Muhammed Bathisha K.S. vs State Of Kerala

The sole accused in S.C.No.79/2021 on the files of the Special Judge (Additional Sessions Court-II), Kasaragod, has filed this appeal under Section 415(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023, challenging conviction and sentence imposed on him in the said case, as per judgment dated 29.05.2026.

Heard the learned counsel for the appellant/accused and the learned Public Prosecutor in detail. Perused the verdict under challenge.

Here, the prosecution alleges commission of offence punishable under Section 20(b)(ii)B of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act' for short) by the appellant/accused. The prosecution allegation is that, at about 18.45 hours on 05.07.2020, the accused was found in conscious possession of 4.2 kg of ganja for the purpose of sale, against the prohibitions contained in the NDPS Act. Accordingly, he was nabbed red-handed.

When final report was filed before the Special Court, the Special Judge framed charge for the said offence and proceeded with trial. During trial, PW1 to PW13 were examined, Exts.P1 to P30 and MO1 to MO5 series were marked on the side of the prosecution. Apart from that, Ext.C1 was also marked. No evidence was adduced on the side of the defence.

On appreciation of the evidence, the learned Special Judge found that the appellant/accused committed the offence punishable under Section 20(b)(ii)(B) of the NDPS Act. Accordingly, he was convicted and sentenced as under:

The learned counsel for the appellant/accused submitted that the appellant/accused is innocent and the prosecution case is in the midst of doubts. The prime point argued by the learned counsel for the appellant/accused is that, in this case, though the contraband was alleged to be recovered on 05.07.2020, Ext.C1 Chemical Analysis report (positive result) would show that the contraband was examined in the laboratory only on 24.07.2023. Therefore, the delay in examining the contraband by the Forensic Science Laboratory (FSL) is fatal to the prosecution. The second point argued by the learned counsel for the appellant/accused is that, though the detecting officer has given evidence that samples weighing 25 gms each were collected as S1 and S2, Ext.C1 chemical analysis report would show the weight of S1 and S2 as 19.8256 gms and 21.8600 gms respectively. Therefore, the learned counsel contended that the weight difference also raises doubt as regards the contraband examined and the contraband forwarded to the FSL for chemical examination. Therefore, the learned counsel for the appellant/accused pressed for interference in the verdict impugned to record acquittal of the accused.

The learned Public Prosecutor, on the other hand, submitted that, in this case, the contraband was seized on 05.07.2020 and produced before the Court on 06.07.2020 and therefore, there is no delay in producing the contraband before the Court. It is also pointed out that, as per Ext.C1 Chemical Analysis Report itself, it has been stated that S1 and S2 samples were forwarded to the FSL from the Court on 22.07.2020 without any delay. Therefore, even though the contraband was examined by the Scientific Expert only on 24.07.2023, the delay in examination of the contraband is not fatal to the prosecution, as the same would usually happen because of the pressure of work in the FSL. Regarding the weight difference pointed out by the learned counsel for the appellant/accused, the learned Public Prosecutor placed decision of this Court in Sahid K. v. State of Kerala, reported in 2026(2) KLD 190, wherein this Court addressed the same issue in paragraph No.17, which reads as under:

Thus, the learned Public Prosecutor pressed for dismissal of this appeal.

Adverting to the rival contentions, the questions arise for consideration are;

Whether the Special Judge is justified in holding that the accused committed the offence punishable under Section 20(b)(ii)(B) of the NDPS Act.

Whether the impugned verdict would require interference?

Order to be passed.

Point Nos.1 to 3.

PW12 examined in this case is the then Sub Inspector of Kumbla police station, who detected the crime. PW7 is the accompanying officer. Here, the evidence of PW12 and PW7 was given much emphasis by the learned Special Judge, along with other evidence, including the evidence of PW11, an attestor to Ext.P1 search list, and PW2, an attestor to Ext.P2 seizure mahazar, to find commission of offence under Section 20(b)(ii)(B) of the NDPS Act by the appellant/accused.

PW12, the detecting officer, deposed that he was working as the Sub Inspector of Kumbla Police Station during the relevant period. According to him, at about 17.35 hours on 05.07.2020, while he was on duty in Kumbla Police Station, he had received credible information to the effect that Muhammed Badisha, the accused herein, had stored ganja in his house and was engaged in the sale of the same. The said information was immediately entered in the General Diary. The information was also immediately conveyed to PW13, who was the Inspector of Kumbla Police Station and the superior officer of PW12, over telephone. He testified that Ext.P13(a) is the extract of the Information recorded in the General Diary and, was despatched to PW13 through a Civil Police Officer, Sri.Harilal (CW10). Thereafter, the advance search memorandum was prepared and despatched to the court through PW2.

