JALEEL Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant is convicted under S.20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act; 1985 and has been sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 5,000/- with default sentence of imprisonment for one year. It is contended before me by the counsel for the appellant that the conviction is unjustified as at the time of search of the appellant's body, a Magistrate or a gazetted officer was not present. It is further contended that the alleged Tahsildar PW 1 was never present and even in his statement under 161, he had not stated to the Investigation Officer that sealing and sampling were done in his presence. The evidence given by PW 1 in that regard later in the court is subsequent additions. It is further submitted that there was no independent evidence in this case. The only independent witnesses are PW 3 and PW 4, who attested Ext. P1 mahazar, they turned hostile. Even PW 3 admitting signature in Ext. P1. PW 4 had also stated that he signed Ext. P1 in the police station. Therefore Ext. P1 mahazar itself is not proved. The further contention raised is that there is no due compliance of the procedure under S.55 of the Act, as no separate seal had been put in by the Station House Officer with his initials. Therefore, in such circumstances, as the labels in the packets No. 1 to 3 had been broken, it can easily be said that there was an attempt of tampering the samples and therefore the benefits arising there from shall be given to the accused.

(2.) It is contended that the Public Prosecutor that there was no violation of the provisions under S.55 of the Act. PW 1, the Tahsildar was only acting as a Magistrate to witness the search. He does not have the duty to say while making statement under S.161 as to whether sampling was done in his presence. The Detecting Officer and the Station House Officer had been one and the same. It has been sworn in by PW 6 that he had already sealed the samples at the time of seizure. In such circumstances a further sealing shall not be required in the station. Further sealing is required only when detecting officer and the station house officer are different and when there is entrustment of the articles seized to the Station House Officer. It is further submitted that even PW 1, the Tahsildar had submitted before court below that Ext. P1 had been signed by himself and the attesting witnesses. Therefore the evidence of PW 3 that he did not sign the mahazar does not affect the prosecution case. Even PW 4 had accepted the signature in Ext. P1 as of his own. When PW 1 had admitted that he had signed it in the place of occurrence, the subsequent version by PW 4 that he signed it in the police station is of no avail for the defence. So the contention of the appellant that there was no presence of a gazetted officer or a Magistrate cannot be accepted in the light of the evidence given by PW 1. Even in his statement under S.161 Cr. P.C., he had stated that body search of accused/appellant was done in his presence. That will be sufficient to complete the statutory formalities. Over and above, he had also deposed before the court below that PW 5 had been sent over to him to his office by PW 6 and he came to the spot. He witnessed the body search of the accused appellant and the sampling and that he had also put his signature in Ext. P1 mahazar. He had also identified Mos. 1 to 3, the samples taken and the whole of the quantity of ganja. In such circumstances, presence of a gazetted officer, PW 1, who himself is an Executive Magistrate is proved.

(3.) It is true that PW 1 in his statement under S.161 Cr. PC. has not stated anything about the sampling and sealing. That is not required. The duty of PW 1 on completion of the search of the body of the accused/appellant. Even then, when examined in the court below, he had spoken to the entire details including sampling and preparation of Ext. P1 mahazar.