CRL.A/1580/2004 of P.S.GIREESH,C.NO.5379,C.PRISON,KANNUR Vs STATE OF KERALA on 13 December 2005

JUDGMENT

Appellant is convicted and sentenced to undergo rigorousimprisonment for 10 years and also to pay a fine of Rs.1,00,000/- and indefault, to undergo rigorous imprisonment for two years under Section21 of the Narcotic Drugs and Psychotropic Substance Act (`NDPS Act',for short). Set off was also allowed. The said conviction and sentences arechallenged in this appeal.

2. According to prosecution, on 29.7.1996 at about 4.45 p.m. theaccused was found in possession of 1.900 grams plus 1.250 grams ofbrown sugar in two packets near the foot path leading to beach side,Varakkal road junction. The appellant was in possession of the drug inviolation of the provisions of the NDPS Act and hence he was chargesheeted for offence under Section 21 of the NDPS Act. The crime wasdetected by PW1, Sub Inspector of Police, who on getting information,proceeded to the spot, along with PW5, Assistant Sub Inspector of Policeand others. The arrest and seizure were made in the presence of PW6and another independent witness.

3. Prosecution examined PWs 1 to 7 and marked Exhibits P1 toP10 and MOs 1 to 4(a) on its side. The accused examined DWs 1 to 4 asdefence witnesses and marked Exhibits X1 to X4 on the side of the defence.The court below, relying on the evidences adduced by the prosecution,held that the accused was found in possession of 3.150 grams of brown sugar in violation of the provisions of the NDPS Act and he wasconvicted and sentenced under Section 21 of the NDPS Act.

4. To prove the occurrence, prosecution examined PWs 1, 5 and 6.PW1 is the detecting officer who gave evidence that he got informationregarding the offence and he immediately went to the scene of occurrencealong with PW5 and others. He reached the place and identified theaccused with reference to the description received by him. The accusedwas proceeding towards beach side, after crossing the beach road, on seeingthe police jeep. He was stopped and questioned and he was foundperplexed. On suspicion, PW1 wanted to conduct a body search and heasked the appellant as to whether he requires presence of a gazetted officeror a Magistrate for the purpose of conducting search, for which heanswered in the negative. Therefore, the search was conducted in thepresence of witnesses. Two packets of brown sugar having weight of 1.900grams and 1.250 grams respectively were recovered from the pockets ofthe shirt worn by the appellant. A seizure mahazar, Exhibit P1, was preparedfrom the scene and the articles were seized. MOs 1 and 2 are the brownsugar. MO3(a) is the packet containing plastic covers which was used tocover the brown sugar. MO4 is the packet containing the shirt. MO4(a) isthe shirt seized at the scene.

5. PW5 corroborated the evidence of PW1 in all materialparticulars. He also attested to the mahazar, Exhibit P1. PW6 is anindependent witness. He also deposed that he found the police party nearthe Varakkal road-Beach road junction. He saw the police seizing articles

from the accused on 29.7.1996 at about 4.15 p.m. from the road leadingto the Varakkal Temple. He also saw the police weighing the article keepingit on the bonnet of the jeep and the article was found to be brown sugar.Four packets seized from there were identified as MOs 1 to 4. Headmitted his signature in Exhibit P1 seizure mahazar. He also said thatthe accused was asked whether he required a gazetted officer for thesearch and the appellant told that he did not require so and that the articlewas seized from the appellant's pocket.

6. PWs 1 and 5 are official witnesses, being the Sub Inspector of Policeand Assistant Sub Inspector of Police attached to the same Police Station.But a definite case put foward by the accused is that he was taken away bythe police from his house stating that the Sub Inspector of Police wanted tomeet him. To prove this case PW4, his wife was examined, she deposedthat he was taken from the house on 27.7.1996 at about 9 a.m. by fivepolice men and thereafter he was not released. Later she came to knowthat a case was registered against him. His definite case is that noincident as alleged took place. PWs 1, 5 and 6 were cross-examined atlength.

