OUSEPH Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant in this case was convicted by the Court of the Sessions judge, Thodupuzha for offences punishable under S. 20 (b) (i) of the narcotic Drugs and Psychotropic Substances Act, 1985 and was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 25,000. 00 and in default to undergo further imprisonment for a period of one year. The high Court of Kerala at Ernakulam has confirmed the said conviction and sentence and the appellant is now before us in this appeal.

(2.) Though many questions of law and facts have been argued in this case on behalf of the appellant, we think it is sufficient to consider one question which according to us goes to the very root of the prosecution case as also the conviction and sentence imposed by the two courts below. According to the prosecution the contraband of 5 kilograms of dried ganja was seized from the room belonging to the appellant on 14/9/1990. There is no evidence whatsoever to show that at the time of seizure, all this alleged contraband by pw 2 Sub-Inspector of Police was sealed. It is the prosecution case itself that the said contraband was handed over to PW 5 Circle Inspector of Police on 17/9/1990. Even at that point of time there is no evidence to show that this contraband was sealed, on the contrary it is the evidence of these two police officers that the same was not sealed, though they contended that it was kept in safe custody. It is the further case of the prosecution that they took the permission of the jurisdictional court on 13/10/1990 to take sample for the first time from the original stock of the contraband to send the same to the chemical Examiner. But the same was sent only on 28/11/1990 nearly after a month the permission of the court was obtained. Till this stage the seized contraband was not kept in a sealed condition. The Chemical Examiner filed his report on 30/5/1991 who found that the sample sent to him was ganja, a contraband under the Act. The courts below accepting this fact and other evidence led by the prosecution have found it sufficient to base the conviction.

(3.) Learned amicus curiae appearing for the appellant contended before us that the alleged contraband unsealed were kept with the investigating agency from 14/9/1990 till 28/11/1990 nearly two months without being sealed, therefore, there is every possibility of the same being tampered with. The courts below have rejected this argument on the ground that such a huge quantity of cannabis, nearly 5 kilograms could not have been purchased by the investigating agency to implicate the appellant forgetting that there is a statutory requirement to seal the seized articles. Under the provisions of s. 55 of the said Act, this requirement may not be mandatory but on facts of this case, keeping the contraband articles in an unsealed condition for such a long time creates doubt in our mind. The period of non-sealing in the circumstances of this case does give rise to a doubt that there might have been a possibility of tampering which cannot be ruled out, more so because sample sent to the Chemical Examiner is a small quantity. The trial court proceeded on the basis that from the statement of the police it showed that it was kept in a safe place, therefore, no prejudice has been caused to the appellant. The prejudice in our opinion is apparent if the seized articles are different from the articles sent to the Chemical Examiner which in this case we cannot say with certainty that the said manipulation has not happened. Therefore, on this ground alone this appeal succeeds and is allowed and the appellant is acquitted. His bail bonds stand discharged. We place on record our appreciation for the services rendered by Mr. L. K. Pandey, and direct the payment of Rs. 750. 00 towards the payment of amicus curiae.