Noufal.K vs State Of Kerala

Judgment in S.C.No.393/2019 on the files of the Special Court under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the NDPS Act’ hereinafter) (Additional Sessions Court - II), Kasaragod, is under challenge in this appeal at the instance of the 1^st accused in the above case.

Heard the learned counsel for the appellant/1^st accused and the learned Public Prosecutor, in detail. Perused the judgment under challenge along with the records of the Special Court.

The prosecution case is that at 19.30 hrs. on 03.02.2019 at Poongod, Bheemanadi, on the Moukkod - Kadumeni Tar Road, accused Nos.1 and 2 were found in conscious possession of 112 kilograms of ganja in an Innova car, bearing Reg. No.KL 60 L 6360, while transporting the same. It is further alleged that the 3^rd accused had conspired with accused Nos.1 and 2 to purchase the ganja and had financed its purchase by transferring ₹ 10,000/- on 29.01.2019 to the bank account of accused No.2 maintained at the Federal Bank, Bheemanadi Branch, and ₹37,500/- on 30.01.2019 to the bank account of accused No.2 maintained at the Federal Bank, Rajapuram Branch, through CW23, Shereef P.K. Thus, the prosecution alleges commission of offences punishable under Sections 20(b)(ii)(C), 27A and 29 of the NDPS Act, by the accused.

In this matter, the Special Court framed charge for the above offences and proceeded with trial. During trial, PW1 to PW18 were examined, Exts.P1 to P48, and MO1 to Mo6 series were marked on the side of the prosecution. DW1 and DW2 were examined and Ext.D1 was marked on the side of the defence.

On an analysis of evidence, the learned Special Judge found that the appellant/1^st accused committed offence punishable under Section 20(b)(ii)(C) of the NDPS Act and he was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of ₹ 1 Lakh and in default of payment of fine to undergo rigorous imprisonment for a period of three months, while acquitting accused Nos.2 and 3.

The learned counsel for the appellant/1^st accused raised three legal questions while assailing the judgment. The first point argued is that, in this case, there is non-compliance of Section 42 of the NDPS Act. Secondly, it is submitted that there is no evidence to show that the contraband seized on 03.02.2019 reached the court without tampering. The delay in forwarding the contraband from the court has also been pointed out to contend that there is no convincing evidence to establish that the contraband allegedly seized from the accused reached the hands of the scientific expert without any tampering. Apart from that, the learned counsel also pointed out non-compliance of Section 50 of the NDPS Act.

Strongly supporting the verdict impugned, the learned Public Prosecutor would submit that in this case, the contention raised by the learned counsel for the appellant/1^st accused that there was non-compliance of Section 42 of the NDPS Act, is bereft of any merits, as the evidence available as that of PW8, supported by Ext.P13 report and Ext.P13(a) GD entry would convincingly show compliance of Section 42. As regards the contention raised by the learned counsel for the appellant/1^st accused that there is no convincing evidence to establish that the contraband seized had reached the Forensic Science Laboratory (FSL) without any tampering, the said contention is also unsustainable, as the evidence on record would show that the contraband had been produced before the learned Magistrate on 04.02.2019 and, pursuant to the direction issued by the learned Magistrate, it had been produced before the Sessions Court on the following day. As far as non-compliance of Section 50 of the NDPS Act, the learned Public Prosecutor would point out that in this case, nothing recovered on search of the body of the appellant/1^st accused and therefore, the same has no application. Accordingly, it is submitted that none of the contentions raised by the learned counsel for the appellant/1^st accused to assail the impugned judgment is legally sustainable and, therefore, the impugned judgment is liable to be confirmed.

