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2002 DIGILAW 1305 (MAD)

Haja v. State by Inspector of Police

2002-10-25

P.SATHASIVAM

body2002
Judgment :- The accused in C.C.No. 94 of 1999 on the file of the Principal District and Sessions Judge, Pudukkottai is the appellant in the above appeal. 2. The appellant was charge sheeted for an offence under Section 8(c) read with 18 of the Narcotic Drugs and Psychotropic Substances Act (herein after referred to as "the Act"). According to the prosecution, on 17.9.1998 at about 12.30 noon in Ramanathapuram Railway Feeders Road near Murugan temple bus stop, the appellant was found in possession of 250 grams of opium valued at Rs.25000/- in 21 blocks without any valid permit. On the side of the prosecution, the Village Administrative Officer, Grade-I Constable, the Sub Inspector of Police, Chemical Analyst and the Inspector of Police were examined as P.Ws 1 to 5 respectively and also marked documents Exs. P1 to P10 in support of their charge. 10 grams of abin sample, remaining part of abin in rexine bag and sample returned after chemical analysis were marked as M.Os. 1 to 3. The learned Principal District Judge on appreciation of entire materials after holding that the accused was guilty for an offence under Section 8(c) read with Section 18 of Narcotic Drugs and Psychotropic Substances Act sentenced him to undergo rigorous imprisonment for ten years and also directed to pay a fine of Rs.1,00,000/-, failing which to undergo rigorous imprisonment for one year. Against the said conviction and sentence the accused has preferred the above appeal. 3. Heard the learned counsel for the appellant as well as the learned Government Advocate. 4. After taking through the entire materials including the oral evidence of prosecution witnesses and the documents, the learned counsel for the appellant has raised the following contentions:- (1) Though in Ex.P4 in the body of the letter the date is mentioned as 17.9.1998, in the copy viz., Ex.P5, the same has not been corrected and it is mentioned only as 13.9.1998. (2) Without formal complaint, the Inspector has proceeded with the case. Hence, there is a procedural error and the same cannot be sustained. (3) All the prosecution witnesses have not referred to the fact that the bag contains the seized materials was sealed in a proper manner. This is serious flaw. (4) The Property Clerk was not examined on the side of the prosecution. Hence, there is a procedural error and the same cannot be sustained. (3) All the prosecution witnesses have not referred to the fact that the bag contains the seized materials was sealed in a proper manner. This is serious flaw. (4) The Property Clerk was not examined on the side of the prosecution. (5) There is no acceptable evidence to show that the seized abin is valued at Rs.25,000/- (6) Inasmuch as in the entire prosecution case there is a reference only with regard to abin, whereas in Section 18 of the Narcotic Drugs and Psychotropic Substances (Amendment) Act it refers only opium poppy and opium, the charge against the accused cannot be sustained. (7) The appellant is entitled to benefit under the amended provisions viz., 18(c) of the Act and minimum sentence may be imposed. 5. Learned Government Advocate has rebutted all the contentions by taking me through the relevant portions from the evidence and the documents. I shall consider the above contentions in seriatim. 6. It is seen that P.W.1, the Village Administrative Officer accompanied P.W.2 and P.W.3, who are Grade-I Constable and the Sub Inspector respectively and they went to Ramanathapuram Railway Feeders Road on 17.9.1998 at about 10.45 p.m., they were waiting their on the information furnished by one informant in Ex.P4. Copy of the said information has been marked as Ex.P5. According to P.W.1, while they were watching, the accused got down from the bus coming from Trichy and the informant identified the accused. It is seen from the evidence of P.W.1, P.W.2 and P.W.3 that the accused was found in possession of M.O.2 rexine bag in his hand. M.O.2 was tested and it contained 21 small packets of black material which, according to P.W.3, is abin. He took 10 grams of it in two plastic covers in M.O.1 and the same were labelled and sealed in the presence of P.Ws.1, 2 and 3. Thereafter, the Sub Inspector arrested the accused (under Arrest report Ex.P5) and registered a case. Ex.P6 is the First Information Report and he also prepared a report under Section 57 of the Act and submitted the same to the Inspector. Copy of the said report, Ex.P8 was submitted to the Court. Thereafter, P.W.5 took up investigation and he examined the witnesses. Based on the requisition made to the Court, the material objects were sent to Chemical Examiner, P.W.4. Copy of the said report, Ex.P8 was submitted to the Court. Thereafter, P.W.5 took up investigation and he examined the witnesses. Based on the requisition made to the Court, the material objects were sent to Chemical Examiner, P.W.4. The Chemical Examiner has tested M.O.3 and found that it contained 10 grams of abin. Based on the evidence of P.Ws.1 to 5 and report, Ex.P9 issued by P.W.4 and after considering the statement of the accused under Section 313 Cr.P.C that the value of abin recovered from the accused is Rs.25,000/-, the Principal District Judge has found that the accused is guilty for offence under Section 8(c) readwith 18 of Narcotic Drugs and Psychotropic Substances Act and sentenced him to undergo rigorous imprisonment for ten years and imposed fine of Rs.1,00,000/-. 