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Palayan v. State Of Kerala
Concise Analytical Summary of the Opinion
Factual and Procedural Background
The appellant challenged his conviction under Sec. 20(b)(i) of the N.D.P.S. Act and the sentence of rigorous imprisonment for three years with a fine of Rs. 10,000/- (in default R.I. for one year), imposed in S.C. 73/99 by the Special Court for trial for N.D.P.S. cases, Thodupuzha. When the appeal was filed he was undergoing sentence but was subsequently released on bail pursuant to this Court's order in Crl. A. 318/01 dated 8-2-2001.
The prosecution case (as recorded in evidence) is that on 23-11-97 PW 3 (a Head Constable) received information that a person from Cape Comorin had arrived from Koviloor and was roaming in Munnar with ganja. PW 3 conveyed this to PW 4 (Sub Inspector), who recorded the information in the GD, sent a copy to the Circle Inspector, proceeded to the vessel shop ‘AVM Anna Malai’ in Munnar, found the accused there, questioned him and was told there was ganja in a big shopper bag. PW 4 informed the accused of his right to be searched in the presence of a gazetted officer; the accused declined; PW 4 then searched the bag and body and seized 2 kg of ganja, prepared samples and a seizure mahazar, arrested the accused and took him to the police station. Contemporaneous documents (Ext. P1 seizure mahazar, Ext. P6 FIR) reached the trial judge the next day. Ext. P9 chemical analysis confirmed the seized sample was ganja.
Legal Issues Presented
- Whether there was violation of Sec. 42(2) of the N.D.P.S. Act entitling the accused to acquittal?
- Whether there was violation of Sec. 50 of the N.D.P.S. Act entitling the accused to acquittal?
- Whether the alleged violations of Secs. 52, 55 and 57 of the N.D.P.S. Act are sufficient to grant acquittal to the accused?
Arguments of the Parties
Appellant's Arguments
- There was gross violation of the provisions of Secs. 42(2), 50, 52, 55 and 57 of the N.D.P.S. Act, which, according to counsel, entitled the accused to acquittal.
- There was insufficient evidence to show that the accused was in possession of 2 kg of ganja at the veranda of AVM Anna Malai Vessels shop at Munnar at about 11 p.m. on 23-11-97.
- Counsel relied on authorities (including K. Mohanan, Gurbax Singh and others) to contend that non-compliance with procedural safeguards in the cited sections was fatal to the prosecution.
Prosecution Case and Evidentiary Points (as presented in the opinion)
- PW 3 received and passed specific information about a person carrying ganja in Munnar; PW 4 acted on that information, recorded a GD entry, sent a copy to the Circle Inspector and proceeded to the scene.
- PW 4 questioned the accused, the accused admitted possession, was informed of his right to be searched in the presence of a gazetted officer and declined; PW 4 then conducted the search and seized 2 kg ganja, prepared samples and seizure mahazar and produced the accused and material before the trial court the next day.
- Contemporaneous documents reached the trial judge next day; PW1 and PW2 later turned hostile but admitted signatures in the seizure mahazar; chemical analysis (Ext. P9) confirmed the substance as ganja.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Abdul Azeez v. State of Kerala (2001 (1) KLT 805) | Held that Sec. 42(2) applies only where information relates to contraband in a building, conveyance or enclosed place, not where the information concerns a public place. | The court relied on this decision to conclude Sec. 42(2) did not apply to a person standing in front of a shop (a public place), so non-compliance with Sec. 42(2) did not entitle the accused to acquittal. |
| K. Mohanan v. State of Kerala ((2000) 10 SCC 222) | Holds that merely asking an accused whether he requires to be searched in the presence of a gazetted officer or Magistrate may not amount to communicating the legal right and may amount to violation of Sec. 50. | The court noted the appellant relied on this case but distinguished it in light of larger bench authority; it did not treat K. Mohanan as prevailing law in this matter. |
| Joseph Fernandez v. State of Goa ((2000) 1 SCC 707) | Three-Judge Bench held the narration "if you wish you may be searched in the presence of a gazetted officer or a Magistrate" is sufficient compliance with Sec. 50. | The court held Joseph Fernandez (a larger bench) takes precedence over K. Mohanan and supported the view that the form of option given here (to be searched in presence of a gazetted officer) was sufficient. |
| N.S. Giri v. Corporation of City of Mangalore ((1999) 4 SCC 697) | Authority for the proposition that where different Benches express different opinions, subordinate courts should follow the opinion of the larger Bench. | The court invoked this principle to follow the larger Bench decision in Joseph Fernandez over the two-judge Bench in K. Mohanan. |