Adverting to the rival arguments, the points arise for consideration are;

In this case, PW8, the Sub Inspector of Police of Chittarikkal Police Station detected the crime and according to him, on 03.02.2019, when he was on patrol duty, the Sub Inspector of Police attached to the District Anti-Narcotics Special Action Force telephoned him and informed that ganja was transporting in a car near Kunnumkai area. Soon thereafter, he reached the police station, recorded the information in the General Diary, and prepared the report under Section 42 of the NDPS Act. It was through PW8 that Ext.P13 report prepared under Section 42 of the NDPS Act and Ext.P13(a) relevant General Diary entry were marked in evidence. According to him, soon thereafter, he had forwarded the report to the Deputy Superintendent of Police and had also informed him over the telephone. On obtaining permission, he, along with the Assistant Sub Inspector Kumaran, SCPO Sunilkumar, and CPO Manoj, had proceeded to the vicinity of the house of Riyas at Poongod and found the vehicle, which was allegedly transporting ganja through the Moukkod–Kadumeni Tar Road, coming from the direction of Moukkod at about 20.00 hours at a high speed. Then, by using the police station jeep, the car was blocked. Soon thereafter, the person who was seated on the left front seat opened the door and ran away. PW8 further deposed that he had enquired with the person who was in the driver's seat regarding his identity, and he had disclosed his name as Noufal K., S/o.Musthafa. When PW8 asked him why the other person ran away, he did not give any reply. Thereafter, he had opened the back door of the car bearing Reg.No.KL-60 L 6360 and found packets wrapped in brown paper and he also felt severe smell of ganja. He further deposed that, on being questioned, Noufal had stated that the person who ran away was Roni Varghese, a resident of Kalikkadavu. Thereafter, when PW8 had enquired whether Noufal required the presence of a Gazetted Officer for conducting his body search, Noufal had replied in the affirmative and had given the same in writing. The said request had been marked as Ext.P4. Thereafter, Sri.Biju Kumar was called and body search was conducted in the presence of Appukkuttan K. and Anu P.V., the independent witnesses and search list so prepared got marked as Ext.P15. He also deposed that during body search of the accused, from the left pants pocket of Noufal, ₹1140/-, Federal Bank ATM Card, Pan Card, Driving License, Aadhar Card, Mobile phone, and one Wrist Watch were recovered. Thereafter, he had examined the packets found behind the left seat of the driver and found 52 packets in the brown wrapper and found smell of ganja and it was found that the same were ganja containing leaves, fruits, and flowers. When Noufal was questioned as to whether the ganja was being transported on the strength of any documents, he disclosed that it had been transported from Andhra Pradesh for the purpose of sale. Thereafter, he was informed of the offence committed by him, and his arrest was recorded at 21.30 hours. Ext.P6 arrest memo and Ext.P7 inspection memo were tendered in evidence through PW8. He also identified Exts.P1 to P4 and MO1 to MO4 (₹1140/-, Federal Bank ATM Card, Pan Card, Driving License, Aadhar Card, Mobile phone, and one Wrist Watch). According to him, thereafter, he had seized the ganja and the car used for transporting the same and Ext.P18 seizure mahazar was prepared and the same also tendered in evidence through PW8. In this regard, he had forwarded report under Section 57 of the NDPS Act and he identified the report as Ext.P21. Ext.P22 identified as the seizure mahazar prepared at the time of seizure of MOs and according to him, Ext.P23, he had forwarded the items including ganja to Judicial First Class Magistrate Court-I, Hosdurg. He also deposed about filing of Ext.P24, application for preparation of inventory and also identified the signature of the learned Magistrate therein. He also deposed about the collection of 8 samples marked as S1 to S8 from the contraband and he identified Ext.P24(a) as the inventory prepared and signed by himself and the learned Magistrate and also identified Ext.P24(b) as the certificate signed by the learned Magistrate. According to him, the learned Magistrate instructed to take only one sample and accordingly, one sample each were taken. He also identified Ext.P25 series photographs taken during preparation of inventory and Ext.P26 as the CD of the same photographs. He identified the sample collected as S1 to S8 as MO6 series 8 in numbers. He also identified Noufal/the 1^st accused, who was arrested by him on the date of detection at the dock. He also identified the 2^nd accused also.

