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2004 DIGILAW 217 (MAD)

Suresh v. State

2004-02-17

R.BANUMATHI

body2004
Judgment :- Accused in C.C.230/1996 on the file of Special Court for Essential Commodities and N.D.P.S.Act Cases, Pudukottai is the Appellant. By the Judgment dated 27.02.1997, the Appellant / Accused was convicted under Section 20(b)(i) of Narcotic Drugs and Psychotropic Substances Act (for short 'N.D.P.S.Act') and sentenced to undergo Rigorous Imprisonment for three years and imposed fine of Rs.12,500/=, in default to undergo Rigorous Imprisonment for 9 months. 2. Case of the Prosecution could briefly be stated thus:- On 19.03.1996 - 8.00 AM, P.W.3 - Inspector of Police, NIB:CID (Sankaralingam) and P.Ws.1 and 2 - Constables and Police party were keeping watch over movement of Narcotics near Ramanathapuram Railway Station. At about 10.30 AM, the accused Suresh was found to be moving in a suspicious manner. P.W.3 suspected contraband inside the bag, which the accused possessed. To search for the bag of the accused, P.W.3 called for independent witnesses around the area; they have refused. Keeping the police personnel - P.Ws.1 and 2 as witnesses, P.W.3 informed the accused his desire to search the accused. He also informed the right of the accused to be searched before Gazetted Officer or the Judicial Magistrate. The accused informed P.W.3 that he himself could search. To that effect, the accused signed in Ex.P.1 - Letter attested by P.Ws.1 and 2. On search of the white colour urea bag, P.W.3 - Inspector of Police found the accused to be in the possession of ganja. It weighed 1 kg. From out of the seized ganja, two sample packets were taken, weighing 50 grams each. Both sample packets were affixed with seal of N.I.B. The signature of the accused and the witnesses were obtained. As to the search and seizure, Ex.P.2 - Mahazar was written, attested by P.Ws.1 and 2 signed by the accused. The accused was arrested and brought to the Police Station. A case was registered in Crime No.25/1996 under Sec.20(b)(i) read with Sec.8(c) of N.D.P.S.Act. Under Ex.P.3 - First Information Report, in compliance of Sec.57 of N.D.P.S.Act, informing about the arrest of the accused, the case report was sent to the higher officials - Deputy Superintendent of Police, NIB;CID, Madras under Ex.P.4 - Letter. 3. The sample was sent for chemical analysis. As per Ex.P.5 - Chemical Report, the sample was found to be Cannabis. P.W.4 - Inspector of Police(Nesamani) had taken up further investigation. 3. The sample was sent for chemical analysis. As per Ex.P.5 - Chemical Report, the sample was found to be Cannabis. P.W.4 - Inspector of Police(Nesamani) had taken up further investigation. Upon receipt of the Chemical Analysis Report, he has filed the charge sheet against the accused on 16.04.1996. 4. Charge was framed against the accused under Sec.20(b)(i) of N.D.P.S.Act. To substantiate the charges, in the trial court, P.Ws.1 to 4 were examined. Exs.P-1 to P-5 were marked. M.Os.1 to 3 were remanded to Court. The defence is one of total denial. According to the accused, a false case is foisted against him. Upon consideration of the evidence, the trial court found that the accused is proved to be in possession of 1 kg.ganja (in his bag) and that seizure of 1 kg.ganja is proved by the evidence of P.Ws.1 to 3. The trial court pointed out that the Police Officers have no motive or ill-will to falsely implicate the accused. The learned Special Judge found the accused guilty under Sec.20(b)(i) of N.D.P.S.Act and sentenced him to undergo Rigorous Imprisonment as aforesaid. 5. Assailing the conviction, Appellant / accused has preferred this Appeal. Onbehalf of the accused, the case of the Prosecution is assailed on the main ground of non-examination of independent witnesses. Pointing out the place of arrest i.e., near the Railway Station, it is contended that when the accused was arrested in a public place, non-examination of independent witnesses is fatal to the prosecution case. Further submitting that the case is foisted against the accused, who is working as a cooly in the Railway Station and the case is foisted mainly for statistical purposes, the finding of the trial court is assailed contending that the trial court erred in basing the conviction upon the evidence of police witnesses - P.Ws.1 to 3. 6. Reiterating the findings of the trial court, the learned Government Advocate (Criminal Side) submitted that the mandatory requirements are well complied with and that the evidence of Police Officials being cogent and convincing, the trial court rightly based the conviction upon their evidence. It is further submitted that there is no rule of law that the evidence of Police Officers cannot form the basis for conviction. It is further submitted that there is no rule of law that the evidence of Police Officers cannot form the basis for conviction. The learned Government Advocate contended that when the Appellant / accused has not satisfactorily explained his possession, the trial court rightly convicted him under Sec.20(b)(i) of N.D.P.S.Act and that there is no reason warranting interference. 