| Marakkar v. State of Kerala (2001 (3) KLT 539) | Holds that failure to mention one option (e.g., mentioning only a gazetted officer and not a Magistrate) is not fatal if there is no evidence of prejudice to the accused. | The court applied this reasoning to conclude omission to mention the Magistrate did not vitiate the search, in absence of prejudice. |
| Gurbax Singh v. State of Haryana ((2001) 3 SCC 28) | Referenced as a case where certain procedural deficiencies in seizure were found significant. | The court distinguished the present facts from Gurbax Singh, noting that in the present case the seizure was made by the officer-in-charge directly and the procedural deficiencies noted in Gurbax Singh did not exist here. |
| Karnail Singh v. State of Rajasthan ((2000) 7 SCC 632, para. 10) | Explains distinction between "officer-in-charge of the nearest police station" and officers empowered under Sec. 53; applicability of Sec. 55 (affixing seals) depends on which procedure and officer is involved. | The court quoted and relied on this passage to hold that when arrest and seizure are by the officer-in-charge of the station, compliance with Sec. 55 may not be insisted upon in the same manner as when officers under Sec. 53 are involved; hence no fatal violation of Secs. 52/55 here. |
Court's Reasoning and Analysis
The court examined each point raised by the appellant by applying statutory text, contemporaneous documentary evidence and relevant precedents. The analysis proceeded as follows:
- Sec. 42(2): The court accepted the principle in Abdul Azeez that Sec. 42(2)'s stricter writing/notification requirement applies only where the information relates to contraband in a building, conveyance or enclosed place. The veranda/front of a shop is a "public place" (per Sec. 43 explanation), not an enclosed place or conveyance. PW 4 had recorded the information in the GD and sent a copy to the Circle Inspector; because the information did not concern a building/conveyance/enclosed place, the officer need not have complied with the additional writing requirements of Sec. 42(2). Therefore any alleged failure under Sec. 42(2) did not warrant acquittal.
- Sec. 50: The court reviewed PW 4's evidence and contemporaneous documents (Ext. P1 seizure mahazar and Ext. P6 FIR) which indicated the accused was asked about his option to be searched in the presence of a gazetted officer. While the appellant relied on K. Mohanan (two-judge Bench), the court held that the three-judge Bench decision in Joseph Fernandez, supported by the N.S. Giri principle of following the larger Bench, controls. Joseph Fernandez finds that wording such as "if you wish you may be searched in the presence of a gazetted officer or a Magistrate" satisfies Sec. 50. The court also relied on Marakkar for the proposition that omission to mention one option (here the Magistrate) is not fatal absent prejudice. Since PW 4 gave the option of a gazetted officer and the accused declined, the court found no ground for acquittal under Sec. 50.
- Secs. 52 and 55: The court noted these sections are not mandatory in character and, importantly, are directed differently depending on which officer conducts the arrest/seizure. The seizure in this case was effected by the officer-in-charge of the police station (PW 4) directly; Sec. 52(3) is applicable mainly where empowered officers other than the officer-in-charge make arrest/seizure. Relying on Karnail Singh, the court explained that the requirement to affix seals under Sec. 55 is linked to which procedural route is followed and which officer receives the articles. Because the officer-in-charge conducted the seizure and the accused and seized articles were produced before the Magistrate without delay, the court concluded there was no material violation of Secs. 52 or 55 that would justify acquittal; such provisions are directory and would warrant acquittal only if prejudice were shown, which was not the case.
- Sec. 57: Although Sec. 57 requires a report within 48 hours to the immediate superior officer, PW 4 stated he passed information to his superior. Even if there had been imperfect compliance, Sec. 57 is directory and non-compliance without prejudice does not warrant acquittal. The court found corroboration between PW 3 and PW 4, contemporaneous documents, and chemical analysis (Ext. P9) confirming the seized material was ganja; PW1 and PW2 admitted signatures in the seizure mahazar. On that basis the court found sufficient evidence to sustain conviction under Sec. 20(b)(i).
- Sentence and amendment Act IX of 2001: The court examined Section 41 of the amending Act (Act IX of 2001) and concluded that its benefit (reduced punishment) applies to cases pending trial, not to cases pending on appeal. Because this appeal was pending before the appellate court, the appellant was not entitled to the benefit of reduced punishment under the amending Act. Nonetheless, on consideration of the case circumstances and the quantity seized, the court reduced the substantive sentence from three years to two years while leaving the fine and default term unchanged.
