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2002 DIGILAW 1431 (MAD)

Manivannan v. State

2002-11-19

V.KANAGARAJ

body2002
Judgment :- This criminal appeal is directed against the judgment dated 19.7.2001 rendered in C.C.No.104 of 2000 by the Court of Special Judge, (E.C.Act) Tanjore, thereby convicting the appellant for the offence punishable under sections 8(c) read with 22 of the N.D.P.S. Act and sentencing him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1 lakh in default to undergo further rigorous imprisonment for a period of three years. 2. Tracing the history of the above appeal coming to be preferred by the appellant, it comes to be known that the respondent/State registered a case against the appellant under sections 8(c) read with 22 of the N.D.P.S. Act in Crime No.11/2000 on the file of N.I.B. C.I.D., Villupuram, on allegations that on 28.3.2000, at about 4.p.m. at Villupuram-Cuddalore Road near Maaligai Medu Bus stop, the appellant/accused was carrying Diazepam powder weighing 300 grams in a plastic pocket without a valid permit or licence to be in possession of the same and since the said act is in contravention of the relevant provisions of the N.D.P.S. Act, the case was registered against the appellant/accused and proceeded with the investigation and a charge sheet has been filed on completion of the investigation, against the appellant/accused. 3. During trial, the prosecution, in its attempt to prove the case against the appellant/accused, would examine five witnesses for oral evidence as P.Ws.1 to 5 besides marking eight documents for documentary evidence as Exs.P.1 to P.8 and would also mark the seized Diazepam packet as the sole material object on the side of the prosecution as M.O.1. 4. On the contrary, on the part of the appellant/accused, two documents have been marked as Exs.D.1 and D.2 though no oral evidence has been let in nor any material object produced before the court. 5. So far as the witnesses examined for oral evidence on the side of the prosecution is concerned, P.W.1 is the Head Constable, who is said to have been accompanied by P.W.4 along with P.W.2 to the place of occurrence and it is the P.W.4 Head Constable, who is alleged to have received the information that the appellant/accused was standing at the bus stop with the contraband in his right hand. P.W.3 is the chemical analyst, who examined and analysed the contraband and submitted the Ex.P.4, report dated 17.5.2000. P.W.3 is the chemical analyst, who examined and analysed the contraband and submitted the Ex.P.4, report dated 17.5.2000. P.W.4 is the Head Constable attached to the N.I.B. Wing, who received the information and passing on the same to the P.W.5 Inspector of Police, went to the spot along with P.Ws.1 and 2 and this witness would not only seize the contraband observing all the formalities but also would cause the arrest of the accused and bring him to the police station and register the Ex.P.6, F.I.R., dated 28.3.2000 and thereafter, gave information to the relatives of the appellant/accused under Ex.P.3. This witness is also said to have prepared Exs.P.1 and P.2 respectively the search report and mahazar and ultimately submit an elaborate report of all the happenings to P.W.5 who ultimately would lay the charge sheet after conducting investigation. 6. So far as the documents marked by the prosecution are concerned, Ex.P.1 is the search report, Ex.P.2 is the mahazar, Ex.P.3 is the arrest nama, all dated 28.3.2000, Ex.P.4 is the chemical analysis report dated 17.5.2000, Ex.P.5 is the intimation dated 28.3.2000, Ex.P.6 is the F.I.R, Ex.P.7 is the detailed report and Ex.P.8 is Form No.95. Regarding the sole material object, it is the seized Diazepam contained in a packet. Besides these evidences placed on record on the part of the prosecution, two documents would be marked on the side of the defence as Exs.D.1 and D.2, namely, the arrest report dated 28.3.2000 and the arrest nama dated 28.3.2000 marked. 7. The trial court in consideration of these evidence placed on record, appreciating the same in the manner required by law in the context of the facts and circumstances of the case, would ultimately arrive at the conclusion holding the accused guilty of the offence punishable under sections 8(c) read with 22 of the N.D.P.S. Act and would sentence the accused to undergo a rigorous imprisonment for a period of ten years and to pay a fine of Rs.1 lakh in default to undergo further rigorous imprisonment for a period of three years. 8. 