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2004 DIGILAW 297 (MAD)

Philomina v. State by Inspector of Police

2004-02-26

R.BANUMATHI

body2004
Judgment :- The Accused in C.C.No.476 of 1996 on the file of Special Court for Essential Commodities Act and N.D.P.S. Act, Pudukottai is the Appellant. By the judgment dated 27.06.1997, the learned Special Judge has convicted the Accused under Sec.8(c) r/w 20(b)(i) of Narcotic Drugs and Psychotropic Substances Act (for short, referred as N.D.P.S. Act) and sentenced her to undergo Rigorous Imprisonment for four years and also imposed fine of Rs.15,000/-. 2. Brief case of the prosecution: P.W.3 - Muthusamy is the Head Constable of NIB; CID, Trichy. On 20.11.1996 - 6.30 a.m., he received information that Accused Philomina and one Raphia were selling Ganja near Old Central Talkies, Trichy. That information was reduced into writing under Ex.P.3. Ex.P.3 was submitted to P.W.4 - Inspector of Police, who made endorsement authorising P.W.3 to conduct the raid with his party and report. 3. On being authorised, P.W.3 - Head Constable sent requisition to Trichy All Women Police Station for deputing a Woman Constable and also requisitioned Town Village Administrative Officer to accompany him for the raid. Since Town Village Administrative Officer was being preoccupied with other work (Distribution of free Dhoties and Sarees), he sent P.W.1 (Sekar) - Village Assistant to participate in the raid. P.W.2 (Indirani) - Grade I Woman Police Constable No.713 was authorised to go along with the raid party. 4. On 20.11.1996 - 7.30 a.m., P.W.3 and his party were keeping watch near Central Talkies, Trichy. At about 8.00 a.m., the Accused Philomina and the said Raphia came along with a Bag in their hands. The Informant identified them. P.W.3 questioned the women disclosing his identity. The Accused told their names and stated that they have kept Ganja in their Bags. On being called, independent persons were not forthcoming to be witnesses. Therefore, P.W.3 informed the Accused and Raphia about his proposal to search them. At that time, P.W.3 also informed the Accused about her right to be searched before the Gazetted Officer or the Judicial Magistrate. Declining the offer, the Accused - Philomina stated that they themselves (P.W.1 and his party) could conduct the search. But, she refused to sign in the Report (Ex.P.2) which was prepared to that effect. At that time, P.W.3 also informed the Accused about her right to be searched before the Gazetted Officer or the Judicial Magistrate. Declining the offer, the Accused - Philomina stated that they themselves (P.W.1 and his party) could conduct the search. But, she refused to sign in the Report (Ex.P.2) which was prepared to that effect. Accused Raphia affixed her Left Thumb Impression in the Report, which was prepared in connection with her, agreeing for search by P.W.3 and his party (That document was marked as Exhibit in the case registered against Raphia in C.C.No.47 of 1996). 5. Search. When the Bag of the Accused was searched, it was found to be containing Ganja. On being weighed with the Scale, it weighed 3.250 kgs. Two sample Packets - M.Os.1 and 2, each containing 50 grams were taken. NIB seal was affixed and witnesses have signed in the same. In the samples - M.Os.1 and 2, Accused Philomina refused to sign. The remaining Ganja - M.O.3 was kept in the same Bag. M.Os.1 to 3 were seized under Ex.P.1 - Mahazar, which was attested by P.Ws.1 and 2. 6. Arrest and Registration of the Case. Accused Philomina and Raphia were arrested. Ex.P.4 is the Arrest Report informing the Accused about the reason for the arrest. P.W.3 and his party have returned to the Office of NIB; CID, Trichy. A case was registered in Crime No.52 of 1996 under Sec.8(c) r/w 20 (b) (i) of N.D.P.S. Act against the Accused Philomina. Ex.P.5 is the First Information Report relating to this Accused. 7. Further Investigation. After registration of the case, in compliance of Sec.57 of the Act, P.W.3 sent Ex.P.7 - Report containing details of the case to P.W.4 - Inspector of Police. Upon receipt of the First Information Report and the case Report, P.W.4 - Inspector of Police had taken up further investigation. Witnesses - P.Ws.1 to 3 were examined. Requisition was sent to the Court for sending the samples - M.Os.1 and 2 to Chemical Analysis. As per Ex.P.8 - Chemical Analysis Report, the samples were found to be containing "cannabis". On completion of the investigation, Charge Sheet was filed against the Accused Philomina on 14.12.1996 under Sec.8(c) r/w 20(b)(i) of N.D.P.S. Act. 8. To substantiate the charge against the Accused, in the Trial Court P.Ws.1 to 4 were examined. Exs.P.1 to P.8 were marked. As per Ex.P.8 - Chemical Analysis Report, the samples were found to be containing "cannabis". On completion of the investigation, Charge Sheet was filed against the Accused Philomina on 14.12.1996 under Sec.8(c) r/w 20(b)(i) of N.D.P.S. Act. 8. To substantiate the charge against the Accused, in the Trial Court P.Ws.1 to 4 were examined. Exs.P.1 to P.8 were marked. M.Os.1 to 3 were remanded to the Court. Defence is one of total denial. According to the Accused, a false case is foisted against her by preparing the documents in the Station itself. To substantiate the defence, D.W.1 - Stephen, who was on duty in V.A.O's. Office on 20.11.1996 was examined onbehalf of the Accused. 9. After elaborately extracting the oral evidence of the witnesses, the learned Special Judge found that the mandatory requirements of Sec.42(2), Sec.50 and Sec.57 of the Act are well complied with and the evidence of P.Ws.1 to 3 as to arrest, search and seizure of Ganja from the Accused was accepted as reliable. Defence version and the evidence of D.W.1 - Stephen that the documents were prepared in the Office of NIB; CID was rejected. Aggrieved over the conviction, the Appellant / Accused has preferred this appeal. 