Murukan vs State Of Kerala

Johnson John, J.

The appellants are accused Nos. 1 and 3 in S.C. No. 1544 of 2003 on the file of the First Additional Sessions Judge, Kollam and they are

challenging the conviction and sentence imposed on them for the offence under Section 20(b)(ii)(A) of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (‘NDPS Act’ for short).

The prosecution case is that on 28.03.2002, at about 3.20 p.m., accused Nos. 2 to 5 were found in possession of ganja weighing 200 gms. each

while they were inside autorickshaw bearing registration No. KL-2D 7758 parked in the residential property of the first accused at Mundakkal Village

and the first accused was found in possession of 400 gms. of ganja in a plastic cover in a room in his house by the Sub Inspector of Kollam East

Police Station and party and the accused are thereby alleged to have committed the offence under Section 20(b)(ii)(B) of the NDPS Act.

On appearance of accused Nos 1 and 3 before the trial court, and when they pleaded not guilty to the charge, PWs 1 to 8 were examined and

Exhibits P1 to P12 and MOs 1 to 21 were marked from the side of the prosecution. From the side of defence, DW1 examined and Exhibit D1 marked.

After hearing both sides and considering the oral and documentary evidence on record, the learned Additional Sessions Judge, as per the impugned

judgment dated 20.11.2006, convicted and sentenced the accused persons to undergo rigorous imprisonment for six months and to pay a fine of

Rs.5000/- (Rupees Five Thousand each) and in default of payment of fine, to undergo simple imprisonment for one month each for the offence under

Section 20(b)(ii)A of the NDPS Act.

Heard Sri. C. Rajendran, the learned counsel for the appellants and Sri. Vipin Narayan, the learned Public Prosecutor and perused the records.

The point that arises for consideration in this appeal is whether the conviction and sentence passed against the accused are legally sustainable.

The main contentions raised on behalf of the accused/appellants are as follows:

The trial court has not considered the contradiction in the identification of the material objects by PWs 4 and 7.

The trial court has not considered the unexplained delay in producing the material objects and the delay in forwarding the same to the laboratory and non-

production of the copy of the forwarding note.

The trial court ought to have found that there is no satisfactory link evidence to show that the same sample which was drawn from the contraband seized at the

time of occurrence had reached the hands of the chemical examiner without any tampering.

No satisfactory evidence is adduced to prove the manner of sampling as well as its safe custody in a tamper proof condition.

The learned Public Prosecutor argued that the evidence of PWs 4, 6, and 7 regarding the arrest and recovery of contraband items from the

possession of the accused persons is credible and trustworthy and that Exhibit P11 report from the Forensic Science Laboratory would show that the

material objects seized were ganja and therefore, there is no reason to interfere with the findings in the impugned judgment.

PW7 was the Sub Inspector of Kollam East Police Station on 28.03.2002 and he deposed that at about 3 p.m., on that day, he got reliable

information that 3 or 4 persons are engaged in sale of ganja in an autorickshaw near the water tank on the side of beach road and therefore, after

recording the information in the general diary and forwarding written information to his superior officers, he reached near the water tank along with

police party. PW7 deposed that on questioning the person in the driver seat and 3 persons sitting in the back seat of the autorickshaw, they admitted

that they are in possession of ganja and that they brought the same from the first accused residing in the nearby canal puramboke and therefore, steps

were taken to guard the house of the first accused and the other accused in the autorickshaw were informed about their right to be searched in the

presence of an Executive Magistrate or Gazetted Officer and thereafter, at about 5.20 p.m., body search of the accused persons were conducted in

the presence of PW4, Tahsildar.

According to PW7, the third accused, Murukan, was arrested at 5.40 p.m. and in his body search, a ganja packet was recovered from his waist

and out of the said 200 gms. of ganja, he prepared two samples of 24 gms. each. The samples and the remaining ganja were packed and sealed. PW7

identified the said samples as Mos 8 and 9 and the remaining ganja as MO17. The newspaper used by the 3rd accused for packing the ganja is

identified as MO2.

The evidence of PW7 shows that subsequently when they searched the house of the first accused, the first accused was standing inside the house

with a plastic cover in his hand and on examination of the plastic cover, it was found that the same contained 400 gms. of ganja. PW7 deposed that he

prepared 2 samples of 24 gms. each from the said ganja and packed and sealed the samples and the remaining ganja and also the plastic cover used

by the accused for carrying the ganja. PW7 identified the samples as Mos 14 and 15 and the balance ganja recovered from the possession of the first

accused as MO20. The plastic cover used by the first accused for keeping the ganja is identified and marked as MO5.

PW4 was the Tahsildar in whose presence PW7 conducted the body search. According to PW4, he reached the place of occurrence on getting

Exhibit P2 letter. The evidence of PW4 shows that 200 gms. of ganja was recovered from the possession of the 3rd accused and two samples were

taken and he identified the said two samples as Mos 3 and 4 and the balance ganja as MO17. PW4 also identified the paper used by the 3rd accused

to pack the ganja as MO2 before the court.

According to PW4, out of the ganja recovered from the possession of the first accused, two samples of 25 gms. each was taken and he identified

the said two samples as MOs 9 and 10. PW4 identified the remaining ganja seized from the possession of the first accused as MO20 and the paper

used by the first accused for packing the ganja as MO4.

In spite of the serious contradiction in the evidence of PWs 4 and 7 regarding the identification of the samples and the remaining ganja seized from

the possession of the first and third accused, no attempt is seen made by the prosecution to clarify the same. PWs 1 and 2 are the independent

witnesses who turned hostile to the prosecution and their evidence shows that they have not witnessed the alleged occurrence.

In cross examination, PW7 stated that he forwarded a search memo to the court before searching the house of the first accused. However, he

admitted that Exhibit P9, search list, reached the court only on 20.04.2002 and Exhibit P8 series, property list, reached the court only on 02.04.2002.

PW7 would say that he used the metal seal of Kollam East Police Station with the impression ‘KEPS’ for sealing the sample and the remaining

contraband. But, his evidence shows that the said fact is not mentioned in Exhibit P1 mahazar.

The learned counsel for the appellants also pointed out that the specimen impression of the seal used is not there in Exhibit P1 mahazar and PW7

has not given any explanation for not affixing the specimen impression of the seal in the mahazar and not stating anything in the mahazar regarding the

nature of the seal used by him to seal the sample and the remaining ganja at the place of occurrence. PW7 also admitted in cross examination that he

has not affixed his personal seal in the material objects or the documents.

In this case, the alleged occurrence was on 28.03.2002 and Exhibit P8 series property list and the evidence of PW7 in cross examination would

show that the properties were produced before the court only on 02.04.2002.

The evidence of PW8, the then Circle Inspector of Kollam East Police Station, shows that he took charge of the investigation of this case on

29.03.2002. In chief examination, initially, PW8 stated that he produced the properties as per Exhibit P8 series before the court along with the accused

persons. When the learned counsel for the accused put a question as to who was in possession of the property till 02.04.2002, PW8 stated that PW7,

Sub Inspector, was in possession of the property and that it was PW7 who produced the properties before the court on 02.04.2002. Subsequently the

prosecution recalled and examined PW7 and then PW7 deposed that he was in possession of the properties till the same was produced before the

court on 02.04.2002.

As noticed earlier, the evidence of PW8, Circle Inspector, would show that he took charge of the investigation on 29.03.2002 and therefore, it is

not forthcoming as to how PW7, Sub Inspector, can keep the properties in his custody till 02.04.2002.

The learned counsel for the appellants also pointed out that PW7 has no case that he entrusted the properties to the Station House Officer

immediately after the occurrence and that in this case, the prosecution has also not marked the copy of the forwarding note. A perusal of Exhibit P11

report from the Forensic Science Laboratory shows that the properties were produced in the laboratory on 17.07.2002 and the 10 sealed brown paper

packets were numbered serially from 1 to 10 in the laboratory. The description of items 3 and 4 in Exhibit P11 shows that the same contains the

signature of the third accused Murukan. But, the space for describing the label in the packet and the label in the paper slip are kept blank in Exhibit

P11 report. The learned counsel for the appellants also pointed out that in the description of items 9 and 11, it is not stated that the name and signature

of the first accused is there in the said packets. But the description of item No. 9 shows that the packet was labelled as S9. However, in the report,

the space for recording the nature of the label in the paper slip in item No.9 is seen kept blank. In the description of item No.10 also, the space for

recording the nature of the label in the packet as well as the label in the paper slip are seen blank and not filled.

As noticed earlier, the prosecution has not marked the copy of the forwarding note and there was no attempt to clarify the contradiction between

the evidence of PWs 4 and 7 regarding the identification of the contraband and sample and there is also no evidence to show that the contraband and

samples were kept in safe custody till the same is produced before the court as per Exhibit P8 series property list on 02.04.2002. There is also no

explanation for the delay in sending the same to the Forensic Science Laboratory.

In this case, the nature of the seal used by PW7 for sealing the sample packets is not mentioned in Exhibit P1 seizure mahazar and the specimen

impression of the seal is also not seen affixed in Exhibit P1 seizure mahazar. In the absence of specimen seal impression in the seizure mahazar or in

the property list, the officer of the court receiving the property will not be in a position to compare the same to ensure that the seized substances

reached the court without any tampering.

There is specific space in the forwarding note for affixing the specimen impression of the seal affixed on the sample so as to enable the chemical

examiner to compare it with the seal on the sample for arriving at a conclusion that the sample reached the laboratory without any tampering.

Therefore, in the absence of evidence regarding the specimen impression of the seal in the forwarding note as well as seizure mahazar and property

list, there is no assurance that the samples allegedly taken at the spot of the occurrence had reached the laboratory for analysis.

Therefore, in view of the unexplained delay in producing the contraband and samples before the court and absence of evidence as to where and in

what condition the seized material objects were kept till the same was produced in the court and also considering the absence of evidence regarding

the nature of the seal used by the detecting officer and the contradiction in the evidence of PWs 4 and 7 regarding the identification of the sample and

material objects, I find that the accused are entitled for the benefit of reasonable doubt.

In the result, the appeal is allowed and the conviction and sentence passed against the appellants/accused Nos. 1 and 3 in S.C. No.1544 of 2003 for

the offence under Section 20(b)(ii)(A) of the NDPS Act is set aside. The bail bond executed by the appellants/accused Nos. 1 and 3 shall stand

cancelled and they are set at liberty forthwith.