Criminal Appeal No. 2269 of 2008 · Kerala High Court · 2009

Crl.A.No. 2269 & 1663 of 2008 :-3-:and Sections 28 and 29 against the second accused underN.D.P.S.Act were framed and the same were read over andexplained to them and they pleaded not guilty. Subsequently,charge against the first accused was amended as one comingunder 20(b)(ii)(C) of the N.D.P.S.Act as per the order of the trialcourt in Crl.M.P.No.532 of 2008 and again fresh charge was readover and explained to them and they pleaded not guilty.Therefore, the prosecution adduced evidence consisting of thetestimony of PWs.1 to 12 and the documentary evidence such asExts.P1 to P24,P2(a),P4(a),P5(a),P22(a) and also identified andmarked material objects such as MOs.1 to 6 and MOs.1(a) to 5(a). When the incriminating circumstances, which emergedduring the evidence of the prosecution, put to the accused, theydenied the same. The first accused took a defence by statingthat he has not committed any offence and he is innocent of thesame. The second accused stated that he had no acquaintancewith PW5 Jayakumari and according to him, he was seeing herfor the first time in the court and he had flatly denied theallegation that he had handed over hashish and mobile phone tothe said Jayakumari. No evidence either documentary or oralwas adduced from the side of the defence except marking Crl.A.No. 2269 & 1663 of 2008 :-4-:Exts.D1 to D3 contradictions in the evidence of PWs.5 and 11.On the basis of the materials and evidence on record and thecontentions and rival pleadings, the trial court formulated 5 pointsfor its consideration. After elaborate discussion and based uponthe evidence and materials on record, the trial court found thatthe accused are guilty and accordingly, the first accused wasconvicted under Section 20(b)(ii)(C) of the N.D.P.S.Act and hewas sentenced to undergo rigorous imprisonment for 10 yearsand also to pay a fine of Rs.1 lakh, in default to undergo rigorousimprisonment for a further period of one year. The secondaccused was convicted under Sections 28 and 29 of theN.D.P.S.Act and he was also sentenced to undergo rigorousimprisonment for a period of ten years each and also to pay a fineof Rs.1 lakh each, in default to undergo rigorous imprisonment forone year each under each section and the substantive sentencesimposed against the second accused were directed to be runconcurrently. The set off was allowed under Section 428 of theCr.P.C. It is the above finding, conviction and sentencechallenged by the accused by filing the above two separateappeals. Crl.A.No. 2269 & 1663 of 2008 :-5-:5.As the first accused is undergoing imprisonment inpursuance of the impugned judgment and he preferred theappeal from jail, Advocate Mr.M.R.Jayaprasad is appointed asState Brief to prosecute Crl.A.No.2269 of 2008 for and on behalfof the appellant and thus, I have heard AdvocateMr.M.R.Jayaprasad and Sri.V.Venugopalan Nair, learned counselappearing for the appellant/second accused in Crl.A.No.1663 of2008 and also Smt.K.L.Lakshmi Rani, the learned PublicProsecutor.6.The prosecution case mainly depends upon theevidence of PW11 and other witnesses namely, PWs.1,2 and 7 toestablish its case. PW11 was the Circle Inspector of ExciseDepartment working in Excise Enforcement and Anti NarcoticSpecial Squad, Thiruvananthapuram at the relevant time.According to him, when he was doing patrol duty on 20.10.2006along with PW1- the Excise Inspector, PW9- the Excise Guardand other Excise Officials and when they reached Sreekaryam atabout 5.55 p.m., he had got information that a boy, aged 20years, wearing jeens pant and shirt was standing near DesaseviniReading Room near Sreekaryam Junction with hashish, anarcotic substance. PW11 deposed that he had reduced the said Crl.A.No. 2269 & 1663 of 2008 :-6-:information into writing and the same was proved as Ext.P23.According to PW11, thereafter he proceeded to that place and hesaw the first accused holding a plastic bag in his hand and thesame is identified and marked as MO5. First accused was foundin the company of PW7. Since the appearance of the firstaccused was tallying with the description contained in theinformation received, he stopped the vehicle some distance awayfrom the bus station which is situated in front of the DesaseviniLibrary and Reading Room and proceeded towards the firstaccused. According to PW11, he had disclosed his identity to A1and also conveyed the information, which he got, and furtherdeclared his intention to search the body of A1. PW11 statedthat the accused was made aware of the right under Section 50of the N.D.P.S.Act, but the first accused and PW7 did not insistfor exercising their right under Section 50 and permitted PW11 toconduct the search. Thus, PW11 subjected himself to bodysearch and thereafter, took MO5 bag from the hands of the firstaccused and on examining MO5 bag, he found MO1 packetcontaining black sticky substance and when opened the packet,he felt the smell of hashish. It is the further case of PW11 thatthereafter, he tested the materials with the narcotic kit kept in the Crl.A.No. 2269 & 1663 of 2008 :-7-:vehicle and he was convinced that it was hashish. He convincedthe same to PW1 and other officials and also PW2 anindependent witness and another witness present at that time.He had conducted the search in the presence of PW2 andanother witness. PW11 deposed elaborately regarding thedrawing of samples and seizure of the materials and sealing ofthe same. It is proved and identified MO5 cover in which MO1packet was sealed and the sample packets, which were preparedand obtained after analysis, are identified as MOs.2 to 4 and thelabels on them are MO2(a), MO3(a) and MO4(a) and the label onMO1 is MO1(a) and label on MO5 is MO5(a). According toPW11, thereafter he had made body search of PW7 and foundMO6 series 40 rupees in his shirt pocket. Thus, by preparingExt.P1 seizure mahazar, he had seized MOs.1 to 5 and MO6series in the presence of PW2 and another. He had alsoprepared Ext.P12 search list of the articles seized. Thereafter,the first accused and PW7 were arrested and Ext.P10 arrestmemo with respect to the arrest of the first accused was preparedand PW11 came to their office and registered Ext.P11occurrence report as O.R.No.9 of 2006 against the first accusedshowing PW7 as the second accused for the offence punishable Crl.A.No. 2269 & 1663 of 2008 :-8-:under Section 20(b)(ii)(C) of the Act. According to PW11, sincePW7 was originally shown as second accused in the occurrencereport, being a juvenile, he was produced before the