Ticken Rout vs State Of Kerala

K.Babu, J

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/-.

The prosecution case is that on 24.11.2017 at 8.50 AM, the appellant and the other accused were found on the side of the public road starting from Chirangal-Kottappady Road and leading to the pump house, near St.George Public School at Kottappady. On search of the plastic kit in the possession of the appellant, the Sub 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.

After completing the investigation, Final Report was submitted against both the accused for the offence punishable under Section 20(b)(ii)(B) of the NDPS Act before the Special Court. The accused appeared on summons. Charge was framed against them under Section 20(b)(ii)(B) of the NDPS Act.

The prosecution examined Exts.PWs 1 to 9 and marked Exts.P1 to 25 and MO1 to MO5.

After closing the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with 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 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.

Heard the learned counsel for the appellant and the learned Public Prosecutor.

The learned counsel for the appellant challenged the judgment of conviction and sentence on the following grounds:-

(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.

The alleged seizure was effected on 24.11.2017 at about 8.30 AM by Sub Inspector of Police, Kottappady (PW1). PW1 got a call on his official phone informing that two persons were waiting on the road leading to the pump house near Kottappady Chira, with ganja. He recorded the information in writing and sent the same to the C.I.of Police, Kalady who was holding the charge of C.I. of Police Kuruppampady. PW1 gave evidence that based on the information he received, he along with the police party reached the road leading to the pump house and found the accused standing there. The appellant was holding a plastic kit. He was trying to hand over the same to another person. On seeing the Police team, the appellant and other accused tried to escape from the scene. They were intercepted. PW1 identified the appellant as the person who was holding the plastic kit. When questioned, the appellant and the other accused disclosed their identity. They were conversant with 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.

PWs 1 to 3 deposed that 1150gms of dry ganja 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 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.

The foremost challenge of the learned counsel for the appellant is that Section 50 of the Act has not been complied with. In the present case, the ganja was 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 non-compliance 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 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.

The second challenge of the learned counsel for the appellant is that there is non-compliance of Section 57 of the Act. The learned counsel submitted that the evidence of PW8 would go to show that he had not given any direction to conduct a raid. He challenges the genuineness of the report prepared under Section 57 of the Act. Ext.P13 is the report given by PW1 to his immediate official superior. A reading of the same shows that it contains the date and time of seizure, the details of the contraband seized and the details including the name and address of the accused, the details such as crime No. and other particulars as required under Section 57 of the 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.

The oral evidence of PWs 1 to 3 establishes the seizure of ganja from the possession of the appellant. Ext.P25 is the report of the Chemical Examiner. Ext.P25 shows that one sealed packet marked as R1 containing heat sealed polythene cover containing 30gm of partly crushed dry greenish brown leafy material allegedly ganja was received in the Lab on 29.12.2017. The seals were intact and tallied with the sample seals provided. There is no challenge in the sampling done. The property remained in the safe custody of the Court and the sample reached the Analyst in tact. The Chemical Analysis 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.

The learned counsel for the appellant prayed for confining the sentence to the period already undergone by him. The appellant was arrested on 24.11.2017. He remained in custody till 27.02.2018. Thereafter, he was released on bail. He was convicted on 17.12.2022 and he has been in prison till this date. The appellant has so far undergone imprisonment for a period of 18 months. The learned Public Prosecutor submitted that there is nothing on record to show that the appellant had any antecedents. The appellant is a 25 year old illiterate young man hailing from Odisha State.

Accordingly, while upholding the conviction of the appellant, considering the facts and circumstances of the case and also the age of the appellant, I am of the view that the sentence imposed on him can be modified to the sentence already undergone by him.

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.