Holding and Implications
Core Ruling: The court confirmed the appellant's conviction under Sec. 20(b)(i) of the N.D.P.S. Act and reduced the substantive term of imprisonment from three years to two years; the fine of Rs. 10,000/- and the alternative term (R.I. for one year in default) remain unchanged.
Consequences and immediate effects:
- The conviction stands; the appellant's substantive sentence is curtailed by one year (from three to two years' rigorous imprisonment).
- The monetary penalty and the default sentence imposed by the trial court remain unaltered.
- The court applied existing authorities to interpret procedural provisions (Secs. 42(2), 50, 52, 55 and 57) and found no prejudice to the accused that would warrant acquittal; thus no new legal principle or binding precedent was announced by the court beyond applying and following extant Supreme Court and High Court authority.
Note: The opinion emphasizes that several procedural provisions are of a directory nature and that acquittal is warranted only if prejudice is demonstrated; in this case the court found none and therefore confirmed conviction while granting a modest reduction in substantive sentence.
JUDGMENT
1. The appellant was undergoing sentence imposed in S.C 73/99 by the Special Court for trial for N.D.P.S cases, Thodupuzha at the time when this appeal was filed challenging the conviction under Sec. 20(b)(i) of the N.D.P.S Act and the sentence of Rigorous Imprisonment for three years and fine of Rs. 10,000/- (in default R.I for one year) imposed therefor. He was subsequently released on bail pursuant to the order of this court passed in Crl. A. 318/01 on 8-2-2001. The learned counsel for the appellant submitted that there is gross violation of the provisions contained in Sec. 42(2), 50, 52, 55 and 57 of the N.D.P.S Act and that the accused, in the circumstances, is entitled to get an acquittal. It was also pointed out by him that there was no sufficient evidence to find that the accused was in possession of 2 kg. of ganja carried in a big shopper bag while he was standing at the veranda of AVM Anna Malai Vessels shop at Munnar at about 11 p.m on 23-11-97 as alleged.
2. On the arguments advanced in this case the points that arise for decision are:
(i) Whether there is violation of Sec. 42(2) of the N.D.P.S Act entitling the accused to get acquittal?
(ii) Whether there is violation of Sec. 50 of the N.D.P.S Act entitling acquittal?
(iii) whether the alleged violation of Sec. 52, 55 and 57 are sufficient to grant the acquittal to the Accused?
3. Point (i): PW 3 who was the Head Constable working in the special branch of the police department at Idukki deposed that he got information that a person belonging to Cape Comarin had arrived from a place called Koviloor on 23-11-97 and that he was roaming about in Munnar town area with ganja in his hand. He pursued the matter and got specific information that the person was standing in front of ‘AVM Anna Malai’ which was a shop dealing in vessels at Munnar town. He conveyed the information to PW. 4 who was the Sub Inspector of Munnar Police Station.
4. PW. 4 has deposed confirming the receipt of the said information and according to him he recorded the information in the G.D of the Station and sent copy to the Circle Inspector of Police and thereafter reached the premises of the aforesaid vessel shop; found the accused there, ascertained his details and on questioning him the accused admitted that there was ganja in the big shopper bag held by him. PW. 4 therefore told the accused that he had a right to be searched in the presence of a gazetted officer and also asked whether he needed such presence. The accused replied that bringing of a gazetted officer was unnecessary and thereupon PW. 4 himself made the search of the bag and the body of the accused. It was then that 2 kg. of ganja was found and seized from the bag. After weighing the same, samples were prepared and after preparation of the seizure mahazar which was attested by other witnesses the contraband and arrested accused were removed to the police station and steps proceeded with.
5. It is pointed out by the learned counsel for the appellant that there was failure on the part of PW. 4 to strictly comply with the requirements of Sec. 42(2) in so far as the information and the search were both after sun set and before sun rise. According to him merely forwarding copy of the FIR to the superior officer was sufficient and under Sec. 42(2) PW 4 was bound to forward a copy of the information recorded by him as received from PW 3 forthwith and in the absence of such evidence the accused is entitled to an acquittal.