Juvenilecourt and the first accused was produced before the regularMagistrate Court along with Ext.P14 remand report. PW7 wassent to Juvenile home through PW8. The thondi article as perExt.P7 thondi list along with request was produced before thecourt on 21.10.2006 through PW8 and the same was returned toExcise Guard PW8 for producing the same before the court on23.10.2006. Finally on 25.10.2006, it was sent to court throughPW9 and the learned Magistrate has directed PW9 to producethe same before the Sessions Court and accordingly, PW9produced the same before the trial court and the same wasreceived by PW10. On the basis of Ext.P9 letter of the trial court,PW10 sent the samples for analysis of Forensic ScienceLaboratory, Thiruvananthapuram through PW9 and accordingly,PW9 produced the same before the said laboratory and obtainedExt.P8 acknowledgment. Ext.P15 is the report obtained from theForensic Science Laboratory, Thiruvananthapuram, by which, it iscertified that the samples contained hashish. 7. According to PW11, during the course of investigation, Crl.A.No. 2269 & 1663 of 2008 :-9-:it has come to his knowledge that the first accused had madetelephone call to a lady in a mobile phone and on the basis of themobile phone number, it was revealed that the mobile connectionwas from hutch connection and thus, PW11 conducted enquirywith the hutch company at Kochi and obtained Ext.P22(a) calldetails of the mobile phone with No.9846618209 along withExt.P22 letter from the hutch company. During his enquiry,PW11 was told that the details of the phone connection can beascertained from their franchise M/s.V.K.K.Trade Links,Thiruvananthapuram and on further enquiry, PW11 realised thatthe connection was issued from their sub dealer FaizianaCommunication, Kaniyapuram which was conducted by PW6.Thus, PW11 went to Faiziana Communication, Kaniyapuram andseized Ext.P4 application given in the name of Sarasamma, 784,Enjikkal Veedu, Chathannoor with Ext.P4(a) photo of Jayakumari,PW5 and Ext.P5 photo electoral identity card of Sarasamma withExt.P5(a) photograph of PW5 Jayakumari which was entrustedby the applicant for the purpose of getting mobile phoneconnection produced by PW6 along with Ext.P6 letter which heseized as per Ext.P16 seizure mahazar. On the basis of theabove documents, PW11 conducted further investigation and he Crl.A.No. 2269 & 1663 of 2008 :-10-:realised that the addressee shown in Exts.P4 and P5 died longago and the identity card was relating to the mother of the secondaccused Chandran and those particulars were revealed whenPW4 Radha, sister of the second accused was questioned. Oncontinued investigation, PW11 had got further information thatthe photograph in Exts.P5 and P4 namely, P5(a) and P4(a)pertain to PW5 Jayakumari and on her questioning, it was furtherrevealed that the photographs were given to the second accusedwho had assured to give employment and one day, he had giventhe mobile phone and told the said Jayakumari that two boyswould come and they would call and accordingly, she received acall stating that they were waiting for her at Vetturoad.Accordingly, PW5 Jayakumari went to Vetturoad and found thesecond accused Chandran waiting there and he had entrustedMO5 cover with MO1 packet inside and told that he was waitingfor the two boys and on seeing the two boys coming near tothem, he entrusted the bag to her to be handed over to the boysand thereafter he left the place after receiving the mobile phonegiven to her. Thus, PW5 received MO5 cover with the packetsinside as entrusted to her by the second accused and thereafter,she entrusted it to the first accused and thereafter she left the Crl.A.No. 2269 & 1663 of 2008 :-11-:place. According to her, she came to know about the contents ofthe packets and MO5 cover as hashish only from the next daynewspaper. Thus, according to the PW11, the investigationdisclosed that the second accused has also involved in the crimeand accordingly, the second accused was arrested on 10.5.2007at 10 a.m. from a toddy shop bearing No.6/2007-08,Kadambattukonam and PW11 prepared Ext.P18 arrest memo.PW11 further deposed that on the arrest of the second accusedand on his questioning, he gave Ext.P20 confession statementwhich was recorded under Section 67 of the N.D.P.S.Act. Thus,thereafter, he filed Ext.P17 report to add the second accused asthe third accused in the occurrence report. Thereafter, PW11secured the custody of the original second accused (PW7) andwhen he questioned, it was revealed that he had not reallyinvolved in the transaction and he had simply accompanied thefirst accused as requested by him. Thus, according to PW11, onrealising the above fact, he filed Ext.P21 report before theJuvenile Court to drop the proceedings against PW7, the originalsecond accused. Thereafter, PW11 produced the secondaccused along with Ext.P19 remand report. Ext.P24 is theintimation given to the immediate superior officer regarding the Crl.A.No. 2269 & 1663 of 2008 :-12-:detection and arrest of original first and second accused in theOccurrence Report as required under Section 57 of theN.D.P.S.Act. The further investigation in this case wasconducted by PW12. He verified the investigation conducted byPW11. PW12 conducted the enquiry about Ext.P3 photo identitycard with PW3 Tahsildar, Kollam and obtained Ext.P2 attestedcopy of the register of photo identity card and Ext.P2(a) relates toSarasamma, who is the mother of the second accused. PW12conducted investigation and laid the charge against accused Nos.1 and 2. 8.When PWs.1 and 2 were examined, they deposed interms of the deposition of PW11. PW7 also supported theprosecution case as such. Going by the evidence of PWs.1,2,7and 11 and prosecution exhibits such as Exts.P7 thondy list,P12search list, P10 arrest memo, the trial court found that theprosecution had succeeded in establishing the seizure of thecontraband article from the first accused and on the basis ofevidence of PW5 and PW11 and as per the documentaryevidence such as Exts.P2,P2(a),P3,P4,P4(a),P5,P5(a) andExt.P20 confession statement of the second accused, the trialcourt was of the opinion that the prosecution had succeeded in Crl.A.No. 2269 & 1663 of 2008 :-13-:proving the involvement of the second accused in thecommission of the crime and further proved the abetment andpreparation of commission of the offence. Thus the trial courtcame into a specific finding that the prosecution has provedbeyond reasonable doubt that the first accused was found to bein possession of 2.5 Kgs. of hashish which is a