8. So far as the facts of the case are concerned, it is alleged that the contraband has been kept by the appellant/accused for the purpose of mixing it with toddy and the trial court having taken into consideration the version of the prosecution, the evidence placed on record in support of the case of the prosecution and having discussion not only regarding the possession of the contraband by the appellant/accused but also the manner in which the same has been seized and the case registered against the appellant/accused by the prosecuting officials, would become fully satisfied and would ultimately arrive at the conclusion to convict the accused and sentence him to undergo the rigorous imprisonment, as extracted supra. 9. During arguments, the learned counsel appearing on behalf of the appellant would testify the validity of the trial court in arriving at the conviction and sentence on facts and circumstances pleaded and projected by the prosecution. The learned counsel would point out that the contraband, even admittedly, weighed only 300 grams and only when it exceeds 500 grams it would fall under the `commercial quantity' category and therefore, this is neither below 200 grams so as to fall under the `small quantity category', nor would fall under the commercial quantity category but it would fall in between the two for which the maximum punishment is ten years as per the amended law. 10. The learned counsel would also bring to the notice of the court that no independent witness has been examined by the prosecution and all the witnesses examined by the prosecution are police officials, barring the lone official witness P.W.4, chemical analyst and therefore, basically it is doubtful whether the case of the prosecution is a true one and the arrest has also been made in the manner required by law; that P.W.2 even though, a dobi, who has already admittedly deposed in two other cases, is the stock witness of the police and hence his evidence cannot be given any importance. But the learned counsel would attach much importance for the accused having been punished under the old Act in spite of the case, having fallen not under the amended Act. But the learned counsel would attach much importance for the accused having been punished under the old Act in spite of the case, having fallen not under the amended Act. Amended Act came into force on 2nd October 2001, whereas the judgment has been delivered on 9.7.2001 and the appeal itself has been preferred only on 23.1.2002 and hence it is not a pending appeal so as to invoke the provision under section 41 of the N.D.P.S. Act and it very well falls under the proviso to the Section 41 of the N.D.P.S. Act. But, the learned counsel would firmly argue that it is a case which could be dealt with only in accordance with the amended provision of law and not the earlier law for the purpose of sentence and if so, regarding the weighment of the contraband seized it would not fall under the small quantity category nor under the commercial quantity category but in between the two and would only attract section 21(b) and the punishment is R.I. for 10 years and fine upto rupees one lakh. 11. on the part of the learned Government Advocate, he would sail along with the judgment of the lower court and would say that the lower court has properly dealt with the subject in an appropriate manner and has not only arrived at the right conclusion to convict and sentence the accused but also punish the accused in accordance with the old Act, since it was the old Act which was in force at the time of conviction and therefore would seek to confirm the conviction and sentence as passed by the lower court. 12. On the other hand it would be argued that since it is not a pending appeal or a pending matter on the date of introduction of the amending section, and the very appeal having been filed thereafter, in application of which the sentence is to be reduced. 12. On the other hand it would be argued that since it is not a pending appeal or a pending matter on the date of introduction of the amending section, and the very appeal having been filed thereafter, in application of which the sentence is to be reduced. The learned counsel would also rely on the judgment of the Kerala High Court delivered in THULASEEDHARAN vs. STATE OF KERALA reported in 2002(3)CRIMES 305 wherein, in a case of seizure of ganja weighing about 1.05 kgs, which would fall under section 20(1)(b) of the Act, and the incident took place on 16.3.2000 that is prior to the coming into being of the amended section, the said Court would decide that since the appellant had undergone imprisonment exceeding one year, it reduced the sentence to the period already undergone and fine Rs.10,000/- reduced to Rs.5000/-. 