7. PW6 is an independent witness who was not treated as hostile. Butin the chief-examination itself he gave inconsistent version. While hedeposed that he saw the article being seized from the accused at one pointof time, he deposed in another context in the chief-examination itself thathe did not see the article being seized. He only knew that it was seizedfrom the possession of the accused. According to him, he only saw the

article being weighed keeping on the bonnet of the jeep. His definite case isthat the incident happened on the Varakkal Temple road-Beach roadjunction, from where the seizure mahazar was prepared. His evidence isinconsistent regarding the search and seizure. It is also to be noted that hehad also stated in chief-examination that before the body-search wasconducted, the accused was asked whether he required the presence of agazetted officer etc. No value can be attached to the evidence of PW6on this aspect because he did not have a case that the seizure was madein his presence.

8. The requirement of Section 50 of the Act will be satisfied by thepolice official immediately before the search and hence it is evident thatPW6 is not speaking the truth before the court. The appellant has acase that PW6 is a witness who speaks at the instance of the police and whohave been cited as witness in several cases. He is residing at a distanceof 4 k.m. from the scene of occurrence and the evidence given by himshows that he was over-anxious to support the prosecution case and heexaggerated the version, which could be as a result of tutoring, especiallywith respect to the formalities under Section 50 of the Act.

9. Now coming to the evidence of police officials, it appears that aserious challenge was made during the cross-examination and also byadducing defence evidence to discredit the evidence given by the policeofficials. Though PWs 1 and 5 have given evidence corroborating each otherin all material particulars, it cannot be accepted for face value, unless itis put to strict test especially since the evidence of the independent

witness is shabby and it appears that he is an interested witness.

10. While scrutinising the evidence of PWs 1 and 5, the moststriking aspect which appears in this case is regarding the place from wherethe articles were seized. The police officials who stated that the articleswere seized from the pocket of a shirt of the accused and the shirt was alsoseized and marked as MO4(a). The definite case of the occurrencewitnesses is that the seizure was effected from the shirt and that is why MO4(a) was seized as a material object. Exhibit P1 would also show that theshirt was seized at the spot.

11. However, the accused examined DW3 on his side. He is theSub Inspector of Police attached to the same Police Station and he gaveevidence that entries were made by the Principal Sub Inspector, PW1 in thegeneral diary relating to the date of occurrence. The relevant entry ismarked as Exhibit X4. As per the entries in Exhibit X4, the ganja was seenkept in the folds of lunki. In Exhibit X1 it is recorded that brown sugarwas kept in the fold of the lunki of the accused. Exhibit X4 entry in thegeneral register was recorded immediately on reaching the PoliceStation, after the seizure on 29.7.1996 at 6.30 p.m. Exhibit X4 is acontemporaneous document, which goes totally against the case set up bythe prosecution that seizure was effected from the pocket of the shirtwhich was allegedly seized at the scene. None of the witnesses has a casethat lunki was seized, though the G.D entry shows that the article wasseized from the fold of lunki.

12. In this regard, the omissions in Exhibit P1 seizure mahazarassumes importance. None of the details regarding the manner in whichthe seizure was made and the compliance of Section 50 of the NDPS Act etc.,which are vital in nature, are recorded in Exhibit P1. There is noexplanation for such omission. That apart, in Exhibit P2 report, which isclaimed to have been prepared at the same time at 6.30 p.m., a differentpicture is revealed. It is stated that the article was seized from the pocketof the accused. There is no case that it was seized from the fold of thelunki. The accused was successful in establishing that the entries in the G.Dis contradictory to the evidence given in court and other documents whichare prepared on the same date and time.

13. The defence plea that this incident did not occur as alleged bythe prosecution, cannot be rejected. The court below has not paid muchattention to this aspect. The court below rejected this discrepancy byexplaining that the accused did not prove the entry in Exhibit X4 throughthe person who prepared the same and no opportunity was given to suchofficer to explain the discrepancy. This approach is not proper. The officialwitness, DW1 is a Sub Inspector of Police who marked Exhibit X4 and hedeposed before the court that Exhibit X4 was prepared by PW1, detectingofficer. When the discrepancy was brought out in defence, it is the duty ofthe prosecution to explain it and prove its case beyond reasonable doubt.The document has not come from the custody of the accused. Thedocument is an official document which is kept in the Police Station whichcontains day to day entries. When the entries are directly contrary to the

prosecution case, it is the duty of the prosecution to explain the same. Inthe absence of it, the benefit must go to the accused.