7. (1) Whether the mandatory requirements of the N.D.P.S.Act are complied with ? and (2) whether the conviction and sentence of imprisonment warrants any interference ? are the short points that arise for consideration in this Appeal. 8. p.w.3 - Inspector of Police, NIB: CID and the Police Constables - P.Ws.1 ad 2 and Police Party were keeping watch over the movement of Narcotics in Ramanathapuram Railway Station on 19.03.1996. At about 10.30 AM, the accused was found to be moving in a suspicious manner. P.W.3 suspected contraband inside the bag in the possession of the accused. Since the independent persons refused to be the witnesses, in the presence of P.Ws.1 and 2, P.W.3 informed the accused his desire to search the accused. He informed the right of the accused to be searched before the Gazetted Officer or the Judicial Magistrate. The accused informed him that P.W.3 himself could make the search. To that effect, accused signed in Ex.P.1 - Letter attested by P.Ws.1 and 2. On search of the white colour urea bag, the accused was found to be in possession of 1 kg.of ganja. From out of which, two packets of sample each weighing 50 grams were taken. P.Ws.1 to 3 have consistently spoken about the search, seizure and arrest of the accused. Their evidence as to the arrest of the accused, search and seizure of the contraband is well supported by the contemporaneous document Ex.P.2 - Mahazar. After the formalities, the First Information Report - Ex.P-3 was registered in Crime No.25/1996. Prompt registration of First Information Report lends assurance to their testimony. 9. Before conducting the search, P.W.3 - Inspector of Police specifically informed the accused as to whether he wanted to be searched in the presence of the Magistrate or the Gazetted Officer. After the formalities, the First Information Report - Ex.P-3 was registered in Crime No.25/1996. Prompt registration of First Information Report lends assurance to their testimony. 9. Before conducting the search, P.W.3 - Inspector of Police specifically informed the accused as to whether he wanted to be searched in the presence of the Magistrate or the Gazetted Officer. Saying that P.w.3 himself could search the person of the accused, the accused had executed Ex.P-1 agreeing for search by P.w.3 himself which is clear from the following:- Thus the requirement of informing the person of his right under Sec.50 of N.D.P.S.Act to be searched in the presence of Gazetted Officer or Magistrate is well complied with. 10. Let us next consider whether there is substantial compliance of Sec.57 of the N.D.P.S.Act. Sec.57 provides that after search, seizure and arrest of the accused, full report must be furnished to the immediate Superior Officer. As noted earlier, Ex.P.3 - First Information Report in Crime No.25/1996 was registered at 12.00 Noon. After registration of the First Information Report, Ex.P.4 - Case Report under Sec.57 of N.D.P.S.Act was sent to the Deputy Superintendent of Police, NIB : CID, Madras. Thus under Ex.P-4 (dated 19.03.1996), the Higher Officer was immediately informed as to the search, seizure of ganja from the accused and also the arrest of the accused. Under Ex.P.4 - Case Report, all the particulars of the arrest and seizure has been made to the immediate superior in substantial compliance of Sec.57 of N.D.P.S.Act. By producing Ex.P-4 coupled with the evidence of P.W.3, I find that the Prosecution has convincingly proved the compliance of Sec.57 of N.D.P.S.Act. 11. Under Sec.52(2) of N.D.P.S.Act, "Every person arrested and article seized under warrant issued under sub-section (1) of section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued". The property seized from the accused was sent to the Court on the same day - 19.03.1996 and received in the court on the same day. Thus there is substantial compliance of Sec.52(2) of N.D.P.S.Act. On the observance of the mandatory provisions of N.D.P.S.Act, the Appellant / accused could have no grievance at all. In fact, in this Appeal, no point was urged as to the compliance of mandatory requirements. 12. The only main contention urged assailing the Prosecution case is non-examination of independent witnesses. Thus there is substantial compliance of Sec.52(2) of N.D.P.S.Act. On the observance of the mandatory provisions of N.D.P.S.Act, the Appellant / accused could have no grievance at all. In fact, in this Appeal, no point was urged as to the compliance of mandatory requirements. 