commercialquantity in violation of the provisions of N.D.P.S.Act and it hascome into possession of the first accused as entrusted by thesecond accused as abetted and on preparation at his instance byhim and thereby, the first accused had committed the offencepunishable under Section 20(b)(ii)(C) of the N.D.P.S.Act and thesecond accused had committed the offence punishable underSections 28 and 29 of the N.D.P.S.Act.9.Mr..M.R.Jayaprasad, learned counsel appearing asState Brief for the first accused submitted that the prosecutionhas miserably failed to prove that the alleged seizure of thecontraband article was strictly from the possession of theappellant/first accused and in accordance with the legalrequirement. According to the learned counsel, since both thealleged seizure and the investigation were done by the sameofficer, great prejudice is caused to the accused and therefore, Crl.A.No. 2269 & 1663 of 2008 :-14-:the investigation and the consequent trial are vitiated. Learnedcounsel further submits that the very genuineness of theprosecution case itself is under shadow of doubt and theprosecution has created false documents for the purpose ofcanvassing the conviction against the first accused. According tothe learned counsel, though PW11 has stated that he went to thespot, in pursuance of the information which he received, alongwith other Excise Officers who were on patrol duty, the aboveclaim of PW11 is not supported by PW1 another loyal witness tothe prosecution. According to PW1, he was with the company ofPW11 from the very starting of the patrol duty and till reaching atthe spot from where the alleged contraband articles were seizedand he had not noticed any receipt of information by PW11 duringthe journey and he had no occasion to notice the recording of anyinformation by PW11 during their patrol duty. On the basis of thisdiscrepancy, learned counsel submits that the very basis of theprosecution case itself is doubtful. Against the seizure, learnedcounsel further submits that though two independent witnesseswere shown in Ext.P1 seizure mahazar, only one witness wasselected to be examined in the court and the other witness wasgiven up. According to the learned counsel, PW2, who was Crl.A.No. 2269 & 1663 of 2008 :-15-:examined to prove the seizure and arrest of the accused, is ahighly interested witness procured for the above purpose. PW2is a bar employee and he is very loyal and submissive to theprosecution. On the other hand, according to the learnedcounsel, there is no explanation from the prosecution in notexamining the other witnesses. Therefore, learned counselsubmits that regarding the seizure of the contraband article fromthe possession of the first accused, there is no independentevidence so as to corroborate the evidence of PW11. Anotherpoint raised by the learned counsel for the first accused is thatthe alleged seizure was conducted in violation of the statutorymandate contained in Section 50 of the N.D.P.S.Act. Accordingto the learned counsel, apart from the very claim of PW11 thatthe first accused was apprised of his right under Section 50, thereis no evidence to show that the alleged seizure was effected inaccordance with the statutory mandate and procedurecontemplated by Section 50. Hence, the seizure itself is vitiatedand consequently, the accused are entitled to get acquittal. Inthe alternative, learned counsel further submits that even if it isadmitted; not conceded that MO5 bag and the contents thereonwere seized from the possession of the first accused, absolutely Crl.A.No. 2269 & 1663 of 2008 :-16-:there is no evidence to show that the first accused hadpossessed the bag with the knowledge that it contains thecontraband article namely, hashish. The first accused/appellantin Crl.A.No.2269 of 2008 in his appeal memorandum which wasprepared from the jail at his instance in ground No.4, it is statedthat the appellant has no knowledge about the contents of thepacket which was entrusted to him. It is also submitted that “thesecond accused has very cunningly enacted the entire drama inwhich the appellant was made a scape goat.” According to thelearned counsel, the prosecution has miserably failed to establishthat the first accused was in conscious possession of thecontraband article. In support of the argument advanced on thebasis of Section 50 of the N.D.P.S.Act., the learned counselplaced reliance upon the decision reported in Ravindran @ Johnv. Superintendent of Customs [AIR 2007 SC 2040; 2007(3)KLT SN 11 (Case No.13) SC]. Thus, according to the learnedcounsel, the prosecution has miserably failed to prove that thecontraband article was seized from the possession of the firstaccused and therefore, the finding of the court below that the firstaccused has committed the offence punishable under Section 20(b)(ii)(C) of the N.D.P.S.Act is liable to be set aside and he is Crl.A.No. 2269 & 1663 of 2008 :-17-:entitled to an acquittal. 10. Mr.V.Venugopalan Nair, learned counsel appearingfor the second accused in Crl.A.No.1663 of 2008 vehementlyargued that the conviction and sentence imposed by the courtbelow against the second accused is diametrically opposed to thelaw, facts, evidence and circumstances involved in the case.According to the learned counsel, the court below has notappreciated the evidence properly and the same resulted in grossmis-carriage of justice. According to the learned counsel, theapproach of the trial court and its finding, that evidence of PW5coupled with EXts.P4,P4(a),P5,P5(a),P3,P2,P2(a) and P20confession statement of second accused that he had madearrangements to entrust the contraband article to the firstaccused through PW5 and thereby, he abetted the commission ofoffence and made preparations for the commission of offence,are proved beyond reasonable doubt, are baseless and contraryto the real fact and the evidence on record. Learned counselvery much argued that absolutely, there is no allegation or anystatement and evidence to prove any connection betweenAccused Nos.1 and 2. Therefore, according to the learnedcounsel, even if the contraband article is claimed to have seized Crl.A.No. 2269 & 1663 of 2008 :-18-:from the possession of first accused, absolutely there is noevidence to come to a conclusion that it was the second accusedwho abetted A1 for committing the offence. Learned counselfurther submitted that the allegation of the prosecution that A2obtained telephone connection from PW6 cannot be believed fora moment. Learned counsel submits that the persons like PW6are not expected to issue mobile phone connection withoutverifying the records and also the identity of the person. Insupport of the above contention, learned counsel invited theattention of this Court to the deposition of PW6 which says that“.........