7. With regard to the first contention viz., correction of date in Ex.P5, which is a copy of Ex.P4, it is true that in Ex.P4 everywhere i.e., at the top and bottom the date has been mentioned as 17.9.1998, in Ex.P5 in the bottom, after writing, the date 13.9.1998 was corrected as 17.9.1998. The said correction has not been carried out. However, as rightly pointed out by the learned Government Advocate, the correct date viz., 17.9.1998 has been mentioned everywhere both in Ex.P4 and Ex.P5 at the top and bottom and the same has been correctly mentioned in all other documents. As argued by the learned Government Advocate, I have also verified the other documents and everywhere the date has been correctly mentioned as 17.9.1998. Accordingly, I am of the view that no prejudice has been caused to the accused by not correcting the date in the body of Ex.P5. 8. Coming to the second contention that there was no complaint before sending report under Section 57 of the Act, Ex.P6, the First Information Report shows that the complaint has been made by G.Jayaraj, Sub-Inspector of Police, P.W.3. Based on the information of P.W.3, P.W.5, Inspector of Police investigated and registered a case against the accused. In such a circumstance, I am of the view that apart from the statement of P.W.3, no further complaint is required as claimed. Accordingly, I reject the said contention. I am also of the view that there is no procedural error as claimed. 9. In such a circumstance, I am of the view that apart from the statement of P.W.3, no further complaint is required as claimed. Accordingly, I reject the said contention. I am also of the view that there is no procedural error as claimed. 9. Coming to the other contention that seized materials has not been sealed and all the witnesses examined on side of the prosecution have not specifically referred to the said aspect, it is true that the first witness, the Village Administrative Officer, P.W.1 has not stated about the seal in the sample pack. However, P.W.2, Grade – I, Police Constable who was present from the beginning has specifically deposed before the Court that: The Sub Inspector of Police, P.W.3 has also mentioned the above aspect. In his evidence he has deposed that: It is true that P.W.4, the Chemical Analyst has not specifically referred to the seal as explained by P.Ws. 2 and 3, however, in her report Ex.P9 there is a specific reference viz., The specific statements of P.Ws. 2 , 3 and report of the Chemical Analyst, Ex.P9 amply show that there was a seal in the sample packet. In such a circumstance, the said contention is also liable to be rejected. 10. In the light of the specific statements of P.Ws. 2, 3 and Ex.P9, I am of the view that there is no need to examine the Property Clerk as claimed. 11. Coming to the other contention that there is no material to show that seized abin is valued at Rs.25,000/-, here again as rightly contended the value of the seized article is immaterial, because the punishment depends upon the weight of the article in question. Even otherwise, P.W.3, the Sub Inspector of Police who is competent to speak about the value has specifically stated that the seized article is valued about Rs.25,000/-. Hence, the said contention is also liable to be rejected. 12. Coming to the other contention that the accused was charged for possession of abin, whereas statute provides only opium poppy and opium. First of all, this objection has not at all been raised before the trial court. However, it has stated that opium poppy and opium are referable as abin in common parlance. In the absence of such objection at the appropriate time and in the light of the explanation affirmed, I am unable to appreciate the said contention. First of all, this objection has not at all been raised before the trial court. However, it has stated that opium poppy and opium are referable as abin in common parlance. In the absence of such objection at the appropriate time and in the light of the explanation affirmed, I am unable to appreciate the said contention. 13. Finally, the learned counsel for the appellant by drawing my attention to amended provision viz., 18(c) of the Act would contend that lessor sentence may be awarded. Here again as rightly pointed out by the learned Government Advocate, the amended provision (Amendment Act 9/01) is not applicable to the cases pending in appeal. It is clear from proviso to Sub Section (1) of Section 41 of the amended Act. Accordingly, the said contention is also liable to be rejected. 14. Inasmuch as the prosecution has established their case by placing acceptable oral and documentary evidence and of the fact that there is a minimum sentence as prescribed under Section 18 of the Act, I do not find any reason to interfere with the conviction and sentence imposed on the appellant. Consequently, the appeal fails and the same is dismissed.