Seizing officer can send the sized contraband for chemical analysis.

This appeal is directed against the judgment dated 211. 1987 in S.C.No. 50 of 1987, on the file of the Additional Sessions Judge, Ramanathapuram at Madurai, convicting the appellant for the offence under Sec.8-C read with 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act) and sentencing him to undergo R.I. for ten years and also to pay a fine of Rs. 1 lakh.

2. On behalf of the prosecution 3 witnesses were examined, 7 exhibits were filed and two M.Os. were marked.

3. The short facts leading to the prosecution are as follows:

P.W.2 Mahalingam is the Superintendent of Customs. On 30.9.1986 night, P.W.2, along with his party was conducting vehicular check up in Madurai Ramanathapuram road at about 00.16 hours (midnight). At that time, they saw a bus belonging to Marudhupandiyan Transport Corporation, coming from Ramanathapuram towards Madurai. P.W.2 stopped the bus and conducted search on 25 passengers, who were found in the bus. One of the passengers was the appellant. P.W.3 Pitchai was the Conductor. When the appellant was searched, he was found with an Air bag. On suspicion, P.W.2 got the bag and opened it and found the accused/ appellant was carrying heroin and morphine powder weighing about 90 grams in a plastic bag. The contraband was seized from the appellant under Ex.P-2 mahazar, attested by P.W.3, the Conductor and also by the driver of the bus. Then, P.W.2 took the appellant to the Customs Office at Madurai, where the appellant gave a voluntary confession Ex.P-3, which was also attested by P.W.3 and others. Thereafter the accused was arrested and sent for remand.

4. P.W.1, Additional Collector of Customs, Madurai, the superior officer of P.W.2 was informed about the arrest and seizure of M.Os. 1 and 2 by way of Ex.P-5 report. The contraband M.O.1 weighed in the Customs office and was found to weigh 90 grams, for which Ex.P-4 mahazar was prepared by P.W.2. Then, he sent the contraband M.O.1 for chemical examination by the Chemical Examiner attached to Customs Department at Madras. Ex.P-7 is the chemical report, which disclosed that M.O.1 powder was found to be morphine and heroin. The appellant had no licenser or permit to carry the said powder. Then, P.W.2 sent report to P.W.1, the Additional Collector of Customs, Madras. After perusal of the report and documents connected with the case, P.W.1 filed a complaint for the offence under Sec.8-C read with 21 of the NDPS Act, since he was empowered to lay the same.

5. P.W.1, speaks about the perusal of the records and filing of the complaint. P.W.2, the searching officer, speaks about the search and seizure of M.Os. and sending of the report to senior officer. P.W.3, Pitchai, the mahazar witness was treated as hostile, as he said that at the time of seizure, he signed only in a blank paper.

6. After the evidence was over, the appellant was questioned under Sec.313, Crl.P.C. to explain the incriminating circumstances appearing against him in evidence brought on record, and the appellant denied his complicity in the crime and stated that he was not aware of the contents of M.O.1 packet which was handed over to him by an unknown person at Mandapam camp to be carried and delivered to a person at Trichy. However, no defence witness was examined.

7. Mr.E.J. Ayyappan, learned counsel for the appellant, took me through the entire evidence and contended that mandatory procedures have not been followed in this case and that P.W.2, the Superintendent of Customs, instead of sending the sample for analysis through court, has sent directly to the chemical examiner attached to the Customs Office, at Madras and under Sec.52(3) of the NDPS Act, the officer who seized the articles shall forward the same without unnecessary delay to (a) the officer in charge of the nearest police station, or (b) the officer empowered under Sec.53, and under Sec.52(4), the authority to whom any person or article is forwarded under Sub-sec.(2) of Sub