PW12 deposed further that, pursuant to the secret information in this regard, he had proceeded to the scene of occurrence, along with PW7 and the police party, in department vehicle bearing No.KL. 01 CN 4189 at 17.45 hours. They reached the scene of occurrence, situated in Mangalpady Village by 18 hours. The police party alighted from the vehicle in front of the house. Civil Police Officers Santhosh, Sreekumar and Divya (CW5, CW7 and CW9 respectively) were posted by him in front of the said house and the remaining police party proceeded to the back side of the said house. They then saw a person wearing jeans and shirt (the accused) coming out of the kitchen of the said house holding a white colour plastic sack with handle in his right hand. Then the said person was restrained. When asked his name, he stated that he was Badisha. He was informed that the police party had come to the place on receiving reliable information that he was in possession of narcotic drugs and that the said house and his person were to be searched to verify the veracity of the said information. He was further informed of his right to be searched personally (body search) in the presence of a Magistrate or a Gazetted Officer. Ext.P14 is the body search report regarding the information given to the accused of his right to be personally searched in the presence of a Magistrate or a Gazetted officer. Then for body search of the accused, PW1 was called and he had reached the scene of occurrence. PW12 told PW1 about the storage of ganja in the house and requested him to conduct body search of the police party.

PW12, PW7 and PW1 unanimously deposed that PW1 introduced himself as the LR Tahsildar who is a Gazetted Officer and searched body of PW12 and the members of the police party who accompanied him, but nothing objectionable was found. Then PW1 searched the body of the accused and MO1 mobile phone and ₹4,000/-were recovered from him.

When MO3 sack found in possession of the accused was opened and inspected, it was seen that the same contained two bundles secured with tape. The bundles were opened using blade, it was found that the same contained ganja. When asked whether the accused had any documents authorizing him to possess ganja, he answered in the negative. Then the accused was arrested after informing him about the grounds of his arrest.

PW12 deposed that he had prepared Ext.P8 arrest memo and Ext.P15 inspection memo in this connection. PW12 and PW1 further deposed that PW12 got a weighing machine from the shop of PW8, which is situated at Bandiyod, through CW7 (CPO 2320), and on receiving the said weighing machine at 19.15 hours, PW12 transferred the ganja to a polythene cover and weighed the same, and confirmed its weight as 4.2 kilograms.

PW12 further deposed that the said ganja along with the polythene cover was wrapped in a brown paper cover. Thereafter, the same was affixed with labels signed by the accused, PW12, and the witnesses, and marked as Ext.P1. MO2 series of empty covers, which earlier contained ganja, were also packed, labelled, and sealed in the same way and marked as Ext.P2. MO4 series, plastic covers recovered by PW12 were also packed, sealed, and labelled, and marked as Ext.P3. MO3 plastic sack which contained the contraband was also packed, sealed and labelled in the very same fashion and marked as Ext.P4. The specimen impressions of the SHO seal using which the contraband and other properties were sealed, were affixed on a white paper which was in turn placed inside a brown paper cover, sealed and labelled in the aforementioned manner, and marked as Ext.P5. The said specimen seal impression got identified as Ext.P16(a). MO1 mobile phone and ₹4,000/- recovered from the accused were seized vide Ext.P1 search list. PW12, PW7 and PW1 identified the accused at the dock as the person who possessed the ganja. PW12 identified MO1 to MO4 and MO3(a) label pertaining to MO3 sack, and MO4 label pertaining to MO4 series of plastic covers. Similarly, PW12 had identified MO2(b) as the label affixed on Ext.P2. According to PW12, then he had returned to the police station along with the accused person and the contraband, and soon Ext.P18 FIR was registered.

He submitted Ext.P5 before the court vide Ext.P19 Form 15. The properties seized by him were submitted before the court vide Ext.P20 property list. PW12 also submitted Ext.P21 application before the Magistrate requesting to certify the inventory. MO5 series (2 in numbers) samples of ganja weighing 25 Grams each were drawn and marked as S1 and S2 and the left over ganja weighing 4.150 Kilograms was marked as Ext.P6 and the same was seized vide Ext.P21(a) Annexure Form. The certification issued by the learned Magistrate got identified as Ext.P21(b). Ext.P22 series of photographs were drawn regarding the procedure of drawing of samples and certification of the inventory and Ext.P23 identified as the CD containing Ext.P22 series of photographs. PW12 submitted Ext.P24 report under Section 57 of the NDPS Act before his superior officer, who signed thereon in acknowledgment of receipt. He also deposed that he had submitted Ext.P25, his duty note book, to the investigating officer.

In this case, PW2 is one of the then Civil Police Officers attached to Kumbla Police Station. He deposed that on 05.07.2020, PW13 entrusted to him the advance search memorandum for searching a house, with direction that the same be submitted to the court. PW2 submitted the same before the court on 06.07.2020. On 12.07.2020, Ext.P3, which is the certified copy of the General Diary, was seized vide Ext.P12 seizure mahazar, to which PW2, PW13 and CW18 were signatories.

PW3 is an attestor to Ext.P4 scene mahazar. He deposed that he and CW12 were present while the police prepared Ext.P4 scene mahazar at Baithala and that he and CW12 affixed their signatures on the said mahazar between 11 am and 11.30 am. PW8 is the owner of the shop from where the police collected the weighing machine to weigh the contraband. He deposed that, he was the owner of 'MA Stores' situated at Adukka and that on 05.07.2020 at 7 pm, the police obtained his weighing machine and returned it to him later. He further deposed that later on, the officials of the Legal Metrology Department also enquired about the said weighing machine, and that he handed over the records pertaining to the said weighing machine to the police.