13. Yet another case relied upon by the learned counsel for the appellant is one delivered by the Honourable Apex Court in RAJU ALIAS SALAM vs. STATE OF KERALA reported in 1999 Supreme Court Cases (Cri) 636, wherein 100 mg. brown sugar was seized from the accused and the defence plea was that the same was kept for his personal consumption and the Honourable Apex Court held that `in the circumstances, the courts below not justified in rejecting the defence plea on ground that during the trial, the accused, who was in custody and could not have consumed brown sugar, did not exhibit withdrawal symptoms and in view of such a small quantity of brown sugar no inference could be drawn that it was purchased by the accused for sale and make a profit out of it' and conviction was altered from Section 21 to one under Section 27 and sentence reduced from 10 years' RI and a fine of Rs.1 lakh to one years' RI and a fine of Rs.5000. 14. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both, what comes to be known is that the respondent is said to have registered the case against the appellant/accused on recovery of the packet containing Diazepam said to be used for mixing the same with toddy and the trial Court having trusted the case of the prosecution, has passed on the convicting judgment as per its judgment dated 19.7.2001. However, it has become necessary to assess whether, in evidence, the case has been proved to the standard required for proof of such case. 15. No doubt, like any other criminal case, the respondent State is expected to prove the case put up by it with such standard of proof required by law i.e. proof beyond reasonable doubts. It is the admitted case of the prosecution that the scene of occurrence is the Bus Stand wherein, as per the information received, the appellant was standing with the packet in his hand which contains the contraband weighing 300 gms. It is further the admitted case of the prosecution that there is no independent witness for the whole frame of the case of the prosecution registered against including the recovery, arrest etc. P.W.2 who is said to be a dhobi cleaning the clothes of the police officials thus known to the respondent Police has been made use of as the mahazar witness and all other witnesses are only police officials and under this background, the case has to be studied. Moreover, it is the admitted case of the prosecution that P.W.2 had already figured in some cases as the witness of the respondent. 16. No doubt, the contraband said to have been seized from the appellant is a prohibited item falling within the purview of the NDPS Act, being a psychotropic substance. 17. A glance made into the Chemical Analysis Report would only confirm that the sample sent for analysis is Diazepam, which is a prohibited article under the NDPS Act susceptible to affect the brain, if consumed. Therefore, excepting to identify the sample as that of Diazepam, in no other way, this report would help to decide the case. 18. It is the firm case of the prosecution that the appellant/accused purchased the said contraband from one Krishnamurthy @ Kumar of Koonichampattu and it has been purchased by him for being mixed with toddy and to be sold. Absolutely, no investigation has been done on the part of the respondent either to trace the said seller or to prove that the appellant was in the habit of selling toddy and the case of the prosecution is blunt and not informative. Absolutely, no investigation has been done on the part of the respondent either to trace the said seller or to prove that the appellant was in the habit of selling toddy and the case of the prosecution is blunt and not informative. Without these connecting materials being proved, simply coming forward to tell the story to the effect that the appellant was carrying the packet containing the said item without even examining a single independent witness, the prosecution cannot be said to have proved the case beyond reasonable doubts so as to conclude to pass a sentence of conviction as it has been done by the trial Court. 19. So far as the cases cited by the learned counsel for the appellant, extracted supra, are concerned, whether it is the Kerala High Court Judgment reported in 2002 (3) Crimes 305 or the judgment of the Honourable Apex Court reported in 1999 SCC (Cri) 636, they are inapplicable tot he case in hand since in the Kerala High Court judgment, the judgment had been delivered by the trial Court, after the coming into being of the amended Act and therefore the learned Judge thought it fit to apply the amended provisions of law to that case and the same cannot be cited to the context of the facts in issue in the case in hand. Likewise, the Honourable Apex Court also, to suit the facts and circumstances of the case therein and remarking that the contraband i.e. brown-sugar weighing 100 mg. was only kept by the accused for his