6. Even though a number of authorities were cited in support of the above contention, I think it would be sufficient if the decision in Abdul Azeez v. State Of Kerala (2001 (1) KLT 805) is referred to. The reason is that all the other decisions mentioned by the learned counsel for the appellant have been considered by me in the said decision which was upheld by the apex court notwithstanding challenge in SLP (Crl.) No. 3120/01. The finding in the aforesaid decision is that Sec. 42(2) would be applicable only in cases where the information received by the officer relate to availability of the contraband in a building, conveyance or enclosed place and that if the information relates to availability of contraband in a place other than these three, say, in a public place, Sec. 42(2) would not be applicable.
7. What is clear from the evidence of PW 3 and PW 4 is that the information related to availability of a person carrying ganja in front of a vessel shop in Munnar. The explanation appearing under Sec. 43 clearly shows that a hotel, shop or other place intended for use by or accessible by the public shall be deemed to be a ‘public place’. The portion in front of a shop cannot come within the scope of the words ‘building’ or ‘enclosed place’. Since the information did not relate to availability of contraband in one of the three places mentioned in Sec. 42(1) there was no need for PW 4 to comply with the requirements of reducing the information to writing other than in the form of GD entry. In the circumstances, the alleged violation of Sec. 42(2) does not entitle the accused to get an acquittal.
8. Point ii:— As already mentioned, evidence of PW. 4 is to the effect that he made the accused aware of his right to be searched in the presnece of a gazetted officer and that the accused opted against such search when the choice was given to him. What is recorded in the contemporaneous documents viz. Ext. P1 seizure Mahazar and Ext. P6 FIR, both of which have reached the trial judge on the very next day was that the accused was asked about his option to be searched in the presence of a gazetted officer. There was no reference to the fact that any option to be searched in the presence of a gazetted officer. There was no reference to the fact that any option was given for search in the presence of a Magistrate. According to the learned counsel for the appellant this is fatal and amounts to failure to strictly comply with the requirements of Sec. 50.
9. During hearing counsel for the appellant placed reliance on the decision in K. Mohanan v. State Of Kerala ((2000) 10 SCC 222) wherein the finding is that where an accused is merely asked whether he requires to be searched in the presence of a gazetted officer or a Magistrate, it cannot be treated as communicating to him that he has a right under law to be searched so and that hence there will be violation of Sec. 50 of the N.D.P.S Act in such case. The said decision was rendered by a Bench of two judges as against which there is a decision of a Bench of three Judges in Joseph Fernandez v. State of Goa, ((2000) 1 SCC 707). Therein the narration “if you wish you may be searched in the presence of a gazetted officer or a Magistrate” was found to be sufficient compliance of the requirements of Sec. 50. N.S Giri v. Corporation of City of Mangalore, (1999) 4 SCC 697) is authority for the proposition that when different Benches of the Supreme Court have expressed different opinions on a point the proper course for a subordinate court or authority is to follow the opinion of the larger of those benches. ‘Joeph Fernandez’ has therefore to take precedence over ‘K. Mohanan’. Of course, in the present case the reference in the question put to the accused was only to the gazetted officer and not to the Magistrate. The question then arises whether the mention of only one of two options violates the law. This aspect is covered by the Bench decision of this court in Marakkar v. State of Kerala (2001 (3) KLT 539). It was found that in the absence of evidence of prejudice the failure to mention one of the options by the police officer would not tantamount to violation of Sec. 50.
10. In the present case the evidence of PW. 4 and the contents of the contemporaneous mahazar show that option for search in the presence of gazetted officer was in fact given. Hence there is no scope for acquittal on the ground of violation of Sec. 50.
