be trustworthy and blemishless, to find that 165 packets of ganja were seen packed inside the secret chamber of the lorry and PW1 and excise party recovered the same in presence of witnesses, there is no scope for a commission to inspect that vehicle or to measure out the area of the secret chamber to verify, whether that chamber was able to hold that much of ganja packets. It is more interesting to note that, in the report, the commissioner has not reported whether the lorry inspected by him was capable of being driven to court for the purpose of identification, though he deposed that, it was not

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possible to take the vehicle to the court. But, curiously enough he has not stated the reason, why the vehicle could not be driven to the court. Moreover, the commissioner did not verify the documents of the vehicle for the purpose of identification of the vehicle. The issuance of a commission by the trial court was quite unwarranted and without any jurisdiction.

¶278

The only provision in the Code of Criminal Procedure which empowers a Judge or Magistrate for a local inspection is under Section 310, which authorises a Judge or a Magistrate to visit and inspect after due notice to the parties, any place in which an offence is alleged to have been committed with a view to properly appreciate the evidence given, and before such step is taken, he has to arrive at an opinion that the step is necessary. That section itself says that the said power is to be exercised by a Judge or a Magistrate himself, and hence the delegation of the same to some other person is not competent. The said inspection by a Judge or Magistrate under Section 310 of Cr.P.C can be made, only for the purpose of appreciating the evidence already on record, but can never be used to fish out evidence when there is none.

¶279

In the case on hand, the trial court acted contrary to law,

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and ordered inspection of the vehicle through a commissioner exceeding its power, instead of directing the detecting officer or the investigating officer to go to the place where the vehicle was kept for the purpose of identifying the same. So, the testimony of CW1-the commissioner and Exts.C1 report and C1(a) photographs have no relevance at all and it has to be ignored in toto, as it was obtained by the trial court without any jurisdiction.

¶283

We have seen that, Ext.P18 (Ext.P38) issued by PW20, is in the nature of a signed statement, which is prohibited under Section 162(1) of Cr.P.C. As per Section 162(1), no statement made by any person to a police officer in the course of an investigation under this Chapter shall, if reduced to writing, be signed by the person making it. The prohibition relating to the use of a statement made to a police officer during the course of an investigation cannot be set at naught by the police officer not himself recording the statement of a person but having it in the form of a communication addressed by the person concerned, to the police officer. If a statement made by a person to a police officer in the course of an investigation is inadmissible, except for the purposes mentioned in Section 162, the same would be true of

¶284

a letter containing narration of facts addressed by a person to a

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police officer during the course of an investigation. It is not permissible to circumvent the prohibition contained in Section 162 Cr.P.C, by the investigating officer obtaining a written statement of a person instead of the investigating officer himself recording that statement. (Reliance placed on Kali Ram v. State of Himachal Pradesh 1973 KHC 634 : (1973) 2 SCC 808 : AIR 1973 SC 2773).

¶288

When Exts.P18 and P38 issued by PW20 are considered, it has to be treated as a statement made by a person to a police officer in the course of an investigation in the form of a communication and it is inadmissible except for the purposes mentioned in Section 162. Now the prosecution is relying on Exts.P18 and P38 coupled with the testimony of PWs 6, 7 and 20 to prove the ownership of the 2^nd appellant (A3) over the vehicle TN-51-8069. As we have already seen, PW6-the previous owner of that vehicle and PW7-her husband, though stated that the said vehicle was sold to A3 Subramani, they were not able to identify A3 before court. Exts.P18 and P38 are hit by Section 162(1) of Cr.P.C. The prosecution failed to explain the reason for not marking the registration certificate of that vehicle either through the detecting officer or through the investigating officer, if that document was available among the prosecution records. So, the

¶289

Crl.Appeal No.857 of 2015

¶290

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only possible conclusion is that, prosecution failed to prove ownership of TN-51-8069 lorry by the 2^nd appellant (A3).

¶292

The fact that the prosecution failed to prove ownership over the lorry, by the 2^nd appellant (A3) will not absolve him from his liability under Section 20(b)(ii)(C) of the NDPS Act, as ownership of the vehicle from where the contraband is seized is not at all relevant, in order to constitute that offence. In Rizwan Khan v. State of Chhattisgarh [2020 (5) KLT Online 1119 (SC) : (2020) 9 SCC 627] and in Kallu Khan v. State of Rajasthan [2021 (6) KLT Online 1028 (SC)] , the Apex Court held that, when the contraband is seized from the vehicle seized from the accused, ownership of that vehicle is immaterial. But his conviction and sentence under Section 25 of the NDPS Act will not stand without proving his ownership over the vehicle in question. If the ownership of the 2^nd appellant (A3) over the vehicle in question is not proved, then both the appellants will stand on the same footing, as both of them were found possessing and transporting 267 kilograms of ganja in contravention of the provisions of the NDPS Act. So, the conviction and sentence of the appellants under Section 20(b)(ii)(C) of the NDPS Act are not liable to be interfered with. Since the prosecution failed to establish the

¶293

Crl.Appeal No.857 of 2015

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ownership of the 2^nd appellant (A3) over the vehicle in which the ganja was seen transited through Kumily Excise Check Post, his conviction and sentence under Section 25 of the NDPS Act are liable to be set aside.

¶296

Accordingly, the conviction and sentence of the 2^nd appellant (A3) under Section 25 of the NDPS Act are hereby set

¶297

aside and he is found not guilty of that offence and is acquitted under Section 235(1) of Cr.P.C.

¶298

The conviction and sentence of the appellants (A2 and A3) under Section 20(b)(ii)(C) of the NDPS Act are hereby upheld.

¶299

In the result, the appeal is allowed in part, to the extent as above.

¶300

Sd/-

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SOPHY THOMAS JUDGE

¶302

smp

Basil v. State of Kerala

Case brief

What is this about?

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Basil v. State of Kerala

Case brief

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