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2000 DIGILAW 344 (MAD)

Ravi v. State by Inspector of Police

2000-03-27

V.Bakthavatsalu

body2000
ORDER This appeal is filed by the accused 1 to 5 against the conviction and sentence imposed on the accused by the Special Judge (E.C. Court), Madras in C.C.No.161 of 1996. 2. The charge against the accused is that on 6-7-1996 at about 3.00 p.m. the accused were intercepted by Police and on search, they were found in possession of Narcotic drug heroin and that they are liable to be punished under Section 8-C read with Section 21, N.D.P.S. Act. The accused pleaded not guilty. 3. To prove the charges, the prosecution examined P.Ws.1 to 4 and marked Exs.P-1 to P-22 and MOs. 1 to 5. 4. The case of the prosecution as revealed from the evidence is as follows: P.W. 2 is the Head Constable attached to N1 Police Station is also a Constable attached to N2 Kasimedu Police Station. P.W. 4 was Inspector attached to Kasimedu Police Station. On 6-7-1996 when P.W. 2 was in station, he received an information at about 3.00 p.m. stating that the accused were selling heroin near Periyapalayathamman Temple. Thereupon P.W. 2 gave report to the Inspector under Ex. P-4, P.W. 2 had recorded the report under Ex. P-3 and he gave information to the Inspector of Police under Ex. P-4. 5. P.W. 4 Inspector on receiving the above information directed the above Head Constable to conduct a search. Accordingly P.W. 2 and P.W. 3 proceeded to the spot and intercepted the accused at about 3.45 p.m. P.W. 2 informed them that they were suspected of possessing the Narcotic drug. P.W. 2 also informed them about the right to be searched in the presence of the Gazetted Officer or Magistrate for which the accused told him that they could be searched by Head Constable and the same was reduced to writing P.W. 2 obtained their signature in P-5 to P-9 notices. Thereafter P.W. 2 in the presence of P.W. 3 searched the first accused. The first accused was found in possession of 5 small packets of heroin weighing 1.200 Mgs. P.W. 2 prepared a Mahazar and seized the packets and affixed his seal. P.W. 3 and another Constable signed in the Mahazar Ex. P-10. Similarly, when they searched the second accused he was found in possession of a small polythene bag containing heroin weighing 1.250 Mgs. After sealing the packets, he prepared the Mahazar. Ex. P-11. P.W. 2 prepared a Mahazar and seized the packets and affixed his seal. P.W. 3 and another Constable signed in the Mahazar Ex. P-10. Similarly, when they searched the second accused he was found in possession of a small polythene bag containing heroin weighing 1.250 Mgs. After sealing the packets, he prepared the Mahazar. Ex. P-11. He also recovered 5 small packets from the third accused weighing 15.50 Mgs. under Mahazar Ex. P-12. The fourth accused was found in possession 5 small packets weighing 15.50 Mgs. He prepared Mahazar under Ex. P-13. When P.W. 2 searched the 5th accused, he was found in possession of 5 packets weighing 12.50 Mgs. After sealing the said packets and putting the seal he prepared the Mahazar under Ex. P-14, P.W. 13 and another Constable attested the above Mahazars. Thereafter, P.W. 2 brought the accused to the Police Station and registered a case in Crime No. 876 of 1996. P.W. 2 also sent the special report to the Inspector under Ex. P-21. 6. P.W.1 Chemical Examiner received the samples of 5 packets and on examination of the above packets, he found that they contained heroin and accordingly, he submitted the report under Ex. P-2. 7. P.W. 4 the Inspector examined the accused and he also received the report under Section 57 of the NDPS Act and he prepared Form 95 and sent the same to the Court on 7-7-1996. After obtaining the Chemical Analyst's report, he filed the charge-sheet against the accused. 8. The incriminating materials appearing against the accused were explained to them. The accused denied the above evidence. The second accused has stated that on 5-7-1996, they were taken by the Police in connection with the murder case that occurred in the Egmore Court, and that they were also charged under Section 75 of the City Police Act and that after two days, this case was filed against them. 9. On consideration of the oral and documentary evidence, the Trial Court convicted the accused and sentenced them to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lakh each. Aggrieved by the said conviction and sentence, the present appeal is preferred. 10. 9. On consideration of the oral and documentary evidence, the Trial Court convicted the accused and sentenced them to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lakh each. Aggrieved by the said conviction and sentence, the present appeal is preferred. 