Deepak Kumar vs District Police Chief

Sophy Thomas, J

This appeal is at the instance of the 1st accused in SC No.10 of 2006 on the file of Special Judge (NDPS Act Cases), Vadakara, by which he was convicted and sentenced under Section 20(b)(ii)(B) of the Narcotics Drugs and Psychotropic Substances Act (hereinafter referred as ‘the NDPS Act’).

The prosecution case is that, on 29.03.2005 at 7 p.m, the appellant was found travelling with four other persons in KL 5L 6526 Santro car through Mahe-Thalassery public road, carrying a plastic bag containing 2.200 kilograms of ganja at his lap. PW1-the SI of Police, Thalassery and police party proceeded to that place and checked the vehicle, on getting reliable information that ganja was being transported in that car through that road. Nothing was recovered from the body search of the appellant or from the vehicle. The contraband was seized after complying with all legal formalities, and the appellant and other passengers in the car were arrested. Case was registered against all the five, under Section 20(b)(ii)(B) of the NDPS Act. PWs 8 and 9, Circle Inspectors of Police, investigated the case and laid charge sheet against all the accused.

On appearance of the accused persons before the trial court, charge was framed under Section 20(b)(ii)(B) of the NDPS Act, to which, all of them pleaded not guilty. Thereupon, prosecution examined PWs 1 to 9, marked Exts.P1 to P16 and identified M.O.s 1 and 2, to prove its case. Ext.D1 was marked from defence side.

On analysing the facts and evidence and on hearing the rival contentions from either side, the trial court found A2 to A5 not guilty of the offence alleged under Section 20(b)(ii)(B) of the NDPS Act and they were acquitted under Section 235(1) of Cr.P.C. A1 was found guilty under Section 20(b)(ii)(B) of the NDPS Act and he was convicted and sentenced to undergo rigorous imprisonment for three years and fine of Rs.10,000/- with a default sentence of rigorous imprisonment for six months. Aggrieved by the conviction and sentence, this appeal has been preferred by the 1st accused, disputing the legality and propriety of the judgment.

Heard learned counsel for the appellant and learned Public Prosecutor.

The appellant is assailing the judgment pointing out the material defects and irregularities, which, according to him, will cut at the root of the prosecution case.

The first ground urged by the appellant is that, there is non-compliance of Section 42 of the NDPS Act. He would say, even according to PW1, he proceeded to the place of occurrence on getting information that ganja is being transported in KL 5L 6526 Santro car through Mahe-Thalassery road. Since it was not a chance recovery, provisions of Section 42 should have been complied with by PW1. PW1 admitted that, he got a telephone message that ganja was being transported for sale, in KL 5L 6526 Santro car through Mahe-Thalassery public road. He entered that information in the GD, and report of that information was forwarded under Section 42(2) of the NDPS Act to the Dy.SP, as the C.I was out of station. Ext.P1 is the report forwarded by PW1 to the Dy.SP, Thalassery.

Learned counsel for the appellant would say that, the report under Section 42(2) of the NDPS Act has to be forwarded to the immediate official superior, and in the case on hand, the immediate official superior of PW1 was not the Dy.SP but the C.I. So, there is non-compliance of Section 42 of the NDPS Act. PW1 has explained the reason for sending the report to the Dy.S.P, that since the C.I was out of station in connection with court duty, report was sent to the Dy.S.P.

Now let us see whether the case in hand was a case inviting compliance of Section 42 of the NDPS Act. PWs 1 and 2 categorically stated that, the ganja was seized from a plastic bag kept in the lap of the appellant while he was travelling in KL 5L 6526 Santro car, through Mahe-Thalassery public road. When the seizure is in a public place or in transit, the Section applicable is Section 43 of the NDPS Act. So, there is no question of non-compliance of Section 42 of the NDPS Act. Ext.P5 seizure mahazar clearly says that, the vehicle was intercepted and checked in Mahe-Thalassery public road near Lyndas restaurant. Whether the vehicle intercepted was a private vehicle or not, it was intercepted in a public road, and the seizure was made in a public place, that too in transit. So, Section 42 of the NDPS Act has no application in that seizure.

Learned counsel for the appellant would contend that, since the search was conducted, on getting previous information, and since it was not a chance recovery, Section 42 is applicable and hence its non-compliance will become fatal to the prosecution case. Going by Section 43 of the NDPS Act, if the search was in a public place OR in transit, the empowered officer specified under Section 42 can seize any narcotic drug, psychotropic substance or controlled substance with respect to which, he has reason to believe that an offence punishable under the Act has been committed along with any animal, conveyance or article which are liable for confiscation under the Act. If the seizure is in any public place or in transit, whether previous information was received or not, is not material.

In Kallu Khan v. State of Rajasthan [2021 (6) KLT online 1028 (SC)], 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.

In the case on hand, the seizure of the contraband was from a vehicle while in transit in a public road. So, irrespective of the fact that the vehicle was intercepted on prior information or not, since the seizure was made from a vehicle in a public place and that too in transit, it attracts Section 43 of the NDPS Act and not Section 42 of the NDPS Act. So, the violation of Section 42 of the NDPS Act, pleaded by the appellant, is of no avail.

Now coming to the second ground that, there was violation of Section 50 of the NDPS Act while conducting personal search of the appellant, PWs 1 and 2 would say that, nothing was recovered from the body search of the appellant. The contraband was in a plastic bag placed at the lap of the appellant, while he was sitting inside the car. The bag was checked and the contraband was seized. Thereafter, PW1 proceeded to conduct body search of the appellant. PW1 would say that, the appellant was informed of his right to be searched in presence of a Gazetted Officer or a Magistrate and then, he agreed to conduct the search by PW1 himself, and Ext.P2 document was produced to substantiate that fact. PW1 admitted that, as agreed by the appellant, he himself prepared that document. But, the appellant signed the same agreeing to conduct the body search by PW1 himself. What is contemplated under Section 50 of the NDPS Act is to inform the accused of his right to be searched in presence of a Gazetted Officer or a Magistrate, and since that information was passed to the appellant and he replied that, presence of Gazetted Officer or Magistrate is not necessary and the search could be conducted by PW1 himself, there is no violation of Section 50 of the NDPS Act. Moreover, nothing was recovered on the body search of the appellant.

In State of Rajasthan v. Parmanand and another [(2014) 5 SCC 345], the Apex Court held that, when the bag carried by a person is searched, without there being any search of his person, Section 50 of the NDPS Act has no application. But, if the bag carried by him is searched and his person also is searched, Section 50 will have application. Here, the bag containing the contraband was taken from the lap of the appellant and it was examined first and thereafter body search was conducted. Then also he was informed of his right under Section 50 of the NDPS Act and so much so, there was no violation of Section 50.

Learned counsel for the appellant would contend that, there was non-compliance of Section 57 of the NDPS Act also. But, Ext.P7 is the report sent by PW1 to the Dy.SP. Here also he would say that, since the C.I was out of station, the report was sent to the Dy.SP.

In Sajan Abraham v. State of Kerala [(2001) 6 SCC 692 : 2001 SCC (Cri) 1217], the Apex Court held 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.

In Gurmail Chand v. State of Punjab [(2021) 14 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. So, if at all there was non-compliance of Section 57 of the NDPS Act, it will not vitiate the trial. In the case on hand, Ext.P7 report was forwarded within time to the Dy.SP in the absence of the Circle Inspector, who was the immediate superior officer. So, the non-compliance of Section 57 alleged by the appellant is not tenable.

Another contention taken up by the learned counsel for the appellant is that, there was no proper sampling as contemplated under law. Ext.P5 seizure mahazar gives a clear picture as to the mode of sampling and labelling done by PW1 at the spot. Ext.P14 chemical analysis report shows that, the sample received before the lab was three sealed brown paper packets and the seals on the packets were intact and found tallied with the sample seal provided. M.O 1 series identified by PWs 1 and 2 before the court was the sample packets received from the lab after analysis. It is true that, PW1 deposed that, 5 grams of ganja each were taken in three packets and it was sealed and labeled. But, in the chemical analysis report, the weight of ganja seen in the packets were little less. The trial court rightly found that, the ganja might have dried up, causing little reduction in weight. So, the appellant failed to show anything material to challenge the sampling and labeling done by PW1 at the spot. The chemical analysis report shows that the samples analysed were identified to be ganja.

Another ground taken up by the learned counsel for the appellant is that, the investigating officer, who filed the final report, is not seen examined. But, PWs 8 and 9 are the investigating officers who conducted the investigation in this case. It seems that, CW15-Sri.P Sukumaran, C.I of Thalassery was not examined. Since both the investigating officers were examined, the appellant got opportunity to confront them with the whole investigation undertaken by them including the statements of witnesses recorded by them during investigation. No prejudice has been caused to the appellant if prosecution did not examine the officer who laid the charge sheet before court, especially when he had not done the investigation. So, that contention also is not tenable.

The trial court analysed the facts and evidence in its correct perspective and this Court finds no illegality or impropriety in the impugned judgment, while convicting the appellant under Section 20(b)(ii)(B) of the NDPS Act.

Regarding the sentence imposed, learned counsel for the appellant would plead for leniency. Drug trafficking is a social menace to be cured. The appellant was found carrying 2.200 kilograms of dry ganja in a car. He was arrested on 29.03.2005 and was in judicial custody till 21.05.2005. He was convicted on 29.03.2007 and this revision was pending before this Court for the last more than 16 years. He was aged only 23 at the time of occurrence. Now he has turned out to be a man of 41 years. He was carrying the trauma of conviction in a criminal case in all these years. There is nothing to show that, he was involved in any other similar offence, after this incident.

Considering all these facts, this Court is inclined to modify and reduce the sentence imposed by the trial court to rigorous imprisonment for one year and fine of Rs.10,000/- (Rupees Ten thousand only), with a default sentence of rigorous imprisonment for two months. Set off shall be allowed for the period undergone in custody during trial.

In the result, the appeal is allowed in part, upholding the conviction under Section 20(b)(ii)(B) of the NDPS Act, but modifying and reducing the sentence imposed by the trial court to the extent as above.