IMPORTANT POINTS
(1) Presence of accused or his Pleader is required at the time of recording examination in chief of a material prosecution witness.
(2) Seizure of narcotic drugs – Scheme of NDPS Act do not brook any delay in the matter of making of application or drawing of samples and certification.

JUDGMENT

The appellant is the accused in S.C. No. 89 of 2012 on the file of the Special Judge (NDPS Act Cases), Vatakara and he is challenging the conviction and sentence imposed on him for the offences under Sections 22(b) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’ for short).

2. The prosecution case is that the accused was found in conscious possession of 250 ampoules of Buprenorphone injection Lupigesic, 165 injection ampoules of Diazepam starlium and 60 injection ampoules of Diazep on 05.07.2011 at 16.40 hours at a place near MSMI Cristh Jyothi Convent building at Sulthan Bathery.

3. Before the trial court, when the accused pleaded not guilty to the charge, PWs 1 to 8 were examined and Exhibits P1 to P13 and MOs 1 to 12 were marked from the side of the prosecution. From the side of the defence, Exhibit D1 marked.

4. After considering the oral and documentary evidence on record, the learned Special Judge found the accused guilty and convicted him for the offences as aforesaid. When there was no representation for the appellant for several postings, this Court appointed Adv.Anand Mahadevan as State Brief to represent the appellant.

5. Heard Sri. Anand Mahadevan, the learned counsel representing the appellant as State Brief and Sri. Alex M. Thombra, the learned Public Prosecutor for the State and perused the records.

6. The learned State Brief, Adv.Anand Mahadevan, argued that the prosecution is vitiated as the sample was allegedly drawn by PW1 without taking recourse to sub-Section 2 of Section 52A of the NDPS Act and further, the trial court accepted the chief affidavit of PWs 1 and 4 as evidence against the accused in violation of Section 276 Cr.P.C.

7. But, the learned Public Prosecutor argued that the evidence of PWs 1 and 4 regarding the arrest and seizure of the contraband from the possession of the accused is reliable and there is no reason to interfere with the findings in the impugned judgment.

8. It is not in dispute that the trial court accepted the chief affidavit of PWs 1 and 4 as evidence against the accused in violation of Section 276 Cr.P.C., which reads thus:

“276. Record in trial before Court of Session.—

(1) In all trials before a Court of Session, the evidence of each witness shall, as his examination proceeds, be taken down in writing either by the presiding Judge himself or by his dictation in open Court, or under his direction and superintendence, by an officer of the Court appointed by him in this behalf.

[(2) Such evidence shall ordinarily be taken down in the form of a narrative, but the presiding Judge may, in his discretion, take down, or cause to be taken down, any part of such evidence in the form of question and answer.”

(3) The evidence so taken down shall be signed by the presiding Judge and shall form part of the record.”

9. Section 273 Cr.P.C provides that all evidence in a criminal trial is to be taken in the presence of the accused and Section 278 Cr.P.C shows that the evidence so recorded is required to be read over to the witness in the presence of the accused. Therefore, the presence of the accused or his Pleader is required at the time of recording the examination in chief of a material prosecution witness. The accused or his Pleader has a right to object to a leading or irrelevant question being asked to the witness during chief examination. Therefore, if the trial court permits the prosecution to file chief affidavit of a material witness as evidence in a criminal case against the accused, the same will cause serious prejudice to the accused, in as much as the entire contents of the chief affidavit can only be treated as an outcome of the leading questions put to the witness.

10. In Ekene Godwin and Another v. State of Tamil Nadu [2024 SCC OnLine 337], the Honourable Supreme Court held thus:—

“6. When the examination-in-chief of a material prosecution witness is being recorded, the presence of the Advocate for the accused is required.