The then ASI of Kumbla Police Station got examined as PW9. He deposed that he was conversant with the facts of the case and that he saw the investigating officer seizing the duty note books of PW12 and the other police officials who accompanied him at the time of the alleged search, seizure and arrest vide Exts.P10 and P11 seizure mahazars, to which he had affixed his signature as a witness thereto. He further deposed that he saw PW12 submitting the report under Section 57 of the NDPS Act to PW13.

PW10, an attestor to Ext. P11 seizure mahazar, also was examined to prove the same. He deposed that, on 08.07.2020, while working as a Senior Civil Police Officer at Kumbla Police Station, he witnessed PW13 seizing Exts. P9 and P25 duty notebooks of PW12 and PW7 under Ext. P11 seizure mahazar, to which he had affixed his signature as an attesting witness.

The then Inspector of Kumbla Police Station, the investigating officer was examined as PW13. He deposed that on 06.07.2020, he had taken the investigation of this case. On the said day, at 11 AM, PW12 showed him the scene of occurrence and then he had inspected the same and prepared Ext.P4 scene mahazar. As per Ext.P4, the scene of occurrence was the western work area of a double-storied building situated 200 metres to the north of the Baithala – Panjathotty Road. He also deposed about the investigation fully without any iota of ambiguity.

Here, as regards the recovery of 4.2 kg of ganja, PW1, PW7 and PW12 gave categorical evidence supporting the recovery. In fact, nothing was extracted to disbelieve their versions. Apart from that, PW11, an attestor to Ext.P1 search list, PW2, an attestor to Ext.P2 seizure mahazar, PW4, who issued Ext.P5 certificate of legal metrology, PW5, the village officer who prepared Ext.P6 site plan and PW6, the Secretary of Mangalpady Grama Panchayat, who issued Ext.P7 building permit, also supported the prosecution case.

Coming to the contentions raised by the learned counsel for the appellant/accused that there was delay in examining the contraband at the FSL, the submission made by the learned counsel for the appellant/accused is that though the seizure was on 05.07.2020, the samples S1 and S2 were examined by the expert only on 24.07.2023 as stated in Ext.C1. It is true that the contraband was examined at the laboratory on 24.07.2023. Now the question is, whether the delay in examining the contraband in the FSL is fatal to the prosecution. It is a fact known to all that, all the FSLs in the State are flooded with material objects which would require scientific examination and therefore, it is not easy for the FSL to examine the objects or samples within a time bound manner or within a short span of time. Insufficiency of labs and the pressure of work are the main reasons for the delay. Here, Ext.C1 chemical analysis report would show that contraband - S1 and S2 forwarded from the Court on 22.07.2020 and reached the laboratory soon. It was endorsed by the expert in Ext.C1 that “it contained two sealed brown paper packets, seals tallied with the specimen seal impression given in the forwarding note and the seals were intact. The packets were found marked as S1 and S2, which were marked as item No.1a and b respectively in the laboratory.” In this case, it is evident from Ext.P26 forwarding note, proved through PW13, that the contraband seized on 05.07.2020 was produced before the Court on 06.07.2020 and the same was forwarded from the Court to the FSL on 22.07.2020 without any delay. Thus, the delay in examining the contraband, which was forwarded to the FSL in time, without any possibility of tampering, for want of sufficient infrastructure would not, by itself, is a reason to disbelieve the prosecution case holding that the contraband examined in the FSL was not one forwarded from the Court as nothing has been brought out to find anything prejudicial to the interest of the accused in the matter of examination of the contraband as the item seized from him. Therefore, the said contention cannot be countenanced.

Regarding the weight difference, when this Court addressed the same question in Sahid's case (supra), this Court took the view, as pointed out by the learned Public Prosecutor and extracted hereinabove, that minor weight difference of the sample is of no serious consequence due to possibility of natural weight difference as discussed therein. In such a view of the matter, the weight difference is of no serious consequence, since the contraband is ganja, for which natural weight difference by efflux of time could not be ruled out.

Thus, on re-appreciation of evidence, it is held that the learned Special Judge has rightly found that the accused committed the offence punishable under Section 20(b)(ii)(B) of NDPS Act and therefore, the said conviction does not require interference.

Coming to the sentence, the report submitted by the learned Public Prosecutor would show that apart from the present crime, the appellant has involvement in six other crimes. It is also noticed that after the commission of the present crime, the appellant again involved in another crime under the NDPS Act itself. Therefore, this Court is not inclined to reduce the sentence, as the same is only justifiable in the circumstances of this case. Thus the sentence imposed by the Special Judge also is confirmed.

In the result, this appeal is dismissed, confirming the verdict impugned.

The bail bond executed by the appellant is cancelled with direction to the appellant/accused to surrender before the Special Court, forthwith. On failure to surrender, the Special Judge is directed to execute the sentence without fail.

The Registry is directed to forward a copy of this judgment to the Special Court, for information and further steps.