Appellant convicted under Section 20(b)(ii)(B) of the NDPS Act for possession of ganja. High Court held Section 50 not applicable as seizure was from a kit, not the person. Found compliance with Section 57. Upheld conviction but reduced imprisonment to period already served.
Sentence reduced to period of imprisonment already undergone.
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 K. BABU
FRIDAY, THE 22ND DAY OF MARCH 2024 / 2ND CHAITHRA, 1946
CRL.A NO. 109 OF 2023
CRIME NO.1033/2017 OF Kottappady Police Station,
Ernakulam
AGAINST THE ORDER/JUDGMENT DATED 17.12.2022 IN SC NO.268
OF 2018 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT -
VIII, ERNAKULAM
APPELLANT/ACCUSED NO.1:
TICKEN ROUT
AGED 25 YEARS
S/O NIDHI ROUT, ACHALAKOT-VILLAGE
TIGIRUIA-PS/POST, CUTTACK RURAL -DISTRICT,
ODISHA- STATE, (PRESENTLY LODGED AT CENTRAL
PRISON VIYOOR)., PIN - 754030
BY ADVS.
BIJU ANTONY ALOOR
K.P.PRASANTH
VISHNU DILEEP
SHERLY S.
ARCHANA SURESH
SUNITHA K.G.
RESPONDENT/COMPLAINANT:
STATE OF KERALA , REPRESENTED BY THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,
PIN - 682031
G SUDHEER,PP
THIS CRIMINAL APPEAL HAVING COME UP FOR
ADMISSION ON 22.03.2024, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
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K.BABU, J.
Crl.A.No.109 of 2023
Dated this the 22nd day of March, 2024
JUDGEMT
Aggrieved by the judgment dated 17.12.2022 passed by the Additional Sessions Court-VIII, Ernakulam in S.C.No.268/2018, the accused No.1 has preferred this appeal. The appellant/accused No.1 was convicted under Section 20(b)(ii)(B) of the NDPS Act and sentenced to undergo rigorous imprisonment for a period of two years and pay a fine of Rs.25,000/-.
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Crl.A.No.109 of 2023
Inspector of Police, Kottappady, found 1.950 Kg of ganja kept in two packets. The appellant and the other accused were arrested from the spot.
the help of a translator. They denied the incriminating circumstances in the evidence. When the witnesses were examined, the evidence was interpreted to the accused under Section 279(1) Cr.P.C. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence
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Crl.A.No.109 of 2023
against the accused and hence they were called upon to enter on their defence, if any, they may have in support thereof. Exts. D1 to D3 were marked on the side of the defence. After hearing the arguments addressed on both sides, the Trial Court acquitted accused No.2 and convicted the appellant under Section 20(b)(ii)(B) of the NDPS Act.
(a) The mandate of Section 50 of the NDPS Act has not been complied with.
(b)There is violation of Section 57 of the Act.
(c)The evidence of official witnesses who supported the prosecution is not credible.
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Crl.A.No.109 of 2023
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Crl.A.No.109 of 2023
Malayalam. Thereafter, PW1 asked the accused whether they require the presence of a Gazetted Officer or a Magistrate to witness the search of their body. PW1 informed them that they got the right to claim such presence. They replied that they needed the presence of a Gazetted Officer. Accordingly, PW3, the Excise Circle Inspector, Kothamangalam was contacted over phone. PW3 reached the spot by 9.30AM. PW1 gave a request under Section 50 of the Act to PW3. The request submitted to PW3 was marked as Ext.P1. PW3 testified that PW1 contacted him over phone and as requested, he reached the place of occurrence.
was seized from the appellant. PW1 weighed the ganja seized from the possession of the appellant using the weighing machine delivered by PW7, a nearby shop owner. PW1 stated that the ganja found in the packets was separately wrapped in brown paper and sealed the
Crl.A.No.109 of 2023
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same and marked as Ext.P1. PW1 deposed that he handed over the ganja to the Circle Inspector of Police (PW8). PW8 gave evidence that it was he who produced the accused and property before the jurisdictional Magistrate. Ext.P19 is the property list, which would show the details of the contraband produced before the Court. The properties were produced before the Court on 24.11.2017 itself. PW9 submitted Ext.P20 report before the Magistrate under Section 52A of the Act and sample was drawn in the presence of Magistrate on 16.12.2017. He deposed that 30gms of ganja was taken as sample and the remaining 921 gms was packed in brown paper and sealed. The remaining ganja was marked as Ext.P1. Ext.P21 is the proceedings of the learned Magistrate wherein the entire details have been recorded.
for the appellant is that Section 50 of the Act has not been complied with. In the present case, the ganja was
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seized from a kit in the possession of the accused. The learned Public Prosecutor submitted that in the present case, there is no search of the “person” as contained in Section 50 and therefore, the alleged non-compliance of Section 50 has no relevance. In State of Punjab v. Baljinder Singh and Anr [ (2019) 10 SCC 473], the Supreme Court considered the question whether noncompliance of requirements of Section 50 while conducting search in a case where the contraband was seized not from the person of the accused. The Supreme Court held that as regards the applicability of the requirements under Section 50 of the Act is concerned, it is well settled that the mandate of Section 50 of the Act is confined to “personal search” and not to search of a vehicle or a container or premises. This position was reiterated by the Supreme Court in Rajesh Dhiman and Anr. v. State of Himachal Pradesh [2020 (10) SCC
Crl.A.No.109 of 2023
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740]. In view of the precedents mentioned above, the safe conclusion is that there was no requirement of complying with Section 50 of the Act in a case where the contraband was not seized from the body of the accused and the seizure was from a kit in the possession of the accused.
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Act. Ext.P14, the G.D. extract, also contains the details of the accused and registration of the case. These documents were handed over to PW8 on the date of incident itself. PW8 testified that he had received the report. Therefore, there is proper compliance of Section 57 of the NDPS Act. The said challenge raised by the learned counsel for the appellant falls to ground.
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Crl.A.No.109 of 2023
Report shows that the article received was ‘Cannabis Sativa’. There is credible evidence led by the prosecution to establish seizure of the ganja. The prosecution successfully established the possession of the contraband by the appellant. Therefore, the conviction rendered by the court below requires no intervention and the same is confirmed.
Crl.A.No.109 of 2023
Resultantly, the appeal is partly allowed. The conviction under Section 20(b)(ii)(B) of the NDPS Act is confirmed and the substantive sentence of imprisonment imposed on the appellant is reduced to the period of sentence already undergone by him. He shall pay a fine of Rs.25,000/ and in default, he has to undergo rigorous imprisonment for a period of one month.
Sd/K.BABU, JUDGE
kkj
3 issues framed by the court
Is Section 50 of the NDPS Act applicable when contraband is seized from a container rather than the person of the accused?
Is the report under Section 57 of the NDPS Act properly complied with by the police?
Should the substantive sentence be modified considering the period already undergone?
Colour shows how this judgement treated each authority
State of Punjab v. Baljinder Singh and AnrRelied on¶50
State of Punjab v. Baljinder Singh and Anr [ (2019) 10 SCC 473] · Who else cites this
Rajesh Dhiman and Anr. v. State of Himachal PradeshRelied on¶50
Rajesh Dhiman and Anr. v. State of Himachal Pradesh [2020 (10) SCC 740] · Who else cites this
3 provisions across 1 enactments
Ticken Rout
State of Kerala
K. Babu
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court