അപ(cid:4)ക ക(cid:8)(cid:9)ട(cid:11)ത ആള വന(cid:9)ല മ(cid:9)ത(cid:20)പമ കമ(cid:9)ബ(cid:22)ല(cid:8)ണകന ക(cid:8)(cid:9)ട(cid:11)ക(cid:11)(cid:8)യ(cid:11)ള(cid:28). ....... '' Learned counsel furtherargued that the person namely Hasim was not questioned by theprosecution and as such, there is no evidence as to whosubmitted the application form for obtaining the mobileconnection. Learned counsel pointed out that though PW11 hasstated about the calls made through the mobile phone, he did notconduct any investigation to trace out the person to whom the callwas made before and after the seizure. According to thelearned counsel, that is a serious lapse on the part of the Crl.A.No. 2269 & 1663 of 2008 :-19-:investigating officer and if a proper investigation was conducted,the real culprits would have been identified. Learned counselpointed out that PW5 in her 161 statement did not state about thehanding over of the mobile phone, travel to Vetturoad, seeing thesecond accused and the entrustment of MO1 packet with MO5cover to PW5 by the second accused etc. So according to thelearned counsel, the evidence of PW5 cannot be accepted.Learned counsel further submits that after the arrest of thesecond accused, he was under the custody of PW11 and afterrecording Ext.P20 statement, he did not get any opportunity toretract the same till he filed a complaint before the DistrictCollector. So, according to the learned counsel, the complaintfiled before the District Collector can be treated as his retractedstatement against Ext.P20. According to the learned counsel, inthe evidence of PW4, there is no deposition to the effect that thesecond accused has taken the photo identity card of their mother.Learned counsel submits that the trial court failed to find that theaccusation against the second accused is a foisted one at theinstance of PW5 so as to save herself from the penal liability.According to the learned counsel, many of the findings of the trialcourt are merely based upon surmises and conjectures. Thus, Crl.A.No. 2269 & 1663 of 2008 :-20-:according to the learned counsel, the prosecution has miserablyfailed to prove beyond reasonable doubt that it was the secondaccused who entrusted MO1 packet in MO5 cover to PW5 to behanded over to the first accused and the appellant/secondaccused has abetted and made preparation for commission of thecrime. Therefore, according to the counsel, the finding of thecourt below that the appellant/second accused has committed theoffence punishable under Sections 28 and 29 of the N.D.P.S.Actis absolutely illegal and incorrect and such findings areunsupported by any evidence or materials. 11. Stoutly opposing the arguments advanced by boththe counsel for first and second accused, Smt.K.L.Lakshmi Rani,learned Public Prosecutor submits that the finding of the courtbelow is absolutely correct, legal and supported by th evidenceand materials on record. Learned Public Prosecutor submits thatthe seizure of a substantially huge quantity, namely 2.5 Kgs. ofhashish, a narcotic drug was in pursuance of the informationreceived by PW11. EXt.P23 information is a contemporaneousdocument prepared by PW11 who ensured the correctness andlegality of the very basis of the prosecution case. Learned PublicProsecutor submits that first accused was identified on the basis Crl.A.No. 2269 & 1663 of 2008 :-21-:of the description given in Ext.P23 information with respect to hisdress. The seizure of the contraband article and arrest of the firstaccused was specifically proved through the deposition of PW11,another official witness PW1 and the evidence of independentwitness namely PW2 and also through the evidence of PW7, whowas originally the second accused in the Occurrence Report,found in the company of the first accused. Thus, the substantialevidence of PW11 and PW1 are corroborated by the independentevidence, namely, the deposition of PW2 and also the evidenceof PW7. These evidences are further corroborated by thecontemporaneous documents like Ext.P23 information, EXt.P1seizure mahazar and also the arrest memo of the first accused.Thus, according to the learned Public Prosecutor, the prosecutionhas succeeded in proving its case against the first accusedwithout any doubt. Learned Public Prosecutor submits that PW1during his chief examination mentioned about the informationwhich was received by PW11. So the contention of counsel forthe first accused that PW1 did not note the recording ofinformation is not correct. According to the learned PublicProsecutor, the evidence of PW1 and PW11 are sufficient toprove the seizure and their evidence is further corroborated by Crl.A.No. 2269 & 1663 of 2008 :-22-:the independent evidence namely, PW2 and simply becausePW2 being a bar employee, his evidence cannot be treated asinterested one and though PW2 was subjected to extensivecross-examination, nothing was brought to discredit his version.It is also the case of learned Public Prosecutor that Section 50 ofthe N.D.P.S.Act has no application in the present case as therewas no seizure pursuant to the search of the person of accusedNo.1. It is also the case of the learned Public Prosecutor that theprosecution has established and proved the seizure of thecontraband article from the possession of the first accused andtherefore, the prosecution is not bound to prove that he was inconscious possession of the same. According to the learnedPublic Prosecutor, in view of Section 54 of the N.D.P.S.Act, it isfor the first accused to give a correct account to the satisfaction ofthe court as regarding his possession. Therefore, according tothe learned Public Prosecutor, none of the arguments raised forand on behalf of the first accused are sustainable and the sameare liable to be rejected. 