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2004 Supreme(Mad) 209
High Court of Judicature at Madras
THE HONOURABLE MRS. JUSTICE R.BANUMATHI
Suresh - Appellant
Versus
State - Respondents
Criminal Appeal No. 226 of 1997
Decided On : 17 February 2004
Substantial compliance with mandatory requirements of the N.D.P.S.Act, reasonable non-examination of independent witnesses, and the significance of the accused's unsatisfactory explanation for possession.
Headnote:
Narcotic Drugs and Psychotropic Substances Act - Possession of Ganja - Sec.20(b)(i) - Summary of Acts and Sections: Sec.20(b)(i), Sec.8(c), Sec.57, Sec.52(2) - The court found substantial compliance with the mandatory requirements of the N.D.P.S.Act, including informing the accused of his right to be searched in the presence of a Gazetted Officer or Magistrate, and furnishing a full report to the immediate Superior Officer after search, seizure, and arrest. The court also noted the substantial compliance with Sec.52(2) regarding forwarding the seized property to the Magistrate without unnecessary delay. The non-examination of independent witnesses at the public place of arrest was deemed reasonable, and the court emphasized that the evidence of police witnesses should not be disbelieved solely for lack of independent witnesses. The accused's lack of satisfactory explanation for the possession of ganja, coupled with the chemical analysis report confirming the substance, led to the confirmation of the conviction and sentence under Sec.20(b)(i) of N.D.P.S.Act.
Fact of the Case:
The accused was found in possession of ganja near a railway station, leading to his arrest and subsequent conviction under Sec.20(b)(i) of N.D.P.S.Act.
Finding of the Court:
The court found substantial compliance with the mandatory requirements of the N.D.P.S.Act, upheld the conviction based on the evidence of police witnesses, and confirmed the sentence of imprisonment and fine.
Issues: Compliance with mandatory requirements of the N.D.P.S.Act, non-examination of independent witnesses, and the accused's explanation for possession of ganja.
Ratio Decidendi: The court emphasized substantial compliance with the N.D.P.S.Act's mandatory requirements, reasonable non-examination of independent witnesses at a public place of arrest, and the significance of the accused's unsatisfactory explanation for possession.
Final Decision: The judgment of the trial court convicting the accused under Sec.20(b)(i) of N.D.P.S.Act and the sentence of imprisonment and fine were confirmed, and the appeal was dismissed.
Accused in C.C.230/1996 on the file of Special Court for Essential Commodities and N.D.P.S.Act Cases, Pudukottai is the Appellant. By the Judgment dated 27.02.1997, the Appellant / Accused was convicted under Section 20(b)(i) of Narcotic Drugs and Psychotropic Substances Act (for short 'N.D.P.S.Act') and sentenced to undergo Rigorous Imprisonment for three years and imposed fine of Rs.12,500/=, in default to undergo Rigorous Imprisonment for 9 months.
2. Case of the Prosecution could briefly be stated thus:-
On 19.03.1996 - 8.00 AM, P.W.3 - Inspector of Police, NIB:CID (Sankaralingam) and P.Ws.1 and 2 - Constables and Police party were keeping watch over movement of Narcotics near Ramanathapuram Railway Station. At about 10.30 AM, the accused Suresh was found to be moving in a suspicious manner. P.W.3 suspected contraband inside the bag, which the accused possessed. To search for the bag of the accused, P.W.3 called for independent witnesses around the area; they have refused. Keeping the police personnel - P.Ws.1 and 2 as witnesses, P.W.3 informed the accused his desire to search the accused. He also informed the right of the accused to be searched before Gazetted Officer or the Judicial Magistrate. The accused informed P.W.3 that he himself could search. To that effect, the accused signed in Ex.P.1 - Letter attested by P.Ws.1 and 2. On search of the white colour urea bag, P.W.3 - Inspector of Police found the accused to be in the possession of ganja. It weighed 1 kg. From out of the seized ganja, two sample packets were taken, weighing 50 grams each. Both sample packets were affixed with seal of N.I.B. The signature of the accused and the witnesses were obtained. As to the search and seizure, Ex.P.2 - Mahazar was written, attested by P.Ws.1 and 2 signed by the accused. The accused was arrested and brought to the Police Station. A case was registered in Crime No.25/1996 under Sec.20(b)(i) read with Sec.8(c) of N.D.P.S.Act. Under Ex.P.3 - First Information Report, in compliance of Sec.57 of N.D.P.S.Act, informing about the arrest of the accused, the case report was sent to the higher officials - Deputy Superintendent of Police, NIB;CID, Madras under Ex.P.4 - Letter.
3. The sample was sent for chemical analysis. As per Ex.P.5 - Chemical Report, the sample was found to be Cannabis. P.W.4 - Inspector of Police(Nesamani) had taken up further investigation. Upon receipt of the Chemical Analysis Report, he has filed the charge sheet against the accused on 16.04.1996.
4. Charge was framed against the accused under Sec.20(b)(i) of N.D.P.S.Act. To substantiate the charges, in the trial court, P.Ws.1 to 4 were examined. Exs.P-1 to P-5 were marked. M.Os.1 to 3 were remanded to Court. The defence is one of total denial. According to the accused, a false case is foisted against him. Upon consideration of the evidence, the trial court found that the accused is proved to be in possession of 1 kg.ganja (in his bag) and that seizure of 1 kg.ganja is proved by the evidence of P.Ws.1 to 3. The trial court pointed out that the Police Officers have no motive or ill-will to falsely implicate the accused. The learned Special Judge found the accused guilty under Sec.20(b)(i) of N.D.P.S.Act and sentenced him to undergo Rigorous Imprisonment as aforesaid.
5. Assailing the conviction, Appellant / accused has preferred this Appeal. Onbehalf of the accused, the case of the Prosecution is assailed on the main ground of non-examination of independent witnesses. Pointing out the place of arrest i.e., near the Railway Station, it is contended that when the accused was arrested in a public place, non-examination of independent witnesses is fatal to the prosecution case. Further submitting that the case is foisted against the accused, who is working as a cooly in the Railway Station and the case is foisted mainly for statistical purposes, the finding of the trial court is assailed contending that the trial court erred in basing the conviction upon the ev