personal consumption but not for sale would held that in view of such a small quantity of brown sugar, no inference could be drawn that it was purchased by the accused for sale and make a profit out of it and altered the conviction from Section 21 to that of Section 27 and sentence was reduced from ten years RI and a fine of Rs.1 lakh to one year's RI and a fine of Rs.5,000/=. The facts in the case in hand are entirely different and it is not the plea of the appellant that the contraband had been kept for personal consumption and therefore the norms of the case of the Honourable Apex Court could not also be applied to the case in hand. 20. The facts in the case in hand are entirely different and it is not the plea of the appellant that the contraband had been kept for personal consumption and therefore the norms of the case of the Honourable Apex Court could not also be applied to the case in hand. 20. Regarding the absence of any other independent witness, the prosecution would explain that the place of occurrence is a bus stop, at a place called Maaligaimedu, and two persons viz. Mahalingam and Ganesan who have been requisitioned to stand as witnesses have refused, which is not an excuse for having not examined any independent witness for the recovery, arrest and for the mandatory compliance of Section 52 etc. Therefore, the only inference that could be drawn is that the prosecution has put-up a very weak and unreliable case since it is always dangerous to decide a matter based only on the police witnesses. Further more, Ex.P.1 also could not be taken to have come into existence as it is required by law, just for the simple reason that the signature of the appellant alone has been obtained therein. It cannot be forgotten that the appellant was in the custody of the police at that time and he was not free to exercise his right or will either to deny to sign or take other decisions. Likewise, for the compliance of the mandatory provision that the appellant has the right under law to be searched in the presence of either a Gazetted Officer or a Magistrate, as it has been recorded, is quite immaterial in the sense, since it is the case of the prosecution that he was keeping the contraband in a packet in his hand and not concealed anywhere in the body so as to do a body search in the presence of such witnesses. In a cyclostyled manner, Ex.P.1 has been prepared and the signatures obtained. However, not a single independent witness has attested this vital document Ex.P.1 and it creates great doubt in the coming into being of Ex.P.1 to light. 21. Likewise, the arrest, seizure etc. are also not done in a satisfactory manner and for the weak case of the prosecution, Exs.P.2 and P.3 are not the answer. 22. However, not a single independent witness has attested this vital document Ex.P.1 and it creates great doubt in the coming into being of Ex.P.1 to light. 21. Likewise, the arrest, seizure etc. are also not done in a satisfactory manner and for the weak case of the prosecution, Exs.P.2 and P.3 are not the answer. 22. Neither a uniform case has been put-up by the prosecution in a reliable and believable manner nor the same has been properly investigated into by the prosecuting officials giving the whole picture of the designs of the accused investigating into the connected facts of purchase and utility of the contraband. In fact, a perfunctory investigation has been held by the respondent in a slipshod manner bringing out certain facts in strips without giving the whole picture and putting up the case in an integrated manner. Therefore, based on such inconsistent evidence placed on record in an unreliable manner, no conclusion could be arrived at to the extent that the case of the prosecution has been proved beyond all reasonable doubts as it has been wrongly arrived at by the trial Court and therefore no mention need be necessary that the case of the prosecution suffers from legal infirmities, lacunae and laxities in evidence. In these circumstances, the only course that is open for this Court is to cause its interference into the conviction and sentence arrived at by the trial Court on appreciation of the evidence in the manner that it has done, which is perverse. 23. For all the discussions held, it is clear that the prosecution has failed to prove its case beyond all reasonable doubts and hence the above appeal is entitled to be allowed. In result, (i)the above appeal succeeds and the same is allowed. (ii)The appellant/accused is found not guilty of the offences charged. (iii)The appellant/accused is ordered to be released forthwith, if he is not required in any other case. (iv) The fine amount, if any paid by the appellant, shall be refunded to him forthwith.