12. In reply to the arguments of the learned counselfor the appellant/the second accused, the learned PublicProsecutor submits that second accused is the master brain Crl.A.No. 2269 & 1663 of 2008 :-23-:behind this trafficking of hashish involved in this case. LearnedPublic Prosecutor, on the basis of the evidence and materials onrecord, explained as to how the prosecution has succeeded intracing out the role of second accused in this case. According toPW11, during his investigation, he got some lead regarding thephone call made by the first accused to a mobile phone withNo.9846618209. The investigation conducted, based upon suchlead, helped PW11 to trace out the connection of secondaccused with the alleged offence. Thus, according to theprosecution, it was the second accused who made Ext.P4application for mobile connection in the address of his expiredmother, but clandestinely shows the photo of PW5 in the place ofthe addressee and thus, he obtained mobile connection fromPW6. Thus, on the basis of the evidence of PWs.4,5 and 6 andalso on the basis of the documentary evidence namely, Ext.P22(a) call details, Ext.P22 letter from the Hutch company, Ext.P4application given in the name of Sarasamma, the mother ofsecond accused and PW4 and Ext.P4(a) photo ofPW5/Jayakumari, Ext.P5 photo electoral identity card ofSarasamma with Ext.P5(a) photograph of PW5, Ext.P6 letter andExt.P16 seizure mahazar, the prosecution has succeeded in Crl.A.No. 2269 & 1663 of 2008 :-24-:establishing the prominent role of A2 in the commission of theoffence. Besides the above documents, in Ext.P20 voluntarystatement of second accused recorded under Section 67 of theN.D.P.S.Act, A2 has confessed his role of entrusting thecontraband article with PW5 to be handed over to A1. Soaccording to the learned Public Prosecutor, by the aboveevidence, the oral as well as the documentary which arecontemporaneous, the prosecution has proved the offence underSections 28 and 29 of the N.D.P.S.Act. against the secondaccused. Therefore, according to the learned Public Prosecutor,the trial court, after elaborate consideration of evidence andmaterials on record and on appreciation of the same, came to aconclusion that A2 has committed the offences which arecharged against him and therefore, no interference of this Courtis warranted. 13. I have carefully considered the argumentsadvanced by both the counsel for the appellants and also thelearned Public Prosecutor. I have perused the evidence andmaterials on record.14. It is to be noted that on the basis of the materialsproduced by the investigating agency before the court below, the Crl.A.No. 2269 & 1663 of 2008 :-25-:court below framed charges against the first accused underSection 20(b)(ii)(C) of the N.D.P.S.Act and also under Sections28 and 29 of the N.D.P.S.Act against the second accused. Theallegation raised by the prosecution is that on 20.10.2006 atabout 6 p.m., the first accused was found in possession of 2.5Kgs. of hashish, a narcotic substance as entrusted with him bythe second accused for the purpose of trafficking and thus, hewas found with the contraband article near Desasevini ReadingRoom and Library situated 100 metres east of SreekariyamJunction on the side of the Sreekariyam-Ulloor road and thesecond accused has caused such offence to be committed and insuch attempt, he had done many acts for the commission ofoffence and thereby, the second accused committed the offencespunishable Under Sections 28 and 29 of the N.D.P.S.Act. Asstated earlier, the prosecution mainly relied upon the evidence ofPWs.1,2,7 and 11 and also the documentary evidences such asExts.P23,P1,P12 search list, Ext.P10 arrest memo and Ext.P11occurrence report to prove the seizure and arrest of the firstaccused. Before going into the details and examining the meritsof the case, it is just and proper to peruse the charge framed bythe trial court which reads as follows:- Crl.A.No. 2269 & 1663 of 2008 :-26-: “That on 20-10-2006 at about 6 p.m. 100 metreseast from Sreekariyam junction along Sreekariyam-Ulloorroad in Ulloor Village, Thiruvananthapuram Taluk No.1 of youalong with one Prathap were found to be in possession of2.500 Kgs. of hashish for the purpose of sale as entrustedby No.2 of you and thereby both of you have committed theoffence punishable u/S.20(b)(ii)(C) of Narcotic Drugs andPsychotropic Substances Act 1985 and within mycognizance.Secondly that on the same date and time No.2 ofyour had conspired with No.1 and Prathap and entrusted thehashish for the purpose of sale to them in violation of theprovisions of the Narcotic Drugs and PsychotropicSubstances Act and thereby both of you have committedthe offence punishable u/S.28 and 29 of the NarcoticDrugs and Psychotropic Substances Act and within mycognizance.” (emphasis supplied)15. From the above, it is crystal clear that evenaccording to the prosecution, the contraband article wasentrusted with A1 by A2 in pursuance of a conspiracy betweenthe second accused and accused No.1 and the said Prathap.Now, let us examine the finding of the court below which can beseen from para 23 of the judgment particularly in page No.23which runs, “In view of the discussions made above, it can be safelyconcluded that the prosecution has proved beyond reasonable doubtthat the first accused was found to be in possession of 2.5 Kgs. ofhashish which is a commercial quantity in violation of the provisions of Crl.A.No. 2269 & 1663 of 2008 :-27-:the Narcotic Drugs and Psychotropic Substances Act and it has comeinto possession of the first accused as entrusted by the second accusedas abetted and prepared by him and thereby first accused hadcommitted the offence punishable under Section 20(b)(ii)(C) of the Actand the second accused had committed the offence punishable underSections 28 and 29 of the Act.” (emphasis supplied) Thus, the findingitself of the court below would show that there is no finding to theeffect that the entrustment was made based upon conspiracyhatched among the accused. Of course, there is no legal bar forthe trial court in coming to a finding deviating from the chargesframed provided there is ample, convincing and sufficientevidence. Thus, in these appeals, the above finding of the courtbelow has to be examined on the basis of the above allegationsand the materials on record.16. Going by the allegations of the prosecution and thecharge framed against the accused, it can be seen that the mainrole in the commission of offence is attributed against secondaccused since according to the prosecution, there was aconspiracy hatched among the accused and in pursuance to suchconspiracy, second accused entrusted the contraband article with Crl.A.No. 2269 & 1663 of 2008 :-28-:first accused and the said Prathap and thus it was seized fromthe possession of the first accused. At the outset, it is to benoted that there is no finding of the court below regarding theconspiracy and according to the court below, the first accusedwas found in possession of the contraband article as entrustedand abetted and prepared by second accused. So, let usexamine firstly how far the prosecution has succeeded in