11. Point iii:— Though serious arguments were advanced by the learned counsel for the appellant based on requirements of Secs. 52 and 55, I do not think that these Sections have much relevance in the present case. First of all those sections are not mandatory in character. That apart, unlike the case of Gurbax Singh v. State Of Haryana. ((2001) 3 SCC 28) relied on by the Appellant the seizure in the present case is made by the officer in charge of the police station himself directly. On arrest the accused was removed to the police station and after completion of the procedural formalities he was produced before the trial Judge without delay, alongwith all records. Unlike the deficiency pointed out in the above case, in the present case the sealing was with the official seal of the Sub Inspector himself and the witness was not allowed possession of the seal. It is clear from Sec. 52(3) of the Act that the Section is applicable only to cases where the arrest and seizure are by empowered officers other than the officer in charge of the police station. As far as arrest and seizure by the officer in charge of the local police station is concerned it is sufficient if the accused and the seized contraband are produced before the Magistrate as directed in Sec. 52(2) of the Act. In this regard the following observation of the Apex Court in Karnail Singh v. State Of Rajasthan. ((2000) 7 SCC 632 (para. 10)) are relevant:
“With the application of Sec. 51 read with Secs. 52 and 53 of the Act, the officer require to affix the seal etc., under Sec. 55 of the Act would be “the officer-in-charge of the nearest police station” as distinguishable from an officer-in-charge of a police station empowered under Sec. 53 of the Act. If resort is had to the procedure prescribed under sub-section (3)(a) of Sec. 52, the applicability of Sec. 55 of the Act would be attracted but if the arrested person and the seized articles are forwarded under clause (b) of sub-section (3) of Sec. 53 of the Act, the compliance of Sec. 55 cannot be insisted upon. The distinction between the officer-in-charge of the nearest police station and the officer empowered under Sec. 53 of the Act is distinct and clear. The distinction is apparently based upon a reasonable object, because as in case the person and the seized articles are referred to the ‘officer-in-charge of the nearest police station’, a distinct agency, than the officers contemplated under Sec. 53 of the Act, comes into the picture which requires the taking of sufficient safeguards to protect the seized property in the interests of the arrested persons. The distinction is also evident from Sec. 52-A(2) of the Act. Keeping in view the multifarious activities and the duties cast upon the officers in charge of the police station under the Code of Criminal Procedure and he being apparently busy with the duties under the Code, the officers mentioned in Sec. 53 of the Act have been mandated to take action for disposal of seized narcotic drugs and psychotropic substances by filing application which, when filed, has to be allowed by the Magistrate as soon as may be”.
12. In these circumstances, I do not think that there is any violation of Sec. 52 or 55. In any case there are provisions of directory nature and can justify acquittal only if prejudice is caused. Such evidence is absent here.
13. Sec. 57 of the N.D.P.S Act directs that whenever any person makes any arrest or seizure under the Act he shall, within 48 hours after such arrest or seizure, make a full report of the particulars of such arrest or seizure to his immediate superior officer. In the present case, PW. 4 has stated that he passed on the information to his official superior. Even assuming that there has been no strict compliance with the requirements under Sec. 57, that is not a ground for acquittal, the reason being that Sec. 57 is only directory and there is no evidence to show that the Accused was prejudiced by the failure to comply with the Section. On a perusal of the evidence in this case I am satisfied that there is sufficient corroboration to the evidence of PW. 4 forthcoming from PW. 3. PW. 1 and PW 2, though they turned hostile, have admitted their signatures in the seizure mahazar. The facts recorded in contemparaneous documents which have reached the trial Judge on the very next day also provides corroboration to the evidence of PWs. 3 and 4. Ext. P9 chemical analysis report shows that the sample seized from the accused was genuine ganja. In the circumstances the conviction entered against the accused for the offence under Sec. 20(b)(i) of the Act deserves to be confirmed. I do so.
14. As regards sentence it is pointed out, based on the provisions of the Act as they stand amended as per Act IX of 2001, that the sentence deserves to be reduced as the quantum seized is not commercial quantity. The said sec. 41 reads as follows:
“Application of this Act to pending cases:—(1) Notwithstanding anything contained in sub-section (2) of Sec. 1, all cases pending before the courts or under investigation at the commencement of this Act shall be disposed of in accordance with the provisions of the principal Act as amended by this Act and accordingly, any person found guilty of any offence punishable under the principal Act, as it stood immediately before such commencement, shall be liable for a punishment which is lesser than the punishment for which he is otherwise liable at the date of the commission of such offence:
Provided that nothing in this section shall apply to cases pending in appeal.
(2) For the removal of doubts, it is hereby declared that no Act or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this Act has not come into force.”
15. It is clear from the section that the reduction in sentence would be applicable only to cases which are pending trial and not to a case pending before appellate court in appeal as it happens here. Hence sentence to be passed in this case is strictly to be in accordance with the provisions contained in the Act before it was amended as per Act IX of 2001. The ganja seized in the case is not a small quantity. The maximum sentence for the offence under Sec. 20(b)(i) is imprisonment which may extend up to a period of 5 years and fine which may extend to Rs. 50,000/-. The trial court has chosen to give imprisonment for a period of three years and fine of Rs. 10,000/-. Considering the circumstances of the case I am of the view that the accused is entitled to some reduction in the matter of the substantive term. The period of sentence is accordingly reduced from three years to two years. There will be no change in the fine amount or in the alternative term. With the said reduction in sentence the appeal is disposed of. The trial court will enforce the punishment imposed as above.
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