12. The only main contention urged assailing the Prosecution case is non-examination of independent witnesses. The place of arrest is Ramanathapuram Railway Station - Judka stand. Pointing out the place of arrest, it is contended that the place of arrest being a public place, P.W.3 ought to have called for the independent witnesses and obtained the attestation from independent witnesses in Ex.P.2 - Mahazer and for the arrest of the accused. When he was questioned on this aspect, P.W.3 - Inspector of Police had explained the reason for non-examination of independent witnesses. According to him, the independent persons around the area declined to be the witnesses. According to P.W.3, he has contacted one Selvaraj (taxi driver), Rajendran, one auto driver (Kannan) and one Mari in the judka stand, whom he called to be the witnesses; all of them refused to be the witnesses and they refused to give their father's name. There is no reason to doubt this version of P.W.3. Merely because the Prosecution case is set forth by the police witnesses, their evidence should not be disbelieved, for want of examination of witnesses from independent source. When there are no independent witnesses, the Court is only required to be cautious to act on the evidence of P.Ws.1 to 3. 13. Evidence of P.W.3 and the arrest of the accused is further assailed on the ground of not calling for the station Master or the Railway Police. When all others in the surrounding area are pre-occupied with their work, P.w.3 - Inspector of Police cannot be expected to approach all the persons around the area and calling them to be witnesses. In my view, there is nothing on record to disbelieve the version of the police witnesses. Evidence of P.W.3 is corroborated by the evidence of Constables P.W.1 Karnan and P.W.2 Meeramuhaideen. The Prosecution has also established the possession of contraband by the definite evidence of the official witnesses. 14. No doubt, the seizure was near to the Railway Station. Though it is a public place can the Prosecution be successfully assailed for non-examination of independent witnesses is the short point raised in this Appeal. The Prosecution has also established the possession of contraband by the definite evidence of the official witnesses. 14. No doubt, the seizure was near to the Railway Station. Though it is a public place can the Prosecution be successfully assailed for non-examination of independent witnesses is the short point raised in this Appeal. It is a case of chance recovery. While P.W.3 and his police party were keeping watch on the movement of Narcotics, on suspicion they stopped the accused and examined him. Several others might have noted the arrest. In the Railway Station, people would be on the move. When people are keeping on their move, they cannot be expected to cooperate with the police being witnesses that too, in a ganja case. One cannot ignore the hardship the Investigating Agency is facing in securing the witnesses from independent source. The learned Special Judge has rightly placed reliance upon 1996(II) L.W.(Crl.) 612 in rejecting this point urged by the accused. The Prosecution case cannot be doubted for want of independent witnesses. 15. The case of the defence is that accused is a cooly worker, whose signatures were obtained in a blank paper and that he is falsely implicated in the case. As rightly pointed out by the Special Judge, P.Ws.1 to 3 are the police personnel, who have no motive or ill-will to falsely implicate the accused. The search, seizure and arrest of the accused is well proved by the consistent evidence of P.Ws.1 to 3. As shown earlier, the mandatory provisions of N.D.P.S.Act are substantially complied with. The accused was found to be 1 kg.of ganja. The sample was found to be Cannabis as per Ex.P.5 - Chemical Analysis Report. The accused had not satisfactorily accounted for the possession of huge quantity of ganja. The learned Special Judge convicted and sentenced the accused to undergo Rigorous Imprisonment of three years and imposed a fine of Rs.12,500/=. The sentence of imprisonment and the quantum of fine cannot be said to be unduly harsh or disproportionate. No special circumstances are made out for interfering with the quantum of sentence and the fine. The finding of guilt, conviction and the sentence of imprisonment does not suffer from any infirmity, warranting interference. This Appeal has no merits and is bound to fail. 16. No special circumstances are made out for interfering with the quantum of sentence and the fine. The finding of guilt, conviction and the sentence of imprisonment does not suffer from any infirmity, warranting interference. This Appeal has no merits and is bound to fail. 16. Therefore, the judgment of the learned Special Judge, Special Court for E.C.and N.D.P.S.Act Cases (dated 27.02.1997) in C.C.No.230/1996, convicting the Appellant / accused under Sec.20(b)(i) of N.D.P.S.Act and the sentence of imprisonment and the quantum of fine is confirmed and this Appeal is dismissed. The trial court is directed to take immediate steps by issuing warrant to secure the Appellant to commit him to prison for serving the remaining period of sentence.