10. It is contended by the learned Counsel for the appellants that the case of the prosecution that they apprehended the accused and recovered the Narcotic drug near a Temple appears to be improbable and that the prosecution failed to comply with the requirements of Sections 100 and 165, Cr.P.C. and that the contraband is said to have been seized near the Temple, which is a busy locality and that therefore, it is highly unbelievable that P.W. 2 and P.W. 3 could not secure independent witnesses. It is also contended by the appellants that there is an abnormal delay in sending the property to the Court and that no evidence is let into show as to where the contraband was kept till it was sent to the Chemical Examiner, and that the case of the prosecution regarding recovery of Narcotic drug cannot be true. 11. On the other hand, the learned Government Advocate contended that the evidence of P.Ws. 2 and 3 would establish the case of the prosecution that the accused were found in possession even though they could not secure independent witnesses. The learned Advocate also contended that the property was sent to the Court on 7-7-1996 itself and that subsequently as per the orders of the Court. It was produced before the Special Court and as such it cannot be said that there is undue delay in producing the property. It is seen from the evidence of P.W. 2 that he recorded the information received by him. They also sent the above information to the superior officer P.W. 4 under Ex. P-4. It is thus seen that the requirements of Section 42, sub-clause 2 are complied with. It is also seen from the evidence of P.Ws. 2 and 3 that the accused were also informed about their right to be searched in the presence of the Gazetted Officer or Magistrate and that the accused declined the said offer. The above facts are also found in Exs. P-5 to P-9. Therefore, there can be no difficulty in holding that the provisions of Section 50 of the Act has been complied with. The above facts are also found in Exs. P-5 to P-9. Therefore, there can be no difficulty in holding that the provisions of Section 50 of the Act has been complied with. But the prosecution must prove that heroin was infact recovered from these accused. 12. The appellants contend that the evidence let in by the prosecution that the accused were found in possession of heroin and that the same was recovered in the manner and time alleged by the witnesses appears to be unbelievable. It is admitted that independent witnesses did not sign the mahazar. The mahazar is attested by P.W. 3 Head Constable and another Police Constable. The accused are said to have been found in possession of Narcotic drug near the Temple and that they were searched at about 3.45 p.m. in the day light. P.W. 2 has admitted in the evidence that the Temple was locked at that time; but he has stated that he did not take any step to search for any independent witnesses P.W. 3 has admitted that at the place of occurrence, persons who are known to them were also present and that P. W. 2 asked the said persons to witness the search. But the names of the persons who were called by P.W. 2 are not mentioned in the F.I.R. It is highly unbelievable that no persons could be secured near the place of occurrence, that is temple. 13. It is seen from the evidence of P.W. 2 that he received a definite information that the five accused were found selling heroin near Temple. Therefore, P.Ws. 2 and 3 had ample opportunity to secure independent witnesses. Therefore, the evidence of P.Ws. 2 and 3 that no independent witnesses could be secured to conduct the search appears to be unbelievable. As already stated, when P.W. 2 received the information that five persons were found selling heroin it is highly unbelievable that P.W. 2 or P.W. 3 Police Officials proceeded without taking any efforts to secure independent witnesses. Therefore, the evidence of P.Ws. 2 and 3 that they could not secure independent witnesses cannot be accepted. It is well settled that if Investigating Officer did not take effective steps to procure independent witnesses and explanation offered by them for not securing independent witnesses is unbelievable, then, it must be held that the search is vitiated. Therefore, the evidence of P.Ws. 2 and 3 that they could not secure independent witnesses cannot be accepted. It is well settled that if Investigating Officer did not take effective steps to procure independent witnesses and explanation offered by them for not securing independent witnesses is unbelievable, then, it must be held that the search is vitiated. The learned Counsel for the appellant relies upon the judgment on this aspect reported in Jagtar Singh vs. State of Punjab, 1996 Crl.L.J. 4355. This Court in John Kennedy and Abdul Khader vs. Ramalingam, 1999 Law Weekly Criminal 762, has also taken similar view in 1996 (3) Crimes 400 the Court has held that merely stating that none could be joined is not a convincing explanation. 14. In the unreported decision in Henry vs. State, Cr.R.C.No.416 of 1990, this Court had an occasion to decide an identical question. This Court has held in that decision that the explanation of the officer that he could not secure a single independent witness in a crowded area, cannot be believed. 15. It is no doubt true that the evidence of Searching Officer can be accepted for basing the conviction even in the absence of any independent evidence if the evidence of sole Searching Officer is trustworthy and satisfactory. In this case the search was conducted by the Head Constable even though, they received definite information that five persons were found selling heroin; but they did not make any attempt to secure independent witness and even after proceeding to the spot they did not take any effective steps to procure independent persons to witness the search, it is highly unbelievable that independent witnesses could not be secured that too in a busy place near the Temple in the evening. In the above circumstances, it is hard to accept the evidence of Head Constable alone for holding that accused were found selling heroin and that the same were recovered by them from the accused. On a careful reading of the evidence of P.Ws. 2 and 3, I am unable to accept the explanation trotted out by them for not securing the presence of independent witnesses. 16. It is also contended by the learned Counsel for the appellant that there is abnormal delay in sending the property to the Court and that the delay which is not properly explained would affect the credibility of the prosecution case. 16. It is also contended by the learned Counsel for the appellant that there is abnormal delay in sending the property to the Court and that the delay which is not properly explained would affect the credibility of the prosecution case. It is the version of the accused that they were already arrested on 5-7-1996, in connection with a murder case and that in a petty case they are charged. The materials on records would raise considerable doubt upon the evidence regarding the recovery of the heroin from the possession of the accused. 17. It is admitted that the accused were arrested on 6-7-1996 and that the property was sent to the Special Court on 17-7-1996. It is contended by the prosecution that the property was sent to the Court under Form No. 95 and that the Court directed them to produce the property before the Special Court. It is seen from Form No. 95 that the Court received the Form even on 7-7-1996. The Court has made the following endorsement "to be produced before the Special Court NDPS Court". As the Court immediately returned the Form No. 95, the Court had no occasion to verify the property and enter the same in the property register. It is admitted that the property was not produced on the next day. On the other hand, it is seen that the property was produced before the Special Court on 17-7-1996 along with the requisition letter Ex. P-22 and it would show that the Inspector sent the requisition letter along with the property. Therefore, it is clear that the Special Court did not receive the property before 17-7-1996. After receiving the above property, the property was not kept in the custody of the Court. The letter of the Special Court marked as P-1 will show that the property was sent along with the covering letter dated 18-7-1996. In the above letter, it is stated that the property is being sent through Police Constable but the name of the Police Constable is not mentioned. The crime number is not mentioned in the letter. Even though the above letter is said to have been sent on 18-7-1996. The report of the Chemical Examiner Ex. P-2 will show that the Chemical Examiner received the cover on 22-7-1996. The crime number is not mentioned in the letter. Even though the above letter is said to have been sent on 18-7-1996. The report of the Chemical Examiner Ex. P-2 will show that the Chemical Examiner received the cover on 22-7-1996. It is significant to note that the Metropolitan Magistrate before whom the accused were initially produced for remand is situate near the EC Court, and the distance would be less than 1 Km. The Office of the Chemical Examiner is also situate in the City of Madras. In the above circumstances, I fail to understand as to why there is undue delay on the part of the prosecution in sending the property to the Court. 18. P.W. 4 the Inspector who conducted further Investigation has stated that the accused and property were produced before Court on 7-7-1996. He has also admitted that the property was returned by the Court and that on the same day, the property was sent to the Special Court. When his attention was drawn on this aspect in cross-examination, he has admitted that he did not examine the Constable who produced the property into the Court, but he would say that till 17-7-1996, the property was in their custody. He has also admitted that there is no endorsement in writing to that effect. In the earlier portion of the cross-examination, he has stated that the property was returned by the Court on 7-7-1996 and that on the same day, he sent the property to Special Court. If that is so, the property would not have been kept in the Police Station, then where the property was kept? In order to wriggle out from the above situation. He has given another answer stating that the property was kept in the Police Station till 17-7-1996. It is, thus, seen that the prosecution has not come forward with a definite case that after the property was returned on 7-7-1996 the same was kept in the Police Station. Only when the above infirmities are pointed out by the accused in the cross-examination. P.W. 4 has given the inconsistent answers. Therefore, it can be reasonably inferred from the above facts that the narcotic drug would not have been recovered from the accused in the manner and time alleged by the prosecution. Only when the above infirmities are pointed out by the accused in the cross-examination. P.W. 4 has given the inconsistent answers. Therefore, it can be reasonably inferred from the above facts that the narcotic drug would not have been recovered from the accused in the manner and time alleged by the prosecution. When the Office of the Chemical Examiner is situate with the city limits, no explanation is offered as to why the constable who received the property on 18-7-1996 produced the same before the Chemical Examiner only on 22-7-1996. On this aspect, the Bombay High Court in 1993 Crl. Law Journal 2761 has also held thus:–– "What this Court is required to rule out is the aspect of any possibility of tampering and if it is demonstrated that the packet has been taken out from the custody of the Police Station. There is no explanation as to where it was for a long period of five days and it thereafter appears before the Chemical Analyser, undoubtedly, with some seals on it, in our considered view, there would certainly be a breach of the requirements in respect of safe custody and we cannot, in these circumstances, rules out the possibility of tampering or substitution. It is in these circumstances that we are impelled to give the benefit of doubt to the appellant-accused in the present case." As already stated, the prosecution has not offered any explanation for the delay in sending the property to the Special Court and also to the Chemical Examiner. It is well settled that in the case where the accused is liable to be convicted for a minimum punishment of 10 years, satisfactory and convincing evidence should be adduced by the prosecution. If the evidence adduced regarding the delay in sending the property is considered along with the fact that search was not witnessed by any independent witness, it would lead to the irresistible conclusion that the contraband would not have been recovered in the time and manner alleged by prosecution. The delay in sending the property would seriously affect the credibility of the prosecution case. Therefore, I hold that the reasons assigned by the Trial Court for convicting accused cannot be accepted. 19. The Trial Court has held that failure to procure independent witnesses would not affect the prosecution case. I am unable to sustain the above reason in view of the fact that P.Ws. Therefore, I hold that the reasons assigned by the Trial Court for convicting accused cannot be accepted. 19. The Trial Court has held that failure to procure independent witnesses would not affect the prosecution case. I am unable to sustain the above reason in view of the fact that P.Ws. 2 and 3 had ample time to procure the independent witnesses. 20. Regarding the delay in sending the property. Trial Court has observed that P.W. 4 has stated that the property was, in their custody till 17-7-1996. As already stated the evidence of P.W. 4 on this aspect, cannot be accepted since he has come forward to give inconsistent evidence when he was confronted by the accused in the cross-examination. For the above reasons, the reason given by the Trial Court on this aspect of the case cannot be sustained. I hold that the prosecution failed to prove that the accused are guilty of the offence with which they are charged. 21. In the result, the criminal appeal is allowed. The conviction and sentence imposed on the accused are set aside and the accused are ordered to be released forthwith unless their presence is required in any other case. The fine amount if any paid, shall be refunded to the accused.