1996 Supreme(Mad) 12

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE N. ARUMUGHAM
K.R. NAGAPPAN
Versus
STATE BY INSPECTOR OF POLICE
Criminal Appeal 765 of 1995
Decided On : 05-01-1996

Headnote:(i) Narcotic Drugs and Psychotropic Substances Act 1985 - Section 8(c) r/ws 21 - Conviction under - Appeal- Appellant found in possession of 55 ampules of TIDIGESIC, injection medicine - Each ampule containing 2ml with contents of BUPRENOR PHINE - Appellant found with these contraband without any licence or valid permit - Seized contraband not manufactured or created by appeal - No investigation done with regard to manufacturer of said contraband - Prosecution is erroneous and cannot be sustained.

       Held: The fact that the recovered M.O. 2 series, was subjected to chemical examination as TIDIGESIC injection medicine has not been disputed. It is also noticed that the prosecution has not denied the fact that the said medicine has been manufactured by M/s. Tamil Nadu Dadha Pharmaceuticals, Madras under the proper and valid licence in accordance with the Indian or English pharmacopoeia. If this is the position, then, it is highly difficult for me to accept the case of the prosecution to take the ingredients of TIDIGESIC medicine alone as one of the ingredients of the N.D.P.S. Act and charge the appellant for the offence referred herein. Admittedly, no investigation was done by the respondent as to whether the manufacturer of M.O. 2 series has infringed the relevant Rules or not It is also significant to note that it is not the case of the prosecution that the appellant had manufactured M.O. 2 series by himself and as such he was found in possession of the same on the date and time of the seizure. If this is the position, in so long as no investigation has been done with regard to the manufacturer of the said contraband M.O. 2 series, I am of the firm view that the whole of the prosecution must necessary fall to the ground as it goes to the root of the controversy. (Para 9)

       May be, the appellant accused was found in possession of the said drug by name TIDIGESIC in card board boxes with the manufacturer's name and address, licence and batch number and SO on and he may have possessed the same without any valid licence or licence renewed but however, it is stated that for the reason of possession of the schedule drug, the accused was being prosecuted separately in some other court. Even so, on seeing the wry ampoules, the investigating officer could have noted the address and numbers given in every ampoule. No explanation however has been made as to why he has not made any investigation or attempt to verify the same. Simply because the TIDIGESIC medicine contains Buprenorphine, without having any regard to the definition section above referred to, launching the prosecution and booking the appellant/accused for the relevant offences under the Act are not correct and cannot at all be maintained. The court below has totally over looked the above said aspect and also deliberately failed to take note of the said fact. It is therefore under the circumstances, it is not known under what basis of the materials, the court below has taken cognizance of the offence. After thus having considered the above said serious laches, I am totally constrained to hold that the prosecution has deliberately failed to prove that M.O. 2 series come within the definition of Section 2 of the N.D.P.S. Act. The non-examination of the manufacturer of the said drug and no investigation done on that score by the respondent would affect the prosecution case in its entirety and the learned trial Judge has totally and completely overlooked the same, which is erroneous and cannot be sustained in the eye of law. (Para 10)

       (ii) Narcotic Drugs and Psychotropic Substances Act 1985 - Section 50 - Appellants allegedly found in the possession of contraband - Non-compliance with provision of section 50 - Consent letter prepared by one of the staff in a blank white paper - Genuineness and validity of consent letter being doubtful created document Before searching accused on suspicion accused was not informed of his right to be searched before a Gazetted Officer or the nearest Magistrate - Mandatory provision of section 50 has been violated - Conviction recorded not sustainable.

       Held: That before searching the accused on suspicion, the respondent has not informed the accused/appellant of his right to be searched before a Gazetted officer or the nearest Magistrate if he so desires. What was done in this case, it seems, that after having made him to confess that he was in possession of the TIDIGESIC ampules, his signatures with date were obtained in white blank papers and was got over subsequently. By doing so, the mandatory provision of Section 50 has clearly been violated and has not been complied with, which resulted in great prejudice to the accused for the very reasoning that if the search had been conducted before any Magistrate or a Gazetted Officer, the whole of the prosecution could have been avoided for the reason of the address and details found upon each of the ampules and the card board boxes. (Para 12)

       Result: Appeal allowed, conviction set aside.