Mandatory provisions of the NDPS Act require strict compliance, and failure to inform the accused of their rights and improper procedural conduct invalidates charges.

JUDGMENT :

M. Nirmal Kumar, J.

The appellant was charged for offence under Sections 8 (c) r/w 22(c) and 8(c) r/w 28 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (In short 'The Act') in C.C.No.124 of 2018. On conclusion of trial, the learned I Additional Special Judge, Court of the Special Judge, I Additional Special Court for Exclusive Trial of Cases under NDPS Act, Chennai acquitted from the charge under Section 8 (c) r/w 28 of the Act but convicted the appellant for offence under Section 8 (c) r/w 22(c) of the Act and sentenced to undergo Rigorous Imprisonment for ten years and to pay a fine of Rs.1,00,000/-, in default to undergo Rigorous Imprisonment for six months vide judgment, dated 26.08.2022. Challenging the judgment of conviction, present criminal appeal is filed.

2. The case of the prosecution is as follows:

(i) On 13.05.2018 at about 13.00 hours, Mr.Venkatesan, Intelligence Officer of NCB/PW1 received secret information that the appellant/Mohideen and one Razak of Saudi Arabia indulged in trafficking of Methamphetamine from Chennti to Kerala and then to Saudi Arabia. The appellant was staying in Hotel Santhi Bhavan, Waltax Road, Park Town, Chennai. PW1 and his team along with Manager Ajmal and Receptionist/PW4 went to Room No.105, enquired its occupant confirmed his name as Mohideen and informed him about information that he is involved in smuggling of Methamphetamine and about the Section 50 of the Act, enquired whether the appellant is willing to be searched in presence of Magistrate or before a gazetted officer. The appellant refused for such search and informed PW1, the NCB official can search him. The appellant admitted he is in possession of 535 grams of Methamphetamine, kept in a transparent polythene cover and handed over the same to PW1.

(ii) After collecting the same, PW1 opened the transparent polythene cover containing white colour crystalline substance. PW1 took out a head size of match stick of white colour crystalline substance from the packet, tested with the drug detection kit which answered positive for Methamphetamine. On the spot, mahazar prepared using laptop and portable printer brought by them in Room No.105 and all the documents and articles recovered from Mohideen annexed with mahazar. The appellant, witnesses viz., PW4 and Ajmal signed the mahazar. The appellant was handed over a copy of mahazar who acknowledged the same. The entire process ended at about 18.00 hours on the same day. On the next day i.e., on 14.05.2018 at about 11.00 hours, the appellant arrested and his arrest intimation (Ex.P20) informed through speed post to his wife Mubashira on the same day. The Remand Application (Ex.P21) under Section 167 Cr.P.C r/w 51 & 53 of the Act submitted before the learned Judicial Magistrate, Ambattur along with the appellant and seized properties. The learned Magistrate on satisfaction remanded the appellant and explained the grounds of his arrest. The appellant made no complaint against NCB officials and he was remanded till 17.05.2018.

(iii) On 15.05.2018, the properties produced before the Special Court for NDPS Act cases. The Samples S1 drawn from P1 was sent to the Joint Director, Customs House Laboratory, Chennai for qualitative and quantitative chemical analysis. PW3/Assistant Chemical Examiner received the samples on 15.05.2018, gave report (Ex.P33), dated 22.05.2018 confirming “The sample is in the form of white crystals. It answers the tests for the presence of Methamphetamine hydrochloride.”.

(iv) PW5/Intelligence Officer of NCB took up further investigation on 18.05.2018, received chemical analysis report