provingthe allegation against second accused. Admittedly, secondaccused was not arrested from the spot or no seizure waseffected from his possession. According to PW11, onquestioning PW7, the original second accused, he had statedthat the first accused was unable to read and write and for thepurpose of making a telephone call, the first accused took himand according to Rajesh/the first accused, the telephone numberwas “9846618209”. On calling in this telephone number, a ladycame and handed over a plastic cover to first accused. Thus,PW11 conducted an enquiry and found that the said mobileconnection was from Hutch company and he conducted furtherenquiry and found that Ext.P4 application for mobile connectionwas given in the name of one Sarasamma with Ext.P4(a) photo ofJayakumari/PW5 and PW11 further deposed that Ext.P5 photo Crl.A.No. 2269 & 1663 of 2008 :-29-:Electoral Identity Card of Sarasamma with Ext.P5(a) photographof PW5 Jayakumari, which was entrusted by the applicant for thepurpose of getting the mobile phone connection, produced byPW6 along with Ext.P6 letter which he seized as per Ext.P16seizure mahazar. According to PW11, the addressee shown inExts.P4 and P5 died long ago and the identity card was related tothe mother of the second accused. Thus, according PW11, hehad questioned the person shown in photograph Exts.P5 and P4namely, Exts.P5(a) and P4(a) who is PW5 Jayakumari and onher questioning, she had stated that the second accused assuredemployment to her and one day, he had given the mobile phoneand told the said Jayakumari that two boys would come and theywould call her and accordingly, she received the call stating thatthey were waiting for her at Vetturoad. PW11 says that PW5further told him that she went to Vetturoad and saw the secondaccused waiting there and thus he entrusted MO5 cover withMO1 packet inside with Jayakumari and asked her to hand overthe same to the boys and he left the place. Besides the above,the prosecution also pressed into service Section 67 statement ofsecond accused, namely, Ext.P20 confession statement of theaccused to prove the case against him. Besides the above, there Crl.A.No. 2269 & 1663 of 2008 :-30-:is no other evidence to connect the second accused with thealleged transaction. Even the said evidence does not discloseanything to the effect that second accused met first accused andabetted him in any manner to commit the offence.17. Learned counsel for the second accused pointedout that those versions of PW5 cannot be believed even for amoment because she had made substantial improvements fromher original statement. During the cross examination for and onbehalf of first accused, PW5 has stated that she was questionedafter the incident and her statement was recorded and the samewas read over to her. She has further stated that“............ചത(cid:30)ന എന!ക" Phone (cid:20)ന!ര(cid:11)കനന(cid:11)$ആ Phone-ല (cid:4)യന(cid:9)ര വ!ള!ക(cid:11)കമന(cid:11)$ അങകന (cid:4)യന(cid:9)രPhone -ല എകന വ!ള!ച!ര(cid:11)ന(cid:11) എന(cid:11)$ അ(cid:20)(cid:11)സ$(cid:22)ന!ച(cid:9)ണ" കവട(cid:11) പ/(cid:9)ഡ!പ1ക" ഞ(cid:9)ന പ(cid:4)(cid:9)യക(cid:20)ന(cid:11)$അവ!കട ചത(cid:30)കന (cid:8)ണ(cid:11)കവന(cid:11)$ ചത(cid:30)പന(cid:9)ട" സ$സ(cid:9)ര!ച"ക(cid:8)(cid:9)ണ!ര!ക(cid:11)പ4(cid:9)ള 2 (cid:4)യന(cid:9)ര അവ!കട വന(cid:11)കവന(cid:11)$ചത(cid:30)ന ഒര(cid:11) ക(cid:4)(cid:9)(cid:20)! എക6 (cid:8)യ!ല (cid:20)ന" (cid:4)യന(cid:9)കരഏ1"(cid:4)!കണകമന(cid:11)$ (cid:4)/ഞ (cid:8)(cid:9)ര9ങള Excise Officerഎകന പച(cid:9)ദ9$ കചയ"(cid:20)പ;(cid:9)ള (cid:4)/ഞ(cid:11) ക(cid:8)(cid:9)ട(cid:11)ത!ര(cid:11)ന(cid:11).അങകന ന!ങള (cid:4)/ഞ(cid:20)(cid:9)യ! ന!ങള(cid:11)കട കമ(cid:9)ഴ!യ!ല(cid:8)(cid:9)ണ(cid:11)ന!ക=ങ!ല എക?ങ!1(cid:11)$ (cid:4)/യ(cid:9)ന(cid:11)പണ(cid:9) ()Qഞ(cid:9)ന (cid:4)/ഞ(cid:11) ക(cid:8)(cid:9)ട(cid:11)ത!ര(cid:11)ന(cid:11). ()A ......She further added ,“............. എകന ക(cid:4)(cid:9)(cid:20)! ഏല(cid:4)!ച" ക(cid:8)(cid:9)ട(cid:11)പകണ ആള!ക6പ(cid:4)ര(cid:11) (cid:4)/ഞ(cid:11) (cid:20)ന!ര(cid:11)ന!=. ആ (cid:4)യന(cid:9)രട(cid:11)ത"ഏല(cid:4)!കണകമന(cid:11) മ(cid:9)ത(cid:20)പമ (cid:4)/ഞ(cid:11)ളള(cid:28). ത(cid:4)(cid:20)! ചത(cid:30)ന Crl.A.No. 2269 & 1663 of 2008 :-31-:ര(cid:9)പBഷ!കന ഏല(cid:4)!കണകമന(cid:11) (cid:4)/ഞ" ഒര(cid:11) ക(cid:4)(cid:9)(cid:20)!യ(cid:11)$എക6 (cid:8)യ!ല (cid:20)ന!=. Excise ഉപദE(cid:9)ഗസന(cid:9)ര എകനപച(cid:9)ദ9$ കചയ"(cid:20)പ;(cid:9)ള സ$ഭവദ!വസ$ ചത(cid:30)ന എക6 (cid:8)യ!ലPlastic (cid:8)വര (cid:20)ന!ട" ര(cid:9)പBഷ!ക6 (cid:8)യ!ല ഏല(cid:4)!ക(cid:9)ന(cid:4)/ഞ(cid:11) എന(cid:11) ന!ങള (cid:4)/ഞ(cid:11) ക(cid:8)(cid:9)ട(cid:11)ത!ട(cid:11)പണ(cid:9) )Qഅങകന ഞ(cid:9)ന (cid:4)/ഞ(cid:11) ക(cid:8)(cid:9)ട(cid:11)ത!ട!=. ര(cid:9)പBഷ!ക6പ(cid:4)കര(cid:9)ഴ!ക(cid:8) (cid:22)(cid:9)ക! (cid:8)(cid:9)ര9$ ഞ(cid:9)ന (cid:4)/ഞ(cid:11)ക(cid:8)(cid:9)ട(cid:11)ത!ര(cid:11)ന(cid:11). ര(cid:9)പBഷ!ക6 പ(cid:4)ര" അന(cid:11) വനസ(cid:9)/(cid:9)ണ" (cid:4)/ഞ(cid:11) (cid:20)ന(cid:20)".()A..........”During the cross examination of PW5 on behalf of secondaccused, it is brought on record that many of the statementbefore the court was not seen in the statement given to theexcise personnel. She had also stated that “........ Excise ഉപദE(cid:9)ഗസന(cid:9)ര എകന പച(cid:9)ദ9$കചയ"(cid:20)പ;(cid:9)ള ത(cid:4)(cid:20)!ഫ1മ(cid:9)യ! 1000/- ര(cid:28)(cid:4)(cid:20)ര(cid:9)കമന" (cid:4)/ഞ!ട(cid:11)ണ". 100/- ര(cid:28)(cid:4) മ(cid:9)ത(cid:20)പമ(cid:20)ന!ട(cid:11)ളള(cid:28) എന(cid:11) ഞ(cid:9)ന (cid:4)/ഞ(cid:11)ക(cid:8)(cid:9)ട(cid:11)ത!ട!=. .............”She had also stated that “.......... ഈ (cid:8)(cid:9)1ഘടത!ല ഭരത(cid:9)വ" എക6 (cid:8)(cid:28)കടഉണ(cid:9)യ!ര(cid:11)ന!=(cid:4)!ണങ! പവക/, (cid:20)(cid:9)മസമ(cid:9)യ!ര(cid:11)ന(cid:11). ................”Thus, going by the evidence of PW5, it is crystal clear that shehad made substantial improvements, when she was examined inthe court, from her earlier statement before the InvestigatingOfficer. She had also admitted that she was offered Rs.1000/- forthe work assigned to him, but she was paid only Rs.100/-. If the Crl.A.No. 2269 & 1663 of 2008 :-32-:improved version of PW5 in her deposition is excluded,absolutely there is no evidence to connect the second accusedwith the transaction. On the other hand, based upon theadmission made by PW5, if the investigating officer has takenproper care, and an investigation was conducted in that direction,I firmly believe that her position would not have been as awitness. There is no explanation forthcoming from PW11 forsuch lapse. Going by the evidence of PW6 and the materials likeExt.P4 application, Ext.P6 letter and Ext.P16 seizure mahazar,there is nothing to show that it was the second accused who