Sam Swaminathakumar vs State of Kerala

M.R. Hariharan Nair

Before the II Additional Sessions Court, Trivandrum (Special Court for trial of N.D.P.S. Act cases) the petitioner herein raised a contention that instead of the charge under Sections 21 and 22 of the N.D.P.S. Act framed against him, a charge u/s 27 alone can be framed and that after framing of such charge the case be made over to the Chief Judicial Magistrate''s Court, Trivandrum for summary trial. The petitioner is aggrieved that the said request was turned down as per the impugned order and it was found that the special court is competent to proceed with the case. This case has had a chequered career. The seizure in question took place on 10-10-1987. It was an Excise Inspector who detected the offence at 2.30 p.m. on 10-10-1987. 4 mgs. of Pethedine Hydrochloride ampules, 3 Nitrazepam dormin capsules, 3 old injenction needles, 17 covers of Nitrazepam dormin-10 capsules, broken pieces of Pethedine ampoules, two injection Syringes, 12 needles and one steriliser were seized from the Medical Shop by name Gemini Medicals, Trivandrum owned by the accused. Four 50 mgs. Pethedine Hydrochloride ampules and 3 Nitrazepam dormin-10 capsules were actually in the pocket of the pants worn by the accused. After trial, the special court convicted the accused for the offence under Sections 21 and 22 of the N.D.P.S. Act and sentenced him to undergo R.I. for a period of 18 years and fine of Rs. 2 Lakhs and in default to undergo R.l. for 3 years. In Crl.A..No. 162 of 1989 filed by the accused the conviction and sentence were set aside and the case remanded with direction to consider whether the aforesaid quantity would come within the definition of ''small quantity'' as contemplated in Section 27 of the N.D.P.S. Act. The court found the question against the accused and fresh conviction for offence under Sections 21 and 22 of the Act ensued. The accused was also sentenced to undergo R.l. for 10 years and to pay a fine of Rs. 1 Lakh. The accused challenged that conviction through Crl.A. No.329 of 1990 before this Court. It was argued that since the detection of the offence was in 1987, which is prior to the amendment, the accused has a right to be tried before a Magistrate summarily as contemplated in Section 36 of that Act as it stood then. This Court accepted the contention and found that only charge u/s 21 would lie. The matter was therefore remanded to the Judicial First Class Magistrate''s Court, Trivandrum for fresh trial and disposal and accordingly it was taken to files as S.T. 107 of 1991 and proceeded with. The accused raised a preliminary objection before that Court that the Circle Inspector of Excise was incompetent to file a final report in the case. The learned Magistrate rejected the prayer, which was challenged before this Court in Crl.R.P.No.317 of 1992. This court accepted the contention of the accused and passed an order of discharge. This Court thereafter made the following observation: "It is made clear that the Circle Inspector of Excise can very well report the matter to the police and the police can conduct an investigation and file a report under Sec. 173 Cr.P.C.

In compliance with the said direction the police filed fresh charge sheet before the Special Court for trial of N.D.P.S. Act cases, Trivandrum and cognizance was again taken for the offence under Sections 21 and 22 of the Act. The case was made over to the Additional Special Court for further trial when contention that charge should be filed u/s 27 and that the trial also should be before a Magistrate was repeated by the accused. In the impugned order passed after considering the said submission the special court found that at present only the Special Court is empowered to take cognizance and to try offenders under the Act and u/s 36A of the Act all the offences under special enactments are triable only by Special Court. A denovo trial by the special Court was hence found justified. It is aggrieved by the said finding and the refusal to make over the case to the Chief Judicial Magistrate''s Court for trial that the revision is filed.

Shri. V.N. Achutha Kurup, who argued the case of the revision petitioner, submitted that according to well accepted principles governing criminal trial the forum for trial has to be governed by the law as it stood on the date of occurrence and that if so, the only forum before which the trial could take place by virtue of Section 36 of the Act as it originally stood was Magistrate of the First Class and the manner of trial as far as offence u/s 27 of the Act is concerned was summary trial. It was also contended that since this Court has already discharged the accused for the offence u/s 27 of the N.D.P.S. Act vide Annexure C Judgment, all further proceedings initiated by the Special Court for trial of N.D.P.S. Act, cases are without jurisdiction. Lastly it is submitted that the Excise Inspector who detected the offence was not competent to make searches and seizure under the N.D.P.S. Act and for that reason the entire proceedings have to be stopped.

I have heared the learned Government Pleader, who also expressed the view that when there is a seizure effected by an incompetent officer there is no scope for further proceedings.

On a consideration of the contentions raised before me, I am of the view that the revision deserves to be allowed for more than one reason. First of all, the consequence of the discharge allowed by this Court as per Annex. C judgment was based on a specific finding that the offence in question comes within the purview of Section 27 of the N.D.P.S. Act; that the evidence adduced in the case through DWs 1 to 3 was sufficient to conclude that the quantity of the contraband seized from the accused was a small quantity and that the accused was holding it for his own personal consumption. In view of the discharge allowed by this Court, there was no scope for any further continuance of the proceedings. But this Court left it open for the police to conduct further investigation u/s 173 of the Cr. P.C. It is doubtful whether any such direction cold have been legally given after entering a specific finding that the accused was liable to be discharged u/s 27 of the N.D.P.S. Act.

That apart, here is a case where the detection was made by an excise Inspector, who admittedly was not competent to make search and seizure with regard to the offence under the N.D.P.S. Act. There was no notification empowering Excise Inspectors with powers under Sections 41 and 42 as on 10-10-1987. Such notification came only on 18-12-1990 (vide SRO 1729 and 1730 of 1980 - G.O. (Ms) Nos. 145 and 146 of 1990). The question of legality, validity and consequence of the seizure effected by an incompetent official came up for consideration of the Apex Court in State of Punjab Vs. Balbir Singh, . In paragraph 14 of the judgment it was found, after surveying the case law on the point that if arrest or search contemplated in Sections 41 and 42 was made by any officer not empowered or authorised, it would perse be illegal and would affect the prosecution case and consequently vitiate the trial. The said view has been followed in very many subsequent case also. (eg: See Roy v. State (2001 (1) KLT 86 (S.C.) In view of the said position, the illegality behind the seizure goes to the root of the matter and a re-trial for the offence, even if it is ordered before the Magistrate, as prayed for before the Sessions Court, would not yield any result. That apart, the accused herein has already been discharged by this Court from offence u/s 27 of the Act and there is a specific finding that the seizure in question goes beyond the purview of Sections 21 and 22, but falls u/s 27 itself, for which the discharge is already ordered. In the circumstances I am convinced that there is no scope or need for any further proceeding in S.C. No. 34 of 1994 of the II Additional Sessions Court, Trivandrum. Continuance of the proceeding in that case will constitute abuse of the process of court and entail wastage of time for all concerned. In the circumstances I invoke the power u/s 482 of the Cr. P.C. and quash the charge and all further proceedings in the said case. It may be mentioned here that this is essential on the facts of this case in view of the direction of the Apex court contained in para 18 of the judgment in Roy''s case (supra)

The revisions is allowed as above.