The court ruled that a joint communication concerning rights under the NDPS Act violated procedural safeguards, resulting in insufficient evidence for conviction.

JUDGMENT :

SUNDER MOHAN, J.

1. The Criminal Appeal challenges the Judgement dated 17.03.2023 passed in C.C.No.18 of 2018 by the learned Special Judge, I Additional Special Court for Exclusive Trial of Cases under NDPS Act, Chennai, convicting the appellants for the offence under Sections 8(c) r/w 22(b) (ii) of the NDPS Act and sentencing them as follows:

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(i) It is the case of the prosecution that on 04.01.2018 at about 17:30 hours, A1 was found in illegal possession of 8 Nos. of LSD weighing 0.08 grams; that on his confession, it was revealed that A2 and A3 were also in possession of contraband; that on 05.01.2018 at about 00:00 hours, A2 was apprehended and was found in possession of 4 Nos. of LSD weighing 0.04 grams; that at about 3:00 hours, on the same day, A3 was apprehended and was found in possession of 4 Nos. of LSD weighing 0.04 grams and hence, the appellants/A1 to A3 were liable for the offence under Section 8(c) r/w 29(1) and 8(c) r/w 22(b) of the NDPS Act.

(ii) It is the further case of the prosecution that PW1 had received secret information on 04.01.2018 at about 15.30 hours that a person was selling LSD stamps near ICICI Bank, Nungambakkam; that PW1 recorded the information in writing [Ex.P1] and submitted it before the DSP, NIBCID; that thereafter PW1, along with PW2 went to the scene of occurrence with necessary equipments; that A1 was apprehended on the identification by the secret informer and the contraband as stated above was seized; that thereafter PW1 after arresting A1, registered the FIR [Ex.P6] in Cr.No.1 of 2018 under Section 8(c) r/w 22(b) of the NDPS Act; that PW6 conducted the investigation and after examining the witnesses and obtaining the report of the expert, had filed the final report against the appellants/A1 to A3 before the learned Special Judge, I Additional Special Court for Exclusive Trial of Cases under NDPS Act, Chennai.

(iii) On the appearance of the accused, the provisions of Section 207 Cr.P.C., were complied with and the case was taken on file as C.C.No.18 of 2018 by the learned Special Judge, I Additional Special Court for Exclusive Trial of Cases under NDPS Act, Chennai, for trial. The trial Court had framed the charges under Sections 8(c) r/w 22(b) and 8(c) r/w 29(1) of the NDPS Act as against all the accused and when questioned, the accused pleaded 'not guilty'.

(iv) To prove its case, the prosecution had examined 6 witnesses as P.W.1 to P.W.6 and marked 18 documents as Ex.P1 to Ex.P27, besides 10 material objects as M.O.1 to M.O.4. When the accused were questioned, u/s.313 Cr.P.C., on the incriminating circumstances appearing against them, they denied the same. The accused neither examined any witness nor marked any document on their side.

(v) On appreciation of oral and documentary evidence, the trial Court found the appellants not guilty of the offence under Section 8(c) 29(1) of the NDPS Act and found each of them guilty for the offence under Section 8(c) r/w 22(b) of the NDPS Act and sentenced them as stated above. Hence, the accused have preferred the instant appeal challenging the said conviction and sentence.

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(i) Mr.R.C.Paul Kanagaraj, learned counsel for the appellants, would submit that a joint communication was sent under Section 50 of the NDPS Act to A2/2nd appellant and two others, which vitiates the search conducted on A2 and consequently, the seizure and therefore, the 2^nd appellant ought to be acquitted on that very ground; that the seizure from the 1^st