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2015 Supreme(Mad) 1218
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
M. SATHYANARAYANAN, J.
Chellappa – Appellant
Versus
State represented by the Inspector of Police, Theni – Respondent
Criminal Appeal (MD) No. 411 of 2007
Decided On : 04-03-2015
For the Appellant:B. Chandra Mohan, Advocate.
For the Respondents:S. Prabha, Government Advocate.
Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 8(c) read with 20(b)(i) – Opium Act - Sections 9/1/78 - Criminal Procedure Code - Section 207 - Rigorous imprisonment – Appeal against conviction – First Information Report - P.W.5 is Sub-Inspector of Police attached to respondent Police Station and he received an information through informant with regard to transportation of ganja - P.W.5 reduced it into writing marked as Ex.P.1 and has sent it to immediate superior in compliance of Section 42(2) of Narcotic Drugs and Psychotropic Substances Act, 1985 marked as Ex.P.12 and took informant along with police party and reached bus stand - P.W.5 requested independent witnesses to act as independent witnesses and they were not inclined to do so - On that day informant identified persons and all of them were carrying bags - Police party chased them and surrounded them and P.W.5 has introduced himself as well as other members of police party and in presence of P.W.4 - Head Constable and Police Constable informed all accused of their right to be searched in presence of a Judicial Magistrate or a Officer and they told him that he himself can search and in this regard a consent letter was also obtained signed by all accused marked as Ex.P.1 - Search of bags carried by all accused revealed that each of them carried of ganja and it was done without any permission or license – Held, Counsel for appellant next contended that from evidence it is apparent that IO has not followed procedure prescribed under Sections 52, 55 and 57 of NDPS Act - May be that IO had no knowledge about operation of NDPS Act on date of incident as he recorded FIR under Sections 9/1/78 of Opium Act - In court view there is much substance in this submission - It is true that provisions of Sections 52 and 57 are directory - Violation of these provisions would not ipso facto violate trial or conviction - However IO cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of accused or seizure of article - In present case IO has admitted that seal which was affixed on article was handed over to witness PW 1 and was kept with him for ten days - He has also admitted that parcels were not sealed by officer in charge of police station as required under Section 55 of NDPS Act - Prosecution has not led any evidence whether chemical analyzer received sample with proper intact seals - It creates a doubt whether same sample were sent to chemical analyzer - Further it is apparent that IO has not followed procedure prescribed under Section 57 of NDPS Act of making full report of all particulars of arrest and seizure to his immediate superior officer - Conduct of witness is unusual as he offered himself to be a witness for search and seizure despite being not asked by IO particularly when he did not know that substance was poppy husk but came to know about it only after being informed by police - Further it is say of witness that seal used by PSI was a wooden seal - As against this it is say of PW 2 SI/IO that is was a brass seal - On basis of aforesaid evidence and faulty investigation by prosecution in court view it would not be safe to convict appellant for a serious offence of possessing poppy husk - In above said paragraph it has been stated that prosecution has not led any evidence whether chemical analyzer received sample with proper intact seals - It creates a doubt whether same sample were sent to chemical analyzer - As already pointed out P.W.5 has admitted that he cannot tell as to sample number of sample contraband drawn immediately after seizure though specific number has been assigned to each of sample drawn from contraband in possession of respective three accused - Criminal Appeal is allowed
1. The accused, who stood charged and tried for the commission of the offences under Sections 8(c) read with 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985, (in short 'NDPS Act') and suffered a conviction and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.25,000/- with a default sentence of rigorous imprisonment for six months, vide judgment dated 31.07.2007, passed in C.C.No.50 of 2001, by the learned Special District and Sessions Judge, (NDPS Act Cases), Madurai, is the appellant.
2. The facts leading to the filing of this appeal, are briefly narrated, as follows:
2.1. P.W.5 is the Sub-Inspector of Police attached to the respondent Police Station and he received an information through the informant on 13.00 hours on 19.10.2000, with regard to the transportation of ganja. P.W.5 reduced it into writing, marked as Ex.P.1 and has sent it to the immediate superior in compliance of Section 42(2) of the Narcotic Drugs and Psychotropic Substances Act, 1985, (in short 'NDPS Act'), marked as Ex.P.12 and took the informant along with the police party and reached Aundipatty bus stand.
2.2. P.W.5 requested the independent witnesses, namely, Pandi, son of Sivamani and Gopal, son of Velu, to act as independent witnesses and they were not inclined to do so. At about 16.00 hours, on that day, the informant identified the persons, namely, Chellappa, son of Andi, Thangam, son of Singamuthu and Andithevar, son of Paramasamy and all of them were carrying the bags. The police party chased them and surrounded them and P.W.5 has introduced himself as well as other members of the police party and in the presence of P.W.4 - Head Constable and Mahendran - Police Constable, informed all the accused of their right to be searched in the presence of a Judicial Magistrate or a Gazetted Officer and they told him that he himself can search and in this regard, a consent letter was also obtained, signed by all the accused, marked as Ex.P.1. The search of the bags carried by all the accused, revealed that each of them carried 5 Kg. of ganja and it was done without any permission or licence.
2.3. P.W.5 has drawn the samples from each of the pockets and assigned numbers as S.1 to S.6 on the seals and the balance contraband was assigned numbers as B.1 to B.3 and was recovered under a cover of mahazar, marked as Ex.P.2. The relatives of the accused were also informed of their arrest and all the accused were brought to the Police Station and thereafter, the cases in Cr.Nos.237, 238 and 239 of 2000, came to be registered for the commission of the offence under Section 20(b)(i) of the NDPS Act. The events that took place were also reduced into writing by P.W.5 and a report was sent to the immediate superior in compliance of Section 57 of the NDPS Act. P.W.4 also took necessary steps to send the samples for chemical analysis. The printed F.I.R was marked as Ex.P.14.
2.4. P.W.6, who took up the investigation, has examined the witnesses and after receipt of the chemical analysis report, marked as Ex.P.7, filed the report charging the appellant/accused for the commission of the offences under Sections 8(c) read with 20(b)(i) of the NDPS Act and filed the charge sheet on the file of the Court of the Special District and Sessions Judge, (NDPS Act Cases), Madurai, which took it on file in C.C. No. 50 of 2001.
2.5. The trial Court has issued the summons to the appellant/accused and on his appearance, furnished with him the copies of documents under Section 207 Cr. P.C. and after granting sufficient time, questioned him and framed the charges under Sections 8(c) read with 20(b)(i) of the NDPS Act. The appellant/accused pleaded not guilty to the charges framed against him.
2.6. The prosecution in order to sustain their case, examined P.W.1 to P.W.6 and marked Exs.P.1 to P.16.
2.7. The appellant/accused was questioned under Section 313(1)(b) of the Code of Criminal Procedure, 1973, with regard to the incriminating circum
