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IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.N. PRAKASH, J.
Saritha - Appellant
Vs.
Inspector of Police NIB-CID Chennai - Respondent
Crl. A. No. 403 of 2013
Decided On : 21-12-2017
Narcotic Drugs and Psychotropic Substances Act – Section 8, 50 – Code of Criminal Procedure, 1973 – Section 207 – Ganja – Illegal Drugs Possession – Appeal has been filed against the judgment passed in C.C. by the learned Special Judge-II, Additional Special Court under NDPS Act, Chennai – Held, Even if there is any infraction of Section 50 of the NDPS Act (though there is none in this case), since the seizure has been effected from a bag that was carried by the accused, the seizure will not stand vitiated – As regards non-joinder of independent witnesses, Murgaiyan [P.W.2] has clearly stated in his evidence that he called a few people including one Selvam, a shop vendor and Suseela, a fruit vendor, in that area, but they refused to associate themselves with the search. Absence of independent witness for a seizure will not ipso facto vitiate the seizure – In this case, the evidence of Murgaiyan [P.W.2] has been sufficiently corroborated by the evidence of Pandiyan [P.W.3] and Rani [P.W.4]. – As regards the contention that the telegram was sent at 12.32 hrs., but the arrest was effected at 12.30 hrs., this Court is of the view that this, by itself, can only throw doubt on the time of arrest and cannot have the effect of vitiating the seizure which was at an anterior point of time, viz., at 12.00 p.m. – That apart, the telegram was not sent before the arrest, but has been sent only after the arrest and this aspect also has not been confronted to Murugaiyan [P.W.2]. – From the evidence of Shankar Kumar [P.W.1] who analysed the sample, it has been established that the sample with seal in bag was received by the Forensic Science Laboratory from the Special Court and the test answered positive for ganja. – Court does not find any serious infirmity in the impugned judgment warranting interference. – However, taking into consideration the quantum of the contraband and the fact that the appellant is a lady, the sentence of one year Rigorous Imprisonment imposed by the learned Special Judge-II, Additional Special Court under NDPS Act, Chennai, in C.C. is reduced to six months Rigorous Imprisonment. – Appeal Dismissed.
This appeal has been filed against the judgment dated 24.05.2013 passed in C.C.No.29 of 2006 by the learned Special Judge-II, Additional Special Court under NDPS Act, Chennai.
2. The factual matrix of the case is as under :
[a] On 21.03.2015, around 10.15 a.m., Murgaiyan [P.W.2], the Sub-Inspector of NIB-CID received information via phone that one Saritha, a lady aged about 20 years will be coming with ganja between 11 a.m. and 1.00 p.m. for selling the same near the railway foot over bridge in Muthusamy Road. Murgaiyan [P.W.2] recorded the information vide Ex.P.2 and sent the same to V.Ashok Kumar [P.W.5], Inspector of Police, who instructed him to proceed to the place with the police party. Accordingly, Murgaiyan [P.W.2] went along with Pandiyan [P.W.3], Sub-Inspector of Police and Rani [P.W.4], a Station Sweeper and maintained surveillance.
[b] On noticing the accused, they intercepted her and introduced themselves as Officers of NIB CID. Murgaiyan [P.W.2] apprised the accused of her right under Section 50 of the Narcotic Drugs and Psychotropic Substances Act [for short "the NDPS Act"], by issuing a written notice [Ex.P.3] asking for her option to be taken to a Gazetted Officer or a Magistrate for personal search and the accused had declined the offer. Her answer was recorded in Ex.P.3 and her signature has been obtained.
[c] The accused was found carrying a blue colour bag and on checking the bag, it was found to contain ganja. On weighing, it was found to be of 1.200 kgs. Murgaiyan [P.W.2] drew two samples of 50 gms. each and kept the samples in separate covers and the main contraband was also kept in the same bag and sealed with NIB seal. A Seizure Mahazar [Ex.P.4] was prepared for the seizure of the contraband and drawal of samples in the presence of the accused. The accused was arrested by serving on her the arrest memo [Ex.P.5] and was taken to the Police Station, where Murgaiyan [P.W.2] submitted a report under Section 57 of the NDPS Act [Ex.P.6] to the Inspector of Police, NIB-CID. Thereafter, Murgaiyan [P.W.2] registered an FIR [Ex.P.7] in Cr.No.27 of 2005 under Section 8(c) read with 20(b)(ii)(B) of the NDPS Act.
[d] The accused, along with the seized contraband, was produced before the Metropolitan Magistrate, George Town on 21.03.2005 at 8.05 p.m. and she was remanded to judicial custody. The sample was sent through the Special Court for NDPS Act cases to the Forensic Sciences Department, where Shankar Kumar [P.W.1] Chemical Examiner tested the same and found that it answered positive for ganja. He submitted his Chemical Report [Ex.P.1] to the Special Court. Further investigation was conducted by V. Ashok Kumar [P.W.5] Inspector of Police, who filed the charge sheet against the accused before the Special Court for NDPS Act Cases for offences under Sections 8(c) read with 20(b)(ii)B of the NDPS Act.
[e] On the appearance of the accused, she was furnished with the copies of documents under Section 207 Cr.P.C. and a charge under Section 20(8)(c) 20(b)(ii)(B) of the NDPS Act was framed against her. When questioned by the trial Court, she pleaded not guilty.
[f] The prosecution examined 5 witnesses, marked 9 exhibits and 3 material objects. When the accused was questioned under Section 313 Cr.P.C. about the incriminating circumstances appearing against her, she denied the same. No witness was examined on behalf of the accused nor any document marked.
[g] After hearing either side and analysing the evidence on record, the trial Court, by judgment dated 24.05.2013, convicted the accused for offence under Section 8(c) r/w 20(b)(ii)(B) of the NDPS Act and sentenced her to undergo one year Rigorous Imprisonment and to pay a fine of Rs.5,000/- in default to undergo Rigorous Imprisonment for a further period of one month. Challenging the said conviction and sentence, this appeal has been filed.
3. Heard Mr. T.S. Sasikumar, learned counsel for the appellant and Mr. K. Madhan, learned Government Advocate (Crl.Side) appearing
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