Since the evidence of PW2, the Senior Manager of Federal Bank, Rajapuram Branch and PW3, the Bankman at Federal Bank, Bheemanadi Branch, during the relevant period has no relevance as far as the complicity of the appellant/1^st accused, the same need not be discussed.

PW4, who was the Village Officer, Bheemanadi, during the relevant period, deposed that, at the request of the police and on the basis of the mahazar furnished by them, he had inspected the place of occurrence and prepared Ext.P10 site plan. He further deposed that, as per Ext.P10, the place of occurrence was situated at Poongod in Bheemanadi Village and was marked as 'Y' and 'X' therein.

PW6, who was engaged in the vehicle business, deposed that he had entrusted an Innova car bearing registration No. KL 60 L 6360 to Muhammed Saheer for sale. According to him, there was an outstanding loan of ₹4½ lakhs with Mahindra Finance in respect of the vehicle. He further deposed that Muhammed Saheer had asked him whether the vehicle could be entrusted to Roni, to which he had consented. He stated that, on 28.01.2019, he had entrusted the vehicle to Muhammed Saheer and had gone to Mumbai in the month of February. He further deposed that Muhammed Saheer had later telephoned him and informed him that the vehicle had been intercepted with ganja. He also deposed that he did not know who the purchaser of the vehicle was.

PW7, to whom the Innova vehicle bearing registration No. KL 60 L 6360 had been entrusted, deposed that he had purchased the said vehicle from Muhammed Saheer. He further deposed that the vehicle had been entrusted to him on 28.01.2019. On the same day, at about noon, Roni Varghese had telephoned him and requested that the Innova vehicle be given to him. According to PW7, Roni Varghese had stated that he required the vehicle for three days and that, if he found it suitable, he would purchase it. PW7 further deposed that the vehicle had been given to Roni Varghese on rent on receipt of ₹6,000/- (Rupees Six Thousand Only) towards rent and that Roni Varghese had furnished his identity card. After three days, when PW7 contacted Roni Varghese and demanded the return of the vehicle, Roni Varghese had requested that he be permitted to retain the vehicle for two more days. PW7 further deposed that, one day before the agreed date of return of the vehicle, he had come across a news item in the WhatsApp group of his native place regarding the seizure of ganja. On opening the message, he had found that 112 kilograms of ganja had been seized from vehicle No. KL 60 L 6360. When he attempted to contact them over the phone, their phones had been switched off. He identified accused No.2 as the said Roni Varghese. He further deposed that Roni Varghese had called him at about noon on 28.01.2019 and that he had instructed him to reach the place by 4.00 p.m. However, Roni Varghese had reached only at about 6.30 p.m. Since he had arrived late, the agreement had not been executed, and therefore, PW7 had obtained the identity proof of Roni Varghese. He further deposed that the said identity proof had been marked as Ext.P12. According to him, at the request of the police, he had produced the identity proof, which had been seized under Ext.P11 seizure mahazar, in which he had signed as a witness.

PW9, an attestor to Ext.P27 scene mahazar, deposed that, on 04.02.2019, he had come to know that ganja had been seized. He further deposed that, on 05.02.2019, at about 11.00 a.m., he had seen the Deputy Superintendent of Police, the Sub Inspector, and the police party at Poongod, and that he had been informed that ganja had been seized from the said place on the previous day. He further deposed that he had signed Ext.P27 scene mahazar prepared by the police. According to him, the place of occurrence was situated in front of the house of Riyas and that his residence was located nearby.

