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2018 Supreme(Mad) 1782
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
G. JAYACHANDRAN, J.
Thangapandi and Ors - Appellant
Versus
The State represented by The Inspector of Police (L&O) - Respondent
Crl.A(MD)Nos.20, 28, 29, 31 of 2017 and Crl.M.P(MD)No.4978 of 2018
Decided on : 18-09-2018
Advocate Appeared:
For the Appellant : Mr. M.Pitchaimuthu, Mr. M.Ramu, Mr. M.Jegadeeshpandian, Mr. R.Venkateswaran
For the Respondent:Mr. A.Robinson, Government Advocate.
Non-compliance with statutory safeguards, such as search and seizure provisions, can impact the credibility of the prosecution's case and may lead to the benefit of doubt being extended to the accused.
Headnote:
NDPS Act - Conviction under Section 8(c) read with 20(b)(ii)(B) - Summary of Acts and Sections: NDPS Act, Section 8(c), Section 20(b)(ii)(B), Section 50, Section 57 - The judgment discusses the compliance with the provisions of NDPS Act, particularly Sections 50 and 57, and their impact on the prosecution's case. The court analyzes the evidence presented, including the search and seizure procedures, and evaluates the significance of non-compliance with statutory safeguards. The court's decision is influenced by the interpretation of these legal provisions and their application to the facts of the case.
Fact of the Case:
The appellants were found guilty of possessing ganja for sale. The prosecution's case was based on the evidence of police witnesses and forensic reports. The appellants challenged the conviction on grounds of non-compliance with search and seizure provisions of the NDPS Act.
Finding of the Court:
The court found that the prosecution failed to comply with the mandatory provisions of Sections 50 and 57 of the NDPS Act, leading to doubts about the veracity of the prosecution's case. The court concluded that the benefit of doubt should be extended to the accused, resulting in the reversal of the Trial Court's finding.
Issues: Non-compliance with search and seizure provisions, credibility of prosecution's case, significance of statutory safeguards, benefit of doubt.
Ratio Decidendi: The court's decision was based on the non-compliance with statutory safeguards, particularly Sections 50 and 57 of the NDPS Act, and the impact of such non-compliance on the credibility of the prosecution's case.
Final Decision: The appeals were allowed, the conviction was set aside, and the appellants were ordered to be set at liberty. The court also directed the refund of any fine paid by the accused.
1. The appellants herein namely, Thanapandi, Ramani, Anushan and Yoganath Kumar were found guilty of offences under Section 8(c) read with 20(b)(ii)(B) of NDPS Act by the Second Additional Special District Court for NDPS Act Cases at Madurai in C.C.No 269 of 2013. Aggrieved by the conviction and sentence, the accused have preferred appeals individually. Since the above four appeals arise from same judgment, common judgment is passed. For better clarity, the appellants are referred as per their description and ranking in the Trial Court.
2. Brief facts:
(i) On 28.06.2013 at about 22.00 hours at Madurai, K.Pudur, SIDCO Arch, when the Inspector of Police, Law and Order, K.Pudur Police Station and his team were on patrol, found two persons suspiciously in an Auto bearing Registration No.TN-59-AP-5392. When questioned about their name and address, initially they gave contradictory response, later disclosed their name as Thanapandi (A.1) and Ramani (A.2). They confessed possession of ganja (cannabis) kept for sale. They were informed about their option to be searched before a gazetted officer or Judicial Magistrate. They declined to exercise the option. They produced 2.100 kilogram ganja packet kept in the auto and Rs.415/- being the sale proceeds of ganja.
(ii) Based on the confession statement of Thangapandi, his associates, Anushan (A.3) and Yoganath Kumar (A.4) were intercepted near SIDCO post office at about 22.30 hours. They were standing with a two wheeler Hero Honda Splendor bearing Registration No.TN-59-AA-1072. On interrogation, they admit possession of ganja. They were informed about their option to be searched before a gazetted officer or Judicial Magistrate. They declined to exercise the option. They produced 2.200 kilograms of ganja kept in the two wheeler pouch and Rs.400/- being the sale proceeds of ganja.
(iii)The samples drawn from the bulk were sent to the State Forensic Lab. The chemical analyst report reveals, they are leaves, flower and buds of ganja plant containing canabinoid.
(iv)The Trial Court relying upon the evidence let in by the prosecution through its witnesses P.W.1 to P.W.3, Ex.P.1 to Ex.P.10 and M.O.1 to M.O.3 had held the prosecution has proved the guilt of the accused and sentenced them to undergo 15 months rigorous imprisonment and to pay a fine of Rs.10,000/- each, in default to undergo 3 months simple imprisonment. The period of sentence already undergone by the accused were ordered to be set off. The auto M.O.3 and two wheeler M.O.4 along with cash Rs.415/- and Rs.400/- were ordered to be confiscated to the State after the appeal period.
3. A.1 Thangapandi (Appellant in Crl.A(MD)No.20 of 2017), A.2 Ramani (Appellant in Crl.A(MD)No.28 of 2017), A.3 Anushan (Appellant in Crl.A(MD)No.29 of 2017) and A.4 R.Yoganath Kumar (Appellant in Crl.A(MD)No.31 of 2017) are before this Court challenging the judgment of conviction and sentence for the following reasons:
(a) The informant and the investigation officer in this case are one and the same person (P.W.3).
(b) The alleged search and seizure are not in compliance with the provisions of NDPS Act. The right of option to be searched before a gazetted officer or a Judicial Magistrate under Section 50 of the Act is not complied.
(c) No evidence to corroborate the version of the prosecution regarding search and seizure. Joint consent memo for search by P.W.3 is against law and non est.
(d) The crime number found in the slip pasted on the sample packets drawn at the site of seizure and absence of the crime number is other documents prepared contemporaneously at the site of seizure failed to cause doubt in the mind of the Trial Court.
(e) Ex.P.5, the letter of the Special Judge for NDPS Act, forwarding the samples to the lab for analysis, specifically describes the sample packets affixed with police button seal. Whereas, the chemical analyst report Ex.P.6conspicuously silent about the police seal on the sample packet received for analysis.
(f) P.W.2, Thiru.Bas