10. Taking me through the evidence of P.W.1, the learned counsel for the Appellant / Accused has drawn the attention of the Court to the answers elicited from P.W.1 that he signed in the documents in the Office of NIB; CID, Trichy. It is submitted that those answers coupled with the evidence of D.W.1 establish the defence version that the documents were prepared only in the Office, falsifying the alleged arrest, search and seizure. Contending that there is no substantial compliance of Sec.50 of the Act, the learned counsel submitted that non-compliance of mandatory requirements vitiates the conclusion. 11. Supporting the findings of the Trial Court and placing reliance upon the evidence of P.Ws.1 to 3, the learned Government Advocate submitted that the evidence as to the recovery of Ganja from the Appellant / Accused is well proved by the cogent and consistent evidence of P.Ws.1 to 3. Further contending that the mandatory requirements are well complied with, the learned Government Advocate submitted that the Trial Court has well considered the evidence and that there is no reason warranting interference. 12. Further contending that the mandatory requirements are well complied with, the learned Government Advocate submitted that the Trial Court has well considered the evidence and that there is no reason warranting interference. 12. Whether the mandatory requirements are complied with and whether the conviction of the Appellant / Accused for the offence under Sec.8 (c) r/w 20(b) (i) of the N.D.P.S. Act suffers from any infirmity warranting interference ? is the short point that arises for consideration in this appeal. 13. On requisition from P.W.3 - Head Constable, P.W.1 (Sekar) - Village Assistant was sent by the Village Administrative Officer, Trichy to participate in the raid. There could be no denying that P.W.1 accompanied P.W.3 on 20.11.1996 to Trichy Central Talkies near Uppupparai. Since the Village Administrative Officer was preoccupied with other work - Distribution of free Dhoties and Sarees, he happened to depute P.W.1. In fact, D.W.1 - Stephen examined onbehalf of the Accused himself admits that P.W.1 was so deputed by Village Administrative Officer to accompany P.W.3 to participate in the conduct of search. 14. D.W.1 - Stephen, who is said to be a Social Worker, was also attending the work of Distribution of free Dhoties and Sarees in the Office of the Village Administrative Officer. According to D.W.1, he was informed by P.W.1 that he signed in the case documents in the Office of NIB; CID. Likewise, P.W.1 in his cross - examination had also stated that he signed in Exs.P.1 to P.3 and other documents only in the Office of NIB; CID, Trichy and thereby, he had given a go-by to his earlier version. Drawing the attention of the Court to those answers of P.W.1 in the cross - examination, case of the prosecution is very much attacked contending that the entire case against the Accused is foisted with the documents created later. This contention has no force. P.W.1 was examined in chief on 21.01.1997, on which date he has clearly spoken about the arrest, preparation of the samples and preparation of the documents near Central Talkies, Uppuparai, Trichy. After two months, P.W.1 was recalled and cross - examined on 20.03.1997. During the interval, P.W.1 has changed his mind giving a go-by to his earlier version stating that he signed in the documents in the Office of NIB; CID... After two months, P.W.1 was recalled and cross - examined on 20.03.1997. During the interval, P.W.1 has changed his mind giving a go-by to his earlier version stating that he signed in the documents in the Office of NIB; CID... The changed version of P.W.1 in his Cross - Examination would not in any way undermine his earlier version nor the case of the prosecution, regarding the arrest of the Accused near Central Talkies, Trichy. 15. As directed by the Inspector, P.W.2 (Indirani) - Grade I Woman Police Constable accompanied P.W.3 to participate in the raid. Her presence is strengthened by her signatures in Ex.P.1 - Mahazar and other relevant documents. 16. The Appellant / Accused was arrested opposite to Central Talkies, Trichy. In his evidence, P.W.3 has admitted that near that place, people will be all around the area and that the place is a busy area of commercial activities even from 4.00 a.m. Just opposite to the place of arrest is the Pillaima Nagar, where there are said to be nearly thousand houses. Yet, no independent witnesses are examined on the side of prosecution. 17. The case of the prosecution is attacked on the ground of non-calling of independent witnesses to the search, seizure and arrest of the Accused. P.W.3 has explained that he called the independent persons to be the witnesses, who declined to be witnesses. Thereafter, the search was conducted by P.W.2 - Woman Police Constable in the presence of P.W.1 - Village Assistant. Absolutely, there is no reason to disbelieve the version of P.W.3 that he called for independent witnesses. No doubt, Central Talkies is surrounded by shops of commercial activities. Merely because the prosecution was not able to produce the independent witnesses or involve the independent witnesses in the search and seizure, Court cannot doubt the prosecution case, which is otherwise consistent. The general handicap of the investigating agency in securing the independent persons to be the witnesses, particularly in Narcotic cases cannot be lost sight of. Non-examination of independent witnesses is not a reason to doubt the prosecution case. 18.Compliance of mandatory requirements. Sec.42(1):- Before going to the evidence as to the actual search and seizure, it is to be seen whether the mandatory requirements are complied with. The object of N.D.P.S. Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. 18.Compliance of mandatory requirements. Sec.42(1):- Before going to the evidence as to the actual search and seizure, it is to be seen whether the mandatory requirements are complied with. The object of N.D.P.S. Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. Therefore, these provisions make it obligatory that such of those officers mentioned therein, on receiving an information, should reduce the same to writing and also record reasons for the belief which carrying out search as provided under the proviso