PW11, an attestor to the seizure mahazar, deposed that, in the second month of 2019 (he did not remember the exact date), at about 8.00 p.m., when he reached Poongod, he had seen the Sub Inspector of Police, Chittarikkal, along with three or four police personnel. He further deposed that he had enquired about the matter, called the Ward Member, and informed him that the police had reached there. According to him, the Panchayat Member and he had reached the place of occurrence at about 8.30 p.m., near the house of one Shamsudheen. He further deposed that he had asked the Sub Inspector what the matter was. He had seen some material objects in an Innova car and had also seen the police calling the Excise party. Thereafter, the Excise officials had reached the place. He further deposed that Noufal, who was inside the vehicle, and the vehicle had been examined. According to him, Panchayat Member Anu had been along with him. He further deposed that the registration number of the vehicle was KL 60 63 with 'L' registration. He had seen packets inside the Innova car. The Excise officials and the police personnel had told him that the packets contained ganja. He further deposed that the body search of Noufal had been conducted. There were 52 packets. A purse containing ₹1,140/-, a Bank ATM Card, PAN Card, Aadhaar Card, and Driving Licence had been found in the possession of Noufal. He further deposed that, as told by the police, 2 kilograms each were found in the 52 packets. They had been kept in seven plastic covers and seized. He also deposed that, in each packet, there were 15 kilograms each. He further deposed that he and Anu had signed Ext.P18 seizure mahazar prepared at the place of occurrence. He had signed Ext.P16 at the time of the arrest of the accused. He further deposed that he had signed on the material objects also. He identified accused No.1 as the person arrested from the place of occurrence. During re-examination, he identified Exts.P2 and P3 as the documents seized from the possession of accused No.1. He also identified MOs.1 to 3 as the material objects seized from the place of occurrence.

PW13, who was the Sub Inspector of Police attached to the Office of the Deputy Superintendent of Police, Kanhangad, deposed that he had taken the first accused, Noufal, who was in police custody, along with the Inspector of Police, Nileshwar, to Andhra Pradesh for investigation. He further deposed that at about 9.00 a.m., on 17.02.2019, the 1^st accused Noufal had shown them a place at Annavara, Godavari Village, from where, according to him, one Kabareesh had supplied ganja. He further deposed that an observation mahazar had been prepared there. According to him, at about 11.00 a.m., as led by accused Noufal, they had reached Sreedevi Lodge, where Noufal had informed them that he had stayed in Room No.303 on 30.01.2019 in the name of one Suresh. He further deposed that the relevant records had been seized under a seizure mahazar. He further deposed that, on 11.03.2019, he had been present when the Manager of Federal Bank, Rajapuram Branch, had produced the receipt relating to the remittance of ₹37,500/-(Rupees Thirty-seven Thousand Five Hundred Only) made by Shereef P.K., and that he had signed Ext.P7 seizure mahazar under which the receipt had been seized. He further deposed that, on 15.03.2019, as instructed by the Investigating Officer, he had seized two vouchers relating to the remittance of ₹10,000/- (Rupees Ten Thousand Only) and ₹7,000/- (Rupees Seven Thousand Only) in the names of accused Nos.2 and 1, respectively, which had been produced by the Bank Manager under Ext.P9 seizure mahazar. He further deposed that he had also visited the Federal Bank, Rajapuram Branch, and had viewed the CD produced by the Senior Manager by playing it on a computer. According to him, the CD showed a young man remitting the amount. He further deposed that the CD had been seized under Ext.P29 seizure mahazar. The sealed cover containing the CD was opened in open court, and the CD was marked as Ext.P13, subject to the objection raised by the learned counsel for the defence that no certificate under Section 65B of the Indian Evidence Act accompanied the same. At the time of hearing, the admissibility of Ext.P13 was considered, and it was found that Ext.P13 had been marked without a certificate under Section 65B of the Indian Evidence Act and, therefore, was not admissible in evidence.

PW14, who was the Deputy Superintendent of Police, Kanhangad, during the relevant period, deposed that he had assisted in the investigation of the case. He further deposed that at about 12.45 hrs. on 01.08.2019, the Deputy Superintendent of Police had arrested accused No.3 in the case and that he had signed Ext.P31 arrest memo prepared in connection therewith. He further deposed that he could identify the accused.

