Shinoy v. State of Kerala

The sole accused in S.C. No.17/2012 on the files of the Court of the Special Judge (NDPS Act Cases), Vatakara, has filed this appeal under Section 374(2) (now BNSS 415) of the Code of Criminal Procedure, 1973, (hereinafter referred to as “the CrPC”), challenging the conviction and sentence imposed upon him by the learned Special Judge, as per the judgment dated 29.10.2015.

2. Heard the learned counsel for the appellant and the learned Public Prosecutor. Perused the records of the Special Court and the verdict impugned.

3. In this case, crime was registered alleging commission of offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred to as the NDPS Act) by the appellant/accused, when PW1, the Excise Inspector, Tirur Excise range, while on patrol duty, found that the appellant/accused herein possessed 5 kgs of ganja in violation of the provisions contained in the NDPS Act.

4. Upon receipt of the final report, the learned Special Judge framed charge for the said offence and proceeded with the trial. During the trial, PWs.1 to 8 were examined, Exts.P1 to P16 and MOs.1 to 2 were marked on the side of the prosecution. No defence evidence was adduced.

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

“1) The accused is sentenced to undergo rigorous imprisonment for 10 (ten) years and also to pay a fine of Rs.1,00,000/-(Rupees one lakh only) in default, rigorous imprisonment for one year.

2) Set off u/s 428 Cr. P.C is allowed.”

6. The learned counsel for the appellant/accused argued that, in this case, there is serious procedural irregularity in conducting the trial, which prejudiced the right of the accused in getting fair trial. It is pointed out that, initially, the evidence of PWs.1 and 2 was taken by filing their chief affidavits on 09.01.2014, and based on the chief affidavits, the appellant was given an opportunity to cross-examine them. Thereafter, PWs.3 to 8 were examined in Court by the learned Special Judge without adopting the procedure of filing proof affidavits and completed prosecution evidence. It is submitted that, even though the procedure of recording the evidence of PWs.1 and 2 by filing chief affidavits was found to be erroneous, and on this basis PW1 was examined in chief on 03.06.2015, ignoring the chief affidavit, and on 30.07.2015, PW2 also examined in chief and both of them were cross-examined by the counsel for the appellant, after the examination of PWs.1 and 2 on 03.06.2015 and 30.07.2015, respectively, the investigating officer, who was examined as PW8, was not recalled for the purpose of giving the accused an opportunity to put questions to him regarding the evidence tendered by PWs.1 and 2. In such circumstances, the verdict impugned would require interference.

7. Whereas, it is submitted by the learned Public Prosecutor that, even though the Special Court followed an incorrect procedure for the examination of PWs.1 and 2 by filing chief affidavits, the same was rectified by subsequently examining them in chief and giving the appellant/accused an opportunity to cross-examine them. According to him, recording the evidence of material witnesses in a criminal case by filing proof affidavits is a procedure not known to law. The said procedure was given up by the Special Court itself by examining PWs.1 and 2 directly. It is pointed out that, when PWs. 1 and 2 were examined, subsequently, they were cross-examined by the appellant/accused, and during cross-examination, no contradictions were brought out in any form warranting the examination of the investigating officer to get the same proved. Therefore, no prejudice was caused to the accused/appellant. Accordingly, the learned Public Prosecutor pressed for confirmation of the verdict impugned.

8. Adverting to the rival contentions, the points that arise for consideration are:

(i) Whether the Special Court is justified in finding that the appellant/accused committed the offence under Section 20(b)(ii)(B) of the NDPS Act?

(ii) Whether the impugned verdict would require interference?

(iii) The order to be passed?

Point Nos. (i) to (iii)

9. First of all, it is necessary to address the infirmity in the procedure adopted by the learned Special Judge in the matter of examination of PWs.1 and 2, who were initially examined by getting their chief affidavits in lieu of chief examination, as on 09.01.2014. Thereafter, PWs.3 to 8 were also examined, and the prosecution evidence was completed. In this connection, it is relevant to note that the recording of evidence of witnesses in criminal cases is not permitted under the CrPC or under Bharatiya Nagrik Suraksha Sanhita, 2023, though such a procedure is permissible in a prosecution launched under the Negotiable Instruments Act. Therefore, the procedure adopted by the learned Special Judge initially, by examining PWs.1 and 2 by getting their chief affidavits, is illegal. Here, the learned Special Judge himself corrected the wrong procedure, and accordingly, PW1 was thereafter examined in chief on 03.06.2015 and PW2 on 30.07.2015. Thus, the illegal procedure, was corrected by the learned Special Judge himself, giving the accused/appellant an opportunity to cross-examine them. It is true that after the examination of PWs.1 and 2, PW8, the investigating officer, was not recalled or re-examined for the purpose of getting any contradictions proved. It is the settled law that when the procedure adopted during trial is found to be vitiated and the same caused prejudice to the accused, it would stand as an act detrimental to the interest of the accused in the matter of providing fair trial. In such situations, the trial may be held to be illegal, which would result in setting aside the judgment so rendered. However, when the procedure followed in no way caused any prejudice to the accused, upsetting the verdict, so delivered is not necessary.