filedthe application for the mobile connection in the name of hismother Sarasamma and it was second accused who pasted thephotograph of Jayakumari PW5 in those records. So theevidence of PW5 and other materials indicated above are notsufficient to connect second accused with the alleged transaction.18. During the trial as well as in this court, the secondaccused has taken several contentions against the admissibilityof Ext.P20 confession statement of the second accused.According to him, he was constrained to give such statementbecause of the threat and pressure exerted upon him by theinvestigating agency. According to the learned counsel for Crl.A.No. 2269 & 1663 of 2008 :-33-:second accused, he had no occasion to retract from Ext.P20confession statement because from the date of arrest itself, hewas under custody and he had timely made representation beforeseveral authorities when he got such opportunity. During thependency of the hearing of this appeal, the secondaccused/appellant in Crl.A.No.1663 of 2008 filed a petition with aprayer to accept Annexures A1 and A2 as evidences and the saidpetition is supported by an affidavit. Annexure A2 is a copy of theconfession statement of A1 which is not produced by theprosecution during the trial. In Annexure A2, first accused hasstated that“......... .........ഈ (cid:8)ഞ(cid:9)വ" പ1ഹ9$ തQR(cid:8)(cid:9)ര9ത"ക(cid:8)(cid:9)ണ" ഏല(cid:4)!ച(cid:9)ല 1000 ര(cid:28)(cid:4) എന!ക"നല(cid:8)(cid:9)കമന" ആ സ"ത(cid:20)R (cid:4)/ഞ!ര(cid:11)ന(cid:11).പ(cid:4)(cid:9)1Rസ" (cid:4)!ട!ക(cid:11)(cid:8)യ(cid:9)കണങ!ല എകനB(cid:9)മ9ത!ല ഇ/ക(cid:9)കമന" ആ പചച!(cid:4)/ഞ!ര(cid:11)ന(cid:11). പചച!യ(cid:11)കട പ(cid:4)ര" (cid:8)9ഷ"ണമഎപന(cid:9) മപU(cid:9) ആണ". ..................”It is relevant to note that no way in Annexure A2, the name ofsecond accused is mentioned. Annexure A2 is not disputed bythe Prosecutor. But the same cannot be considered as anevidence, without putting the same to the Investigating Officer.On consideration of the admission made by PW5 and the above Crl.A.No. 2269 & 1663 of 2008 :-34-:portion of the confession statement of the first accused, this Courtis of opinion that the prosecution has suppressed the true affairsof the case and consequently, the prosecution case is not freefrom doubt. On a reading of Ext.P20, it can be seen that thesame cannot be treated as a voluntary confession statement.According to the above statement, he is not aware as to whoentrusted with him the hashish. It is also stated in the saidstatement that he had sold the mobile telephone to one man andhe is not aware of the further details of the said person. There isnothing discernible from the above statement regarding anymeeting of mind between himself and the first accused or anyother details to show that he had abetted A1 for the commissionof the said offence. So, the incriminating statement contained inExt.P20 regarding the entrustment of hashish with PW5Jayakumari and the affixing of photograph of Jayakumary in theidentity card of his mother etc. has to be treated as only creationof the investigating agency. There is nothing in Ext.P20 to theeffect that he had made an application for mobile connection. SoExt.P20 is no way helpful for the prosecution to connect thesecond accused with the alleged seizure, abetment andpreparation for the commission of the offence. Therefore, the Crl.A.No. 2269 & 1663 of 2008 :-35-:prosecution evidence is insufficient to connect the secondaccused with the offence alleged against him and availablematerials are not sufficient to prove his role in the commission ofoffence.19. The allegation against the first accused is that 2.5Kg. of hashish was seized from his possession by PW11 whichwas entrusted with him by second accused. I have already foundthat the prosecution has failed to prove the allegation thatsecond accused had hatched conspiracy with first accused orabetted him or prepared for the commission of offence alleged.The only evidence adduced by the prosecution to substantiatethe allegation against first accused is that of the evidence ofPW1,2 and 11 and also certain documents such as Ext.P1mahazar, Ext.P7 thondi list, Ext.P10 arrest memo, Ext.P12search list and Ext.P23 information. In this juncture, it is relevantto note that though the prosecution has recorded the confessionstatement of first accused which is referred above and notdisputed by the prosecution, it was not produced along with theprosecution evidence, documents for the scrutiny of the court. Ifthe seizure is excluded for the time being, absolutely there is noevidence as to how first accused and Prathap happened to be Crl.A.No. 2269 & 1663 of 2008 :-36-:reached in the place of occurrence. According to theprosecution, they came there in pursuance of the conspiracy thatwas hatched between A2 and A1 and the said Prathap. There isno evidence for such conspiracy. The evidence of PW5 is notfree from doubt and her evidence cannot be safely relied on insupport of the prosecution case, especially to find that sheentrusted the contraband drug with first accused. I have alreadyseen that she had made substantial improvement while makingdepositions before the court. In Ext.P20 confession statement ofA2, he had not even mentioned the name of the first accused andPW7. Therefore, the prosecution case regarding the presence offirst accused and PW7 at the place of occurrence is doubtful andthe same is not proved beyond the shadow of doubt. 20. According to PW11, while he was on patrol dutyon the alleged date along with PW1 and other Excise officials, hereceived information about the trafficking of hashish. Ext.P23 isthe information. As pointed out by the learned counsel for thefirst accused, PW1 was along with PW11 right from the startingfrom their office, but when PW1 was examined, he hadmentioned nothing about the receipt of information by PW11 andhe had also not seen PW1 reduced into writing such information. Crl.A.No. 2269 & 1663 of 2008 :-37-:So, the claim and evidence of PW11 that he had received priorinformation is not corroborated by the version of his owncompanion who is an official witness. Regarding the seizure, theonly independent evidence cited and examined by theprosecution is PW2. The alleged seizure was about 6 O' clock on20.10.2006. During the cross examination, he had stated that hecame to Trivandrum in connection with his work and he waswaiting in the bus stop as directed by one of his friends and hewas waiting for such friend. He had also stated that there was abar hotel in the name of Green Park Bar near the Sreekariyambus stop