PW15, who was working in the office of the Sub Regional Transport Officer during the relevant period, deposed that he had inspected the Toyota Innova car bearing registration No. KL 60 L 6360 pursuant to the request made by the Deputy Superintendent of Police, Kanhangad. He further deposed that the colour of the car was silky silver, whereas, as per the RC records, the colour of the vehicle was superior white. According to him, the chassis number and engine number tallied with the RC records. He further deposed that sun films had been pasted on the left and right side window glasses of the vehicle as well as on the rear glass. Ext.P13 was the certificate issued by him. He further deposed that changing the colour of the vehicle without permission constituted a violation under the Motor Vehicles Act and that affixture of sun films was also a violation. According to him, one could not see inside the vehicle. He further deposed that Manoj S., the Regional Transport Officer, was his superior officer and that he could identify the signature of Manoj. He identified Ext.P33 as the RC particulars issued by the Regional Transport Officer, Manoj. According to Ext.P33, the registered owner of the vehicle was Basheer M., S/o K.A. Muhammed, Fathima Manzil, Koippady, Kumbla, and the colour of the vehicle was shown as superior white. He further deposed that PW16, PW17, and PW18 were the Investigating Officers.

Here, despite the production of Ext.P13 report prepared under Section 42 of the NDPS Act and Ext.P13(a) General Diary entry evidencing the information received by the Detecting Officer, the learned counsel for the appellant/1^st accused contended that there was non-compliance with Section 42 of the NDPS Act. According to the learned counsel, though the Sub Inspector of Police attached to the District Anti-Narcotics Special Action Force was the first person to receive the information, he had neither recorded the same anywhere nor reported it, in any manner and therefore, the Sub Inspector of Police attached to the District Anti-Narcotics Special Action Force failed to comply Section 42 of the NDPS Act.

In this context, it is relevant to refer to Section 42 of the NDPS Act, which reads as follows:

A thorough scrutiny of the statutory wordings under Section 42 of the NDPS Act would indicate that any officer referred to in Section 42(1) of the NDPS Act when intends to exercise the procedure laid down in clauses (a), (b), (c) and (d) of Section 42(1) of the NDPS Act shall take down in writing the information given by any person or the source of the personal knowledge before proceeding to exercise the procedure laid down in clauses (a), (b), (c) and (d) of Section 42(1) of the NDPS Act. Similarly, when an officer takes down any information in writing under sub-section (1) as dealt hereinabove shall within seventy-two hours send a copy of the written information to his immediate superior. If so, every officer dealt in Section 42(1) of the NDPS Act, if they are not intended to follow the procedure in clauses (a), (b), (c) and (d) of sub-section (1) of Section 42 of the NDPS Act need not take down in writing the information either from his personal knowledge or given by any other person. At the same time, it is mandatory for the officer, who intends to follow the procedure stated in clauses (a), (b), (c) and (d) of Section 42(1) of the NDPS Act. To put it differently, if an information is received by an officer, who comes within the purview of Section 42(1) of the NDPS Act, such officer, merely because he is an officer referred to under Section 42(1) of the NDPS Act, need not record the same in writing if he simply forwards the information to another officer and does not opt to follow the procedure laid down in clauses (a), (b), (c) and (d) of sub-section (1) of Section 42 of the NDPS Act. Therefore, the contention raised by the learned counsel for the appellant/1^st accused in the instant case that the Sub Inspector of Police attached to the District Anti-Narcotics Special Action Force failed to comply Section 42 of the NDPS Act, found to be unsustainable and therefore, the said contention must fail. Otherwise, PW8, the officer, who followed the procedure in clauses (a), (b), (c) and (d) of Section 42(1) of the NDPS Act, complied the mandate of Section 42 of the NDPS Act, as per his evidence dealt in detail.