14. In this context, another relevant document is also marked by thedefence. Exhibit X2(a) is the entry relating to the accused regardingthe property found from the person of the accused. Exhibit X2(a)maintainedat the Police Station and it was marked through DW1, the official witness.As per the entries, property found on the person of the accused wereshirt and lunki, as per column No.6. Column No.7 shows that only thelunki was given for wearing and according to prosecution, the shirt wasseized as MO4(a). The prosecution case is that after the arrest and makingthe entries in Exhibit X2(a), the accused was produced in court, asescorted by armed police constable.

15. But Exhibit X3 register maintained in the jail which is provedthrough the First Grade Assistant Jailor in the District Jail shows thatRs.30/was seized from the possession of the accused when he wasproduced in the jail. The accused was produced in the jail on 30.7.1996as a remand prisoner. Entries made in the cash register, Exhibit X3 showsthat Rs.30/- was seized from the prisoner who was brought from the courtthrough armed escort. Though the case of the prosecution is that only theshirt and lunki were seized, it is not explained how this money has come tothe possession of the accused, though he was throughout in thecustody of the police till he was produced in jail. This also cast a doubt onthe veracity of the prosecution case that a seizure was effected as alleged.

16. In this regard the evidence of DW1 is to be looked into. He

deposed that he is working as A.S.I. in the same Police Station and hiscase in the chief examination itself is that when the accused wasproduced in the station, he was wearing a shirt and lunki as seen fromcolumn No.6 in the register. But, according to the official witnessesexamined to prove arrest , search and seizure, the shirt was seized at thespot. The prosecution has to explain this discrepancy also. But it was notdone. The evidence of DW1 is inconsistent of the version given by theprosecution witnesses regarding the seizure of MO4(a) shirt at the sceneof occurrence under Exhibit P1 mahazar. In the light of the evidencegiven by DW1 in the chief examination itself, this discrepancy also ought tohave been explained by the prosecution.

17. But the court below has taken a strange view in this regard also.Referring to the discrepancy in Exhibit X2, it was observed that areading of the register will go to show that it was intended for thepurpose of mentioning the personal articles seized from the possession ofthe accused at the time of his arrest and not at the time when he wasproduced in the station. This finding is totally against the evidence given byDW1 in the box. When the police official gives evidence that those were thedresses worn at the time of production in the Police Station, the court cannotact upon presumptions that the entries may be with respect to thearticles which were in the possession of the accused at the time of arrest,unless such explanation is brought out by the prosecution. The court cannotact prejudicial to the prosecution by explaining away each and everydiscrepancy even by going against the version given by the police official in

the box.

CRL.A.NO.1580/04

the box.

18. More care should have been taken by the court below to assessthe evidence, giving due weight to the discrepancies without anyprejudice against the accused. In the light of the discrepancies discussedabove, I find that the evidence of PWs 1 and 5 cannot be acted upon toprove prosecution case. The burden is on the prosecution to prove thatthe accused was in possession of brown sugar as alleged by theprosecution, but such burden is not discharged. In the abovecircumstances, conviction and sentence passed against the appellant areunsustainable.

In the result, conviction and sentence passed against the appellantunder Section 21 of the Narcotic Drugs and Psychotropic Substance Act areset aside. The appellant is found not guilty of offence under Section 21 ofthe Act and he is acquitted of the said offence. He is set at libertyforthwith. The Registry shall issue release memo to the concerned jailauthority forthwith.

vgs.

K.HEMA, JUDGE

K.HEMA,J. ------------------------------CRL.A.NO.1580 OF 2004 ------------------------------

JUDGMENT