NAUSHAD Vs. STATE OF KERALA

JUDGEMENT

(1.) This appeal is directed challenging the conviction and sentence delivered by the IInd Addl. Sessions Judge, Ernakulam in C.C. No. 43 of 1995. The learned Sessions Judge found the appellant accused guilty under S.22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") and thereby sentenced him to undergo Rigorous Imprisonment for 10 years and also to pay a fine of Rs. 1 lakh, in default in the payment of fine to undergo Simple Imprisonment for a period of one year on the following facts and evidence let in by the prosecution.

(2.) PW 11, the Sub Inspector of Police attached to the Mattancherry Police Station, would testify that he received a phone call at about 12.15 p.m. on 29.6.1995 from an unidentified person that psychotropic substances had been kept and sold in the house of the appellant located at a lane near the Community Hall at Karippalam. PW 11 recorded the above said information and informed the same to the Assistant Commissioner and the copy of the report recorded is marked as Ext. P16. Then PW 11 proceeded with his police men to the said house of the appellant and searched there at about 12.30 p.m. On disclosing his identity to PW 3, mother of the appellant and other inmates present there, he searched the house since they did not desire to search the house in the presence of the Magistrate or any Gazetted Officer. However, before search, he sent one of his men to bring a Magistrate or a Gazetted Officer. But he could not procure either a Magistrate or a Gazetted Officer. During the course of the search PW 11 found 15 ampoules of tidigesic injunction, 4 ampoules of promethezine Hydrochloride injunction, 2 disposable syringes with needles and 3 disposable needles on the western end of the beam located on the said room occupied by the appellant. The search list is marked as Ext. P1. The sample signature and white covering paper are marked as Exts. P2 and P3. The appellant was, after arrest, taken to the police station, where Ext. P18 first information statement was recorded. Material objects recovered by PW 11 were received in the court as per Ext. P11 property list. As per Ext. P11 property list, items 1 to 4 were in the sealed covers and seals were tallying with the sample seal as per the evidence of PW 8, the Head Clerk of the Sessions Court, Ernakulam. According to the further evidence of PW 8, on the requisition of the Investigating Officer, the materials were sent for chemical examination and report. After the examination, Ext. P9 report of the Chemical Examiner was received. PW 6 is the Joint Chemical Examiner attached to the Regional Chemical Examination Laboratory, Kakkanad, Eranakulam and she examined the articles and after the examination, she issued Ext. P9 certificate. PW 11, the Investigating Officer, on collecting the above statements, materials and evidence, filed the final report before the Sessions Judge. Since the appellant denied the charge framed against him under S.22 of the Act, the prosecution let in both oral and documentary evidence and also marked material objects. Learned Sessions Judge, as pointed out above, found the appellant guilty and convicted thereon.

(3.) Mr. P. Vijaya Bhanu, learned counsel appearing for the appellant would raise the following points, namely (1) that in the instant case the complainant and the Investigating Officer are one and the same and when that be so, it is not in accordance with the settled proposition of law. Such an act of the Investigating Officer would certainly invalidate the proceeding and ultimately the conviction is liable to be set aside; (2) the conviction under S.22 of the Act could not be upheld even if it is admitted for the sake of argument that the contraband was found in the possession of the appellant, having regard to the quantity of the narcotic substance recovered. In such situation, the conviction must be one under S.27 of the Act; (3) even under S.27 of the Act, the conviction cannot be sustained in view of the proposition of law laid down by the Apex Court in a recent decision and (4) when there is no reliable evidence that the room from which the article was seized was in the exclusive possession of the appellant, it could not be said that the appellant was in possession of the narcotic drugs.