2018 Supreme(Mad) 4512

IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. Suresh Kumar, J.
Suresh – Appellant
Versus
Inspector of Police – Respondent
Crl.A. No. 261 of 2012
Decided On : 28-12-2018

Headnote:

NDPS Act,1985 - Sections 50(1), 55,8(c) r/w 20 (b) - Ganja - Search and seizer of Ganja - Accused did not choose to be produced before Magistrate and he had shown willingness to be searched by himself searched accused and found that accused Suresh was in illegal possession of dry ganja of pockets each will carry dry ganja without proper permission/approval from authorities - Immediately said contraband was seized under seizure in presence of witnesses namely one Head Constable and another Head Constable and had taken sample pockets for chemical analysis and accused was arrested at about hours - Along with seized materials he was brought to police station at about hours - Thereafter a special report was submitted by and a case was registered in Cl Flower Bazaar Police Station in Crime under Section 8(c) r/w 20 (b) of NDPS Act against accused and thereafter case was handed over to Inspector of Police who after having investigated same sent accused to Metropolitan Magistrate Court George Town Chennai where accused was remanded to judicial custody - Thereafter during course of investigation examined witnesses and recorded statements and also sent samples dry ganja to Forensic Science Department for chemical analysis and thereafter received report - After completion of investigation altered Section in to 8(c) r/w 20(b) (ii) (B) of NDPS Act and final charge sheet had been filed against accused before Special Court for EC Act Cases Chennai and same was taken on file vide - On behalf of prosecution witnesses were examined to Exhibits were marked Material Objects were produce - Trial Court after having tried matter has given its Judgment whereby trial Court found accused guilty of offence punishable under Section 8 (c) r/w 20 (b) (ii) (B) of NDPS Act and accordingly convicted accused and sentenced him to undergo years RI with fine of in default months RI was also imposed - As against said Judgment and conviction accused preferred this Appeal - Whether prosecution had really seized pockets of contrabands whether they really weighed each of pocket to measure weight is a question to be probed - Whether contraband had been accompanied along with Form on same day of arrest and remand of accused and in this context law has been well settled that delay in producing contraband would vitiate prosecution case under NDPS Act - Whether it was sealed and kept there - Counsel for State no doubt argued that provisions of Section 55 of Act are not mandatory but only directory - Held, Court have seen report of Chemical Examiner and there no doubt it is mentioned that one sealed parcel was received containing a powder and it was analysed to be Brown Sugar - But from records it is clear and it is also noted by both courts below that seized article was produced in court only - After a period of more than three months and there is no evidence whatsoever at all to show with whom seized article was lying and even assuming that it was in custody of Officer-in-charge of Police Station who seized it there is again nothing to show whether it was sealed and kept there - Counsel for State no doubt argued that provisions of Section 55 of Act are not mandatory but only directory - Court need not go into this legal question in this case - Suffice it to say that article seized appears to have been not kept in proper custody and proper form so that court can be sure that what was seized only was sent to Chemical Examiner - There is a big gap and an important missing link - In which is immediately said to have been prepared there is nothing mentioned as to under whose custody it was kept after seizure - Unfortunately for prosecution even does not say that he continued to keep it in his custody under seal till it was produced in court - Evidence given by Police Sub-Inspector who seized article is absolutely silent as to what he did with seized article till it was produced in court - As a matter of fact he did not produce it in court - Supposed to have produced same in court - But does not say anything about this - It is only Circle Inspector who comes into picture at a later date who admitted in cross-examination that seized article was sent by to court and in his cross-examination further admitted that he did not even see if recovered material object was sealed but still he claims that he made necessary application for sending material object for chemical examination and it is only through that Chemical Examiners Report is marked - Further admitted that he did not even know when it reached court are constrained to say that investigation in this case has been perfunctory and on important aspects evidence of concerned officers is highly discrepant and unconvincing and does not throw much light - Therefore evidence adduced is wholly insufficient to conclude that what was seized from appellant alone was sent to Chemical Examiner - Though this is purely a question of fact but this is an important link - Both courts below have not examined this aspect in a proper perspective - No doubt trafficking in narcotic drugs is a menace to society but in absence of satisfactory proof courts can not convict - In result judgment of Sessions Judge as affirmed by High Court is set aside and convictions and sentences passed against appellant are also set aside - If appellant is in jail she shall be set at liberty forthwith - Appeal is accordingly allowed - Here in case in hand very Form itself is in absence as same has not been shown as an Exhibit - Therefore it can be presumed that there had been no production of contraband under Form to Magistrate Court on same date - When these contradictions are found from evidences of prosecution and in absence of any independent witness from prosecution side and there is no mentioning about name of one or two public who are attempted to be witness who refused and also in absence of which was not produced before trial Court by prosecution without appreciating these lacuna or flaw on the part of prosecution Judge in trial Court has accepted theory of prosecution and has convicted appellant/accused - However when this Court applied its mind on facts and circumstances of case as well as prosecution theory and supporting evidence produced on side of prosecution has come to a irresistible conclusion that there has been a complete flaw on side of prosecution to substantiate their case by giving cogent and believable evidence - Therefore this Court has no hesitation to come to a conclusion that prosecution has not proved their case beyond reasonable doubt - Hence by giving benefit of doubt this Court is of considered view that accused cannot be found guilty for alleged offence - Therefore he is entitled to get acquittal - Criminal Appeal Allowed