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IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. JAYACHANDRAN, J.
Mohandass - Appellant
Versus
State Rep. by The Inspector of Police, Coimbatore - Respondent
Crl. A. No. 204 of 2018 & Crl. M.P. No. 8661 of 2022
Decided On : 13-07-2022
NDPS Act - Appeal against conviction - Section 8(c) r/w 20(b)(ii)(c) and Section 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - Summary of Acts and Sections: The court discussed the provisions of Section 8(c) r/w 20(b)(ii)(c) and Section 25 of the NDPS Act. The court highlighted the presumption under Section 54 of the NDPS Act and its application to the case. The judgment emphasized the importance of proving possession and the rebuttal of presumption under Section 54.
Fact of the Case:
The appellant was convicted for possession of ganja under the NDPS Act. The prosecution's case was based on the seizure of 21 kgs of ganja from the appellant's car. The appellant challenged the reliability of the seizure and the delay in producing the contraband before the court.
Finding of the Court:
The court found that the prosecution failed to prove the seizure of the contraband from the appellant and the conscious possession of the contraband by the appellant. The court also noted the unexplained delay in producing the contraband, which raised doubts about tampering.
Issues: The issues revolved around the reliability of the seizure, the delay in producing the contraband, and the conscious possession of the contraband by the appellant.
Ratio Decidendi: The court held that the prosecution's failure to prove the recovery of contraband from the appellant led to the application of Section 54 of the NDPS Act. The court emphasized the importance of proving possession and the rebuttal of presumption under Section 54.
Final Decision: The Criminal Appeal was allowed, and the judgment of the trial court was set aside. The appellant was acquitted and directed to be released forthwith.
JUDGMENT :
(Prayer: Criminal Appeal has been filed under Section 374(2) of Cr.P.C., praying to set aside the judgment made in C.C.No.48 of 2016 on the file of the Additional District/Presiding Officer Special Court for EC Act Cases, Coimbatore dated 08.03.2018 and acquit the accused.)
1. This appeal against conviction filed by the sole accused in C.C.No.48 of 2016 on the file of the Special Court for EC Act Cases, Coimbatore.
2. The appellant was charged for offences under Section 8(c) r/w 20(b)(ii)(c) and Section 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for the alleged possession of 21 Kgs ganja recovered from his possession while he was transporting it in a blue colour Alto car bearing registration No.UP-80-Y-5063 on 09.04.2015 at 12.30 p.m.
3. On considering 10 witnesses for prosecution and 11 exhibits along with 3 material objects marked, the trial Court held the accused guilty of offence under Section 8(c) r/w 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short “NDPS Act”) and convicted and sentenced him to undergo 10 years RI and to pay a fine of Rs.1,00,000/- in default to undergo one year RI, but, acquitted the accused for the offence under Section 25 of the NDPS Act.
4. The case of the prosecution as spoken by the prosecution witnesses is that on 09.04.2015 at about 11.15 a.m., PW-1 (Mr. Muthupandi) Sub Inspector of Police, NIB CID, Coimbatore received a phone call through land line by an informant that on 09.04.2015 at about 12.00 noon, a person about 25 years old is likely to come in a Blue Colour Maruthi Alto Car bearing Reg.No.UP-80-Y-5063 with ganja near Seeruvani Main Road, Sundakamuthu Junction and he will be waiting for PW-1 at that place to identify the person. This information was reduced into writing by PW-1 and placed it before the Deputy Superintendent of Police, NIB, Coimbatore for permission to conduct raid. Based on the said information, the Deputy Superintendent of Police(PW-10-Mr.Ramamurthy)permitted PW-1 to proceed. Accordingly, the police team headed by PW-1 and Head Constabe went to the spot and kept surveillance along with the informant. At about 12.30 p.m., they intercepted the blue colour Maruthi Alto Car bearing Reg.No.UP-80-Y-5063. They introduced themselves and enquired the driver of the car, who discloses his name as Mohandass, S/o Subramani, Pappambalpuram, Andipatti, Theni District, to whom PW-1 declared his intention to search the car and informed him about his raid to be searched before a Judicial Magistrate or a Gazetted Officer. The accused denied to exercise the said option and agreed to be searched by PW-1(Sub Inspector of Police). The option given to the accused and his refusal to exercise the option and consent to be searched by the Sub Inspector of Police were all reduced into writing in the presence of three witnesses and the same is marked as Ex.P2. Thereafter, the accused himself voluntarily produced a bundle covered with brown colour cloth. They found 11 packets in it. On weighing, 10 packets were each 2 kgs and 1 packet 1kg. Inside those packets, there were leaves and stalks of ganja. Two samples each weighing 25 grams were drawn from 11 packets and they were sealed separately and numbered as PS-1 to PS-22. The bulk were packed and sealed. They were numbered as P1 to P11 and the same was seized under mahazar Ex.P3 in which Mr. Poornachandran, Head Constable (PW-3), independent witness Balasubramanian (PW-2) signed as witnesses. The accused was arrested for possessing ganja and remanded to judicial custody.
5. In the course of investigation, the owner of the Alto car used for transporting ganja was ascertained as one Seethapathi (PW-9). In his name, the vehicle stand. However, he turned hostile. He had deposed that he sold the vehicle to one Pandian long ago. The trial Court considering the other incriminating evidence spoken by the prosecution witnesses held that because one of the witness (PW-2) turned hostile, the evidence of
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