SHAMEER Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant herein challenges the conviction and sentence against him under Section 22(C) of the Narcotic Drugs and Psychotropic Substances Act (for short, 'the NDPS Act') in S.C. No. 524/2014 of the Court of Session, Kollam. He faced trial before the learned IVth Additional Sessions Judge, Kollam on the allegation that at about 5 a.m. on 30.1.2014, he was found possessing 30 ampoules of Buprenorphine; each ampoule containing a quantity of 2 ml. The offence was detected by the Circle Inspector of Excise, Kollam during his usual patrol duty. During patrol, the excise party saw the accused riding on the motorcycle No. KL 2Q/8060. The Excise Circle Inspector intercepted the vehicle, and questioned the accused. On suspicion regarding possession of some narcotic drug, he expressed his intention to the accused to search his body, and accordingly, he searched the body of the accused after informing him of his right under the law to be searched in the presence of a Gazetted Officer or a Magistrate, and seized 30 ampoules of Buprenorphine contained in a packet kept inside the petrol tank cover of the motorcycle. The accused was also arrested on the spot. Three ampoules were taken as sample, and the sample packets were sealed properly. The remaining quantity of ampoules was also well packed and sealed. On the basis of the arrest and seizure, a crime was registered at the Excise office, and the details of the detection were reported to the Assistant Commissioner of Excise, Kollam, by the Circle Inspector. The Circle Inspector himself conducted investigation, and filed complaint in court under Section 22(C) read with Sections 28 and 29 of the NDPS Act. It is doubtful whether the quantity in this case would constitute commercial quantity. The issue is now before a larger Bench of the Hon'ble Supreme Court.

(2.) The accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against him. The prosecution examined 15 witnesses, and proved Exts. P1 to P29 documents. The MO1 to MO3 properties were also identified. The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C, and projected a defence of total denial. The accused did not adduce any oral evidence in defence, but Ext. D1 was marked on his side. On an appreciation of the evidence, the trial court found the accused guilty under Section 22(C) of the NDPS Act. On conviction, he was sentenced to undergo rigorous imprisonment for 10 years, and to pay a fine of Rs. 1,00,000/-. Aggrieved by the judgment of conviction dated 24.6.2016, the accused has come up in appeal.

(3.) When this appeal came up for hearing, the learned counsel for the appellant submitted that there was gross violation of the provisions of Sections 50 and 57 of the NDPS Act in this case, and that the statements allegedly given by the accused under Section 67 of the NDPS Act, on which, the prosecution would rely, stands not properly proved. The learned counsel also submitted in view of the decision of the Hon'ble Supreme Court in Mohan Lal v. State of Punjab AIR 2018 SC 3853 : 2018 ICO 1451 that the whole prosecution is vitiated by the investigation conducted by the detecting officer himself. On this particular aspect, the learned Public Prosecutor brought to my notice an unreported decision of the Hon'ble Supreme Court in Crl.A. Nos. 2450 and 2451 of 2010 between Varinder Kumar v. State of Himachal Pradesh, wherein the Hon'ble Supreme Court has explained that the dictum laid down in Mohan Lal's case will not apply to pending prosecutions, and appeals.