and he came at the spot connected with his employmentin that bar. He had also stated that he had worked in that barhotel. It is his deposition that he had joined for work in that barafter two weeks from the date of the seizure. On the basis of theabove evidence, the learned counsel submits that being a baremployee, the prosecution has hired PW2 who is at the disposalof Excise officials and the prosecution has chosen to cite andexamine him only to prove the seizure. It has also come out inevidence that besides PW2, another man was made as a witnessfor the seizure and the prosecution has not examined thatperson. Learned counsel submits that the prosecution has given Crl.A.No. 2269 & 1663 of 2008 :-38-:up the other witness as he is not willing to give false evidence asthe prosecution has done through PW2 and therefore, theprosecution has chosen to examine PW2. Going by the evidenceof PW2, who is a chance witness who failed to give properaccount for his presence at the relevant time, it is not safe to actupon such a witness when it was established that the Exciseofficials have access to such witnesses. Even if investigation wasconducted in the proper and effective manner and if first accusedis subjected to proper interrogation, the court would have gotbest evidence and materials regarding his involvement in thealleged offence. It is not a case where the first accused was notquestioned under Section 67 of the N.D.P.S.Act. But, he wasquestioned and his statement was recorded under Section 67.However, such statement was not produced before the court bythe prosecution. No explanation is forthcoming in not marking thesaid statement. On behalf of the second accused, the statementof first accused was produced before this Court which I havealready indicated above. But, in that statement, there is nothingincriminatory in nature against the first accused. But thestatement contained therein implicated a lady who is alleged tohave entrusted with him the contraband article. The investigating Crl.A.No. 2269 & 1663 of 2008 :-39-:officer has not conducted any investigation in that direction.Thus, on an overall assessment of the entire prosecution casebased upon the available materials, it can be seen that theprosecution has miserably failed to find out the source of hashish,a contraband article and as to how it was resulted in the seizure.The prosecution case, because of the defects noted earlier, is notfree of doubt and hence the first accused is entitled to the benefitof doubt.21. In this juncture, it is apposite to recollect thecharge framed by the court below against the accused which Ihave already referred. As per the charge, the first accused wasfound in the alleged possession of the contraband article asentrusted by second accused in pursuance of a conspiracyamong them. But there is no such finding of conspiracy by thecourt below as the prosecution failed to substantiate suchallegation. If that be so, it is crystal clear that the main plank ofthe prosecution has broken and therefore, the trial court cannotreconstruct the case in favour of the prosecution so as to convictthe first accused with the aid of Sections 28 and 29, on theallegation of abetment, at the instance of second accused. It isalso seen that there is no evidence or material to show that the Crl.A.No. 2269 & 1663 of 2008 :-40-:second accused had abetted the first accused. Therefore, thisCourt cannot approve the finding of the guilt arrived at by thecourt below against first and second accused with the aid ofSection 29 abetment.22. Under the circumstances mentioned above and inview of the materials and evidence discussed and referred above,I am of the view that the prosecution has miserably failed toestablish the allegation against the accused and to prove theoffences charged against them beyond reasonable doubt andconsequently, the appellants/accused are entitled to get benefit ofdoubt and therefore, the finding arrived on by the court belowregarding the guilty of the accused is not sustainable.Accordingly, the order of conviction passed by the court below isset aside.23. In the result, these appeals are allowed. Thejudgment dated 3.7.2008 in S.C.No.1147 of 2007 on the court ofSpecial Judge for trial of cases under N.D.P.S.Act,Thiruvananthapuram is set aside and the appellants/accused areacquitted from all the charges levelled against them. As theconviction and sentence passed by the court below against thefirst accused is set aside, he is entitled to get release from the Crl.A.No. 2269 & 1663 of 2008 :-41-:jail. Therefore, there will be a direction to release the appellant inCrl.A.No.2269 of 2008/the first accused forthwith if he is notrequired in any other case. As the second accused is alsoacquitted, the bail bond, if any, executed by him will standcancelled and he is set at liberty.2nd April, 2009. V.K.Mohanan, JudgeMBS/ Crl.A.No. 2269 & 1663 of 2008 :-42-: V.K.MOHANAN, JJ.-------------------------------------------- Crl.A.Nos.2269 & 1663 OF 2008 --------------------------------------------------- J U D G M E N T Crl.A.No. 2269 & 1663 of 2008 :-43-:DATED: 2-4-200920. In this juncture, it is apposite to recollect thecharge framed by the court below against the accused which Ihave already referred. As per the charge, the first accused camein the alleged possession of the contraband articles asunderstood by second accused in pursuance of a conspiracy.But the court itself came to a conclusion that there is no suchconspiracy as the prosecution failed to establish the same. If thatbe so, it is crystal clear that the main plank of the prosecution hasbeen broken and therefore, the trial court cannot reconstruct thecase in favour of the prosecution so as to convict the firstaccused with the aid of Sections 28 and 29 generally means, theabetment. at the instance of second accused. It is also seen thatthere is no evidence or material to show that the second accusedhad abetted the first accused. Therefore, I cannot approve thefinding of the guilt arrived at by the court below against first andsecond accused with the aid of Section 29 abetment. Crl.A.No. 2269 & 1663 of 2008 :-44-: V.K.MOHANAN, J.---------------------------------------------Crl.A.No. of 200--------------------------------------------- Dated this the day of February, 2009J U D G M E N T V.K.Mohanan, JudgeMBS/ Crl.A.No. 2269 & 1663 of 2008 :-46-: V.K.MOHANAN, JJ.-------------------------------------------- Crl.A.NO. OF 200 -------------------------------------------- J U D G M E N TDATED: -1-2009 Crl.A.No. 2269 & 1663 of 2008 :-47-: