H.K. Abdulla @ Fruit Abdulla vs State of Kerala

V.K. Mohanan, J.—The above appeal is directed against the judgment dated 24/6/2004 in S.C. No. 359 of 2001 of the court of the Sessions, Kasaragod, at the instance of the accused therein as he is convicted and sentenced for the offence punishable u/s 20(b)(ii)(B) of the NDPS Act. The prosecution case is that, on 03/04/2001, PW. 1 the then C.I. of Police, Kumbala Police Station while attending Manjeswar Police Station, at about 16.40 hours, got reliable information over telephone that the accused possessing a plastic bag containing ganja, was standing beside a building under construction situate on the eastern side of the Uppala bus stand and according to the prosecution, P.W. 1 with police party proceeded to the place of occurrence and the accused was located, who was standing holding a plastic bag which containing 1,200 gm which was seized from his possession and he was arrested then and there. Thus, according to the prosecution, the accused has committed the above offence. Consequently, Crime No. 67 of 2001 was registered in the Manjeswaram Police Station. On completing the investigation, a formal report was filed on the basis upon which S.C. No. 359 of 2001 was instituted and when the accused appeared before the trial court, after hearing the prosecution and the accused, a formal charge was framed against him for the offence punishable u/s 20(b)(ii)(B) of the NDPS Act, which when read over and explained to the accused, he denied the same and pleaded not guilty, pursuant to which the prosecution adduced its evidence by examining PWs. 1 to 3, Exts.P1 to P.12 documents and besides the above Nos. 1 to 6 are also produced and identified as material objects. The trial court finally, on appreciation of the evidence and materials on record, found that the proved facts and circumstances clearly establish that the accused has kept in his possession 1200 gms. of ganja a narcotic substance and accordingly held that the accused committed the offence punishable u/s 20(b) (ii)(B) of the NDPS Act and he is convicted thereunder. On such conviction the accused/appellant is sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 25,000/- and in default he is directed to undergo six months more imprisonment. Set off is allowed. It is the above finding and order of conviction and sentence that are challenged in this appeal.

Heard Sri. N.J. Johnson, the learned counsel for the appellant and the learned Public Prosecutor for the State.

As I indicated earlier to prove the prosecution allegation against the accused, PWs. 1 to 3 were examined and Exts. P1 to P12 documents were marked and Mos. 1 to 6 were identified as material objects. Among the above three witnesses PW. 1 the then C.I. of Police, Uppala Police Station is the officer who detected the crime. According to him, while he was in the Manjeswaram Police Station, received a telephonic information to the effect that the accused was standing near to the Uppala Police Station holding a bag containing ganja and according to P.W. 1, after due compliance of Section 42 of the NDPS Act, himself and party proceeded to the spot and after locating the accused and by observing the procedure prescribed by Section 50 of NDPS Act ganja was seized from the possession of the accused and the accused was arrested from the spot and he had complied with other statutory formalities. Thus when P.W. 1 was examined, Ext. P1 search notice, Ext. P2 seizure mahazar, Ext. P3 F.I.R., Ext. P4 copy of report prepared u/s 42 of the NDPS Act, Ext. P5 arrest memo, Ext. P6 inspection memo and Ext. P7 report u/s 57 are marked through PW. 1. PW. 2 another C.I. of Police, conducted part of the investigation during which he inspected the place of occurrence and prepared Ext. P8 scene mahazar and he had also prepared Ext. P9 property list by which the material objects are produced before the court. It is PW. 2 who prepared Ext. P10 forwarding note and submitted before the court requesting the court to send the sample for chemical analysis report and thus obtained Ext. P11 chemical analysis report which marked through PW. 2. Ext. P12 site plan also marked through PW. 2. The final report is laid by PW. 3. These are the evidences and materials referred to by the Crl. A. No. 1109 of 2004 learned Judge in the impugned judgment and considered for his finding and convicting the appellant/accused.

The learned counsel Mr. N.J. Johnson appearing for the appellant submitted that, the entire prosecution case is vitiated since the prosecution has not produced and examined any independent evidence even though names of two persons are shown in Ext. P2 seizure mahazar as attestors for the same. Therefore, according to the learned counsel, particularly in view of the decision reported in Bahadur Singh Vs. State of Madhya Pradesh and Another, the prosecution cannot be believed but the learned Judge of the trial court simply accepted the evidences of PW. 1 to form his opinion and to convict the appellant. It is also the submission of the learned counsel that PW. 1, in the present case has miserably failed to follow the statutory mandate contained u/s 50 of the NDPS Act and therefore in view of the decision reported in Myla Venkateswarlu Vs. The State of Andhra Pradesh, the appellant is entitled to get a clear acquittal since PW. 1 has not complied with the mandate contained u/s 50 of the NDPS Act. Per contra the learned Public Prosecutor, after inviting my attention to a decision reported in Ajmer Singh Vs. State of Haryana, submitted that, in the present case, the seizure is effected from the plastic bag possessed by the accused and not from his person and therefore there was no requirement of compliance of Section 50 of the NDPS Act. According to the learned Public Prosecutor the decision in Bahadur Singh Vs. State of Madhya Pradesh and Another, is not applicable in the present case in the light of the facts and circumstances involved in the case.

I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor and I have gone through the evidence and materials on record.

In the light of the contentions advanced, the question to be considered is whether the trial court is justified in its finding and convicting the appellant, especially in the absence of any independent evidence and the further question to be considered is whether there is violation of Section 50 of the NDPS Act when the seizure was effected by PW. 1, which warranting an acquittal. According to me, none of the contention advanced by the learned counsel for the appellant is tenable in view of the evidence and materials on record. The learned counsel for the appellant miserably failed to make out any ground to disbelieve PW. 1. The only contention of the learned counsel is that as no independent evidence is examined, PW. 1 cannot be believed and the prosecution case has to be rejected. I am unable to sustain such a contention. In the decision cited by the learned counsel for the appellant the Hon''ble Apex Court in paragraph 8 of the above decision it is held:-"Under the aforesaid circumstances the appellant cannot be convicted on the sole testimony of policy witnesses." Going by the above reported decision it can be seen that the Hon''ble Apex Court pointed out various defects in the prosecution evidence particularly with respect to the evidence of the detection officer. Thus pointing out certain circumstances, the Hon''ble Apex Court has held that the appellant in that case cannot be convicted solely on the basis of the policy witnesses. There is no hard and fast rule to the effect that policy witnesses or official witnesses cannot be believed unless their evidences are corroborated by independent witnesses. According to me, prudence require, when no independent witnesses are cited and examined, a close scrutiny of the official witnesses and the result of such close scrutiny if reveals that there is no infirmities or contradictions in such evidence and their evidences are free of doubt absolutely there is no implements in accepting such evidences of the official witnesses for canvassing a conviction. But of course if there is some infirmities or contradictions or doubt about the veracity of the evidence given by such official witnesses, depends upon the facts and circumstances in each case, it is up to the court for insisting corroboration from independent source to accept the evidence of the official witnesses. But in the present case, as I indicated earlier the learned counsel failed to point out any contradiction or infirmities in the evidence of PW. 1, who detected the crime and who effected the seizure and arrest of the accused. So, according to me, the first point raised by the counsel is liable to be rejected.

Another contention raised is that Section 50 of the NDPS Act has not complied with by PW. 1. On a perusal of the deposition of PW. 1 it can be seen that PW. 1 has stated in an unambiguous language that:

So, according to me, PW. 1 has conveyed the right available to the accused u/s 50 of the NDPS Act. Having regard to the facts and circumstances involved in the case, according to me, in the present case Section 50 is not attracted since according to the prosecution, they have no case that the contraband article was seized from the persons of the accused and on the other hand, the seizure was effected from the bag held by the accused at the time of detection of the crime. About this factual input there is no dispute at all. As rightly pointed out by the learned Public Prosecutor in the decision reported in Ajmer Singh Vs. State of Haryana, and subsequently by another decision of the Hon''ble Apex Court reported in Ram Swaroop Vs. State (Govt. NCT) of Delhi, it is made clear that compliance of Section 50 is not required when seizure was effected from bags and not from the persons of the accused. So in view of the above settled position the second contention advanced by the learned counsel for the appellant is also not tenable.

In the light of the above facts and circumstances and in view of the above discussion, I am of the view that, the trial court is fully justified in its finding and convicting the appellant for the offence punishable u/s 20(b)(ii)(B) of the NDPS Act and accordingly the conviction recorded by the court below is confirmed. As this Court is not inclined to interfere with the findings of the court below and the conviction recorded, the learned counsel for the appellant submitted that, a lenient view may be taken in the matter of the sentence considering the pathetic situation of the family of the accused. In the light of the particular facts and circumstances involved in the case and in view of the plea of the accused raised before the trial court which reiterated by the learned counsel for the appellant according to me, considering the above mitigating circumstances, the substantial sentence requires some modification. But at the same time it is relevant to note that the allegation now stands proved against the accused is that he was found in possession of 1200 gms of ganja which meant for sale and this Court cannot ignore the seriousness of the allegation. However, according to me, one year rigorous imprisonment will be sufficient to meet the ends of justice and according to me modifying the substantial sentence imposed by the court below the same can be reduced into one year imprisonment.

In the result, this appeal is dismissed confirming the conviction for the offence u/s 20(b)(ii)(B) of the NDPS Act as recorded by the trial court. But in modification of the substantial sentence imposed by the trial court, the appellant is sentenced to undergo rigorous imprisonment for one year and the sentence of fine and the default sentence as ordered by the trial court are confirmed. Accordingly, the above appeal is dismissed subject to the modification with respect to the sentence to the extent indicated above. The appellant is directed to appear before the trial court on 01/12/2013 to receive the modified sentence and if there is any failure on the part of the appellant in appearing before the court below as directed, the trial court is free to take coercive steps to secure the presence of the appellant and to execute the modified sentence.