Compliance with mandatory provisions of the NDPS Act, legality of search and seizure, fair investigation, and modification of default sentence for non-payment of fine.

JUDGMENT

(Prayer: This Criminal Appeal is filed under Section 374(2) of Code of Criminal Procedure, 1973, to set aside the judgment passed against the appellant / accused dated on 23.01.2021 passed in C.C.No.181 of 2018 by the learned first Additional Special Court, Chennai (Cases dealing with NDPS cases) and acquit him from all the charges.)

1. On 25.09.2018, at about 5.00AM, when P.W.1 was on duty as the Inspector in NIB CID, he received a secret information from phone that the appellant / accused is smuggling Ganja by bus from Andra Pradesh for sale in Tamil Nadu. He reduced the said information into writing by about 5.15AM and informed the same to his superior officer P.W.5 and after getting permission from him, proceeded to the place of inspection at about 7.30A.M. at Elavur check post, at about 8.00AM, the appellant / accused was shown by the secret informant and she was carrying two wooden handled shopping bags. Since no other independent witness volunteered, by keeping the Police Personnel who accompanied the search party as witness, the appellant / accused was enquired whether the appellant can be searched by P.W.1 himself or whether she needs to be searched before a Gazetted Officer / Magistrate, to which the appellant / accused consented that she can be searched by P.W.1 itself. Therefore, she made a consent letter ready and after obtaining the signature of the appellant / accused, the appellant / accused handed over both the shopping bags and upon search of the said bags, it was found that each bag contained 11kgs of ganja.

2. Thereafter, by drawing four samples (S1, S2, S3 and S4), two each from the respective bags, the contraband was seized and labelled as P.1 and P.2 respectively. Thereafter, P.W.1 proceeded to prepare the seizure mahazar and made formal arrest of the appellant / accused, informed her husband and thereafter proceeded to the police station and registered a case in Crime No.38 of 2018. She prepared the detailed report to the superior officer as per Section 57 of the NDPS Act. On the same day, she sent the accused for remand and submitted the file to the superior officer. Since the contraband was of commercial quantity, on 28.09.2018, as per the orders of P.W.5, she submitted the contraband before the Special Court along with the requisition letter for chemical analysis of the contraband. Thereafter, the investigation was completed and the charge sheet was laid before the Special Court. Thereupon, the case was taken on file as C.C.No.181 of 2018 and upon furnishing of the copies to the accused and on consideration of the materials, the Trial Court framed the charge under Section 8(c) r/w 20(b)(ii)(c) of the NDPS Act. Upon questioning, the appellant / accused denied the charge and stood trial.

3. So as to bring home the charges, the Seizing Officer namely, Chitra was examined as P.W.1. One Pichamuthu, the Special Sub-Inspector who accompanied P.W.1 for the search was examined as P.W.2. One Meenakshi, the Assistant Deputy Director of Forensic Department, who conducted the analysis of the contraband and gave a finding that it was ganja was examined as P.W.3. One Sarthar, Grade II Constable, who also accompanied the search and stood as witness for seizure was examined as P.W.4. The Investigating Officer was examined as P.W.5. On behalf of the prosecution, Exhibit P.1 to Exhibit P.11 were marked and the samples of the contraband were produced as M.O.I to M.O.IV. Upon being questioned about the material evidences and incriminating circumstances on record, the appellant / accused denied the same as false. Thereafter, no evidence was let in on behalf of the defence. The Trial Court therefore proceeded to hear the learned Special Public Prosecutor on behalf of the prosecution and the learned counsel for the accused and by a judgment dated 3.01.2021, found the accused guilty of the charge and imposed a sentence to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs.1 lakh and in default