Coming to the contention raised by the learned counsel for the appellant/1^st accused regarding tamper-proof production of a contraband before the court and tamper-proof production of the same before the Forensic Science Laboratory, it could be seen that the contraband was intended to be produced before the Sessions Court (Special Court under the NDPS Act). It is true that initially, the same was produced before the Judicial First Class Magistrate Court-I, Hosdurg, for the purpose of making first remand of the accused on 04.02.2019, even though the thondy list was addressed to the Sessions Court, Kasaragod. As per the entry made by the learned Magistrate, the property was ordered to be produced before the Sessions Court by the learned Magistrate and on 06.02.2019 and on the same day, the Sheristadar received the same. According to the learned counsel for the appellant/1^st accused, the prosecution failed to adduce evidence to find out, who produced the contraband taken from the Magistrate Court to the Sessions Court. In fact, the evidence of PW8 would show that he had produced the contraband before the court. The evidence given by PW8 during his re-examination by the learned Public Prosecutor is that the contraband and the material objects (MOs) produced before the court were not seen by him thereafter. Based on this evidence, it is contended by the learned counsel for the appellant/1^st accused that there is no evidence to show production of the contraband from the Magistrate Court to the Sessions Court. In fact, PW8 was not cross-examined in this regard and his evidence regarding production of the contraband before the court during chief examination would remain as un-challenged. Therefore, this contention cannot be appreciated. As per the forwarding letter, it is decipherable that the sample collected from the contraband was forwarded to the Forensic Science Laboratory.

In this regard, it is relevant to refer Ext.C1 Chemical Analysis Report. It is true that as per Ext.C1, the samples reached the Forensic Science Laboratory on 01.04.2019. In the report, it is specifically stated that “One sealed brown paper parcel, seals tallied with the seal impression given in the forwarding note and the seals were intact” was the received item. This would show that the sample of the contraband seized from the appellant/1^st accused reached the Forensic Science Laboratory in a tamper-proof condition and on examination of the same, the expert opined that the material objects in Item Nos.1, 2, 3, 4, 5, 6, 7 and 8 are ganja, supporting the prosecution case. Therefore, this contention raised by the learned counsel for the appellant/1^st accused also would necessarily fail.

It is relevant to note that the learned counsel for the appellant/1^st accused submitted that Section 50 of the NDPS Act also not complied. In fact, this submission appears to be too childish and has no legs to stand. This aspect seems to have been advanced as the leared counsel for the appellant/1^st accused could not find any sustainable contentions to upset the verdict impugned. Going by the evidence of PW8, it is perceptible that before body search of the appellant/1^st accused, the appellant/1^st accused given Ext.P4 intimation to opt his right to be searched before a Gazetted Officer or a Magistrate and accordingly, PW8 called Sri.Biju Kumar, the Range Excise Inspector, Hosdurg, and body search was conducted in his presence, though no contraband recovered. In fact, in the instant case, Exts.P4 intimation and P15 search list signed by the Gazetted Officer would show that body search was conducted in the presence of the Gazetted Officer in tune with the mandate of Section 50 of the NDPS Act. Even otherwise, since no contraband recovered from body search and the contraband was recovered from the Innova car, non-compliance of Section 50 of the NDPS Act, is of no consequence. Therefore, this contention also must fail.

Thus, on re-appreciation of evidence, it is held that the learned Special Judge is the right in finding that the appellant/1^st accused committed offence punishable under Section 20(b)(ii)(C) of the NDPS Act. Therefore, the conviction does not require any interference.

Coming to the sentence, the sentence imposed by the learned Special Judge is the least minimum possible. In this connection, it is relevant to note that the appellant/1 accused is a person having involvement in six more crimes, out of which, five crimes are under the NDPS Act. The list of crimes are as under:

In view of the above, the sentence also could not be interfered with.

In the result, this appeal fails and is accordingly dismissed. The conviction and sentence imposed by the learned Special Judge are confirmed.

Registry is directed to forward a copy of this judgment to the Special Court, forthwith, for information.