10. Coming to the evidence, PWs.1 and 2 are the officers who noticed the possession of contraband by the appellant and detected the same. The evidence of PW1 is that, while he was on patrol duty on 04.10.2009, upon receiving information from a person that the accused was possessing ganja, he recorded the said information (Ext.P1) and conveyed the same over the phone to his superior officer. He further stated that, after conveying the information, he and his party proceeded to the spot, where the accused was found with a bag. When he asked about the contents of the bag, the accused stood perplexed. Then he had informed the accused of his intention to search his body and of his right to be searched before a Gazetted Officer or a Magistrate. On receiving a reply from the accused that, he could be searched by PW1 himself, he obtained the same in writing. Ext.P2 is the said consent memo signed by the accused. Even then, PW1 secured the presence of PW4, the Excise Circle Inspector, who is a Gazetted Officer. Thereafter, PW1 searched the body of the accused in the presence of a Gazetted Officer, but nothing was seized. He then searched the bag held by the accused, and when it was opened, he had found ganja therein. Accordingly, PW1 arrested the accused by preparing Ext.P3 arrest memo. Thereafter, he weighed the ganja and found its weigh as 5 kgs. Then he took two samples of 25 grams each in polythene covers. According to him, the samples were taken, sealed and the necessary labels were affixed. The contraband article was seized under Ext.P6 seizure mahazar. Thereafter, he took the accused and the articles to Range Office, then he had registered Ext.P7 crime and occurrence report. According to PW1, he had sent Ext. P8 Form ‘F’ Report, under Section 57 of the NDPS Act to his superior officer. PW1 testified that, as per Ext.P12 property list, he had produced the samples and other articles before the Court. He identified the same as Mos.1 and 2. He also identified the accused at the dock.

11. The accompanying officer, examined as PW2, also given evidence supporting the prosecution case. He stated that he was present, when PW1 arrested the accused and seized the contraband article. PW2, in fact, supported the evidence of PW1 without any material contradictions. As deposed by PW1, 5 kgs of ganja were seized as per Ext.P6 seizure mahazar. In order to support the evidence of PWs. 1 and 2 regarding the recovery, the prosecution examined PW5, an independent witness. During chief examination, he deposed that he had not witnessed the seizure of ganja and that he did not know the accused at the dock. On getting permission to declare him hostile, the learned Public Prosecutor put leading questions to him under Section 154 (now BSA 157) of the Evidence Act, and during this questioning, PW5 deposed that he had put his signature on the document prepared by the Excise officials at the waiting shed of the bus stop at KG Padi. During further questioning, he even admitted, in response to a suggestion that he had signed Ext.P6 mahazar when the ganja was seized from the accused. During cross-examination by the counsel for the accused, he also reiterated that he had put his signature in Ext.P6. Thus, it could not be held that PW5, though declared hostile during his cross-examination by the learned Public Prosecutor, he admitted the recovery of ganja as per Ext.P6, though he did not initially support the prosecution. Here, even though PWs.1 and 2 were subjected to searching cross-examination, nothing was elicited to discredit them in any manner. The Gazetted Officer, examined as PW4, in whose presence the accused was searched and the contraband were recovered, fully supported the prosecution case.

12. The defence case suggested during the cross-examination of PW1 is that the accused was arrested when he was found at odd hours and then he was implicated in this by using abandoned ganja. In this connection, it is relevant to note that nothing has been brought out in evidence to prove this case. Moreover, animosity on the part of PWs.1 and 2 to falsely implicate the accused in this crime also in no way established. PW6 is the Village Officer who, as required by the investigating officer, prepared and produced Ext.P16 sketch of the place of detection, given evidence in this regard. PW3 is the C.I. of the Excise Special Squad who conducted investigation. Ext.P15 is the positive Chemical Examination Report proved through him. PWs.5, 7 and 8 are the Excise Circle Inspectors who conducted the investigation. PW7 filed the charge sheet against the accused. Thus, by the evidence of PWs.1 and 2, would show that 5 kgs of ganja possessed by the appellant was recovered and samples thereof were taken in a tamper-proof manner and the same were produced before the Court in time. That is the reason why the learned counsel for the appellant did not raise any ambiguity in the evidence of PWs.1 and 2, though he has pointed out the procedural anomaly as extracted hereinabove.

13. As regards non-compliance of Section 42 of the NDPS Act, even though a contention was raised before the Special Court, the said contention was negatived by the learned Special Judge for the reasons stated in paragraph 18 of the Judgment. However, the said contention is not raised before this Court. Similarly, regarding compliance of Section 50 of the NDPS Act, no challenge was raised in this case, where the search was conducted in the presence of a Gazetted Officer, who was examined as PW4, even though Section 50 has no impact in the instant case, where on body search, nothing was recovered. The same is the position with regard to compliance with Section 57 of the NDPS Act.

14. In the instant case, going by the evidence of PWs.1 and 2, supported by Ext.P15, MOs.1 and 2, and the evidence of PW8, the investigating officer, the possession of 5 kgs of ganja by the accused/appellant is established.

15. Now, the crucial question to be decided is whether non-examination of the investigating officer, who was examined as PW8, after examination of PWs.1 and 2, subsequently, after eschewing their evidence given in the form of chief affidavits, caused prejudice to the appellant/accused, as contended by the learned counsel for the accused.

16. It is well-settled law that normally the investigating officer who recorded the previous statements of the witnesses would be examined after the examination of the said witnesses with a view to facilitate proof of contradictions brought out during the examination of the material witnesses. In the instant case, the evidence of PWs.1and 2 was initially recorded by getting their chief affidavits, and the learned counsel for the accused/appellant had also cross-examined PWs.1 and 2. Even though the said procedure is illegal, either during cross-examination of PWs.1 and 2 on the basis of chief affidavits or during cross-examination of PWs.1 and 2, when they were examined subsequently, on perusal of the evidence of PWs.1 and 2, no contradictions, either in the form of denial of previous statements or in the form of omissions, found to be extracted. It is, in this context, this Court is to consider whether any prejudice was caused to the accused in the matter of non-examination of PW8.

17. Here, as already discussed, during the further chief-examination and cross-examination of PWs.1 and 2, nothing was elicited warranting the recall and re-examination of the Investigating Officer, and the necessity for doing so was also not pointed out before this Court. As stated, apart from merely submitting that the non-examination of the Investigating Officer caused prejudice to the appellant/accused, the learned counsel for the appellant in no way disclosed how such prejudice was caused. Thus, in the facts of this case, it is held that no prejudice was caused to the accused by the recall and re-examination of PW8 after the examination of PWs.1 and 2.

18. Another contention raised is that, after the examination of PWs.1 and 2, after eschewing of their evidence, given by way of chief affidavits, no questions were put to the accused under Section 313 (now BNSS 351) of the CrPC. However, when this Court verified the statement under Section 313, this contention was found to be not justified, as it is discernible that, after the examination of PWs.1 and 2, ignoring their evidence given by way of chief affidavits, the incriminating circumstances brought out from their evidence were put to the accused and his answers thereto were recorded. Therefore, this contention is of no avail to the appellant.

19. To sum up, on re-appreciation of evidence, this Court is of the view that the Special Court rightly entered into finding of conviction, hoding that the appellant/accused committed the offence punishable under Section 20(b)(ii)(B) of the NDPS Act. Therefore, the said conviction is liable to be confirmed. Coming to the sentence, the learned Special Judge imposed sentence of imprisonment for a period of ten years and a fine of Rs.1,00,000/-. Since the quantity of ganja involved is intermediate, modification of sentence can be considered.

In the result, this appeal is allowed in part. The conviction imposed by the learned Special Judge for the offence under Section 20(b)(ii)(B) of the NDPS Act is confirmed. The sentence stands modified as under:

(i) The appellant/accused is sentenced to undergo rigorous imprisonment for four years and to pay fine of Rs.50,000/- (Rupees Fifty Thousand only) for the offence punishable under Section 20(b)(ii) (B) of the NDPS Act. In default of payment of fine, he shall undergo imprisonment for a period of six months.

(ii) Set-off is allowed.

(iii) The bail bond executed by the appellant/accused shall stand cancelled. The order suspending sentence and granting bail to the appellant/accused stands vacated, with direction to the appellant/accused to appear before the Special Court forthwith to undergo the sentence, failing which the Special Court is directed to execute the sentence, without fail.

Registry is directed to forward a copy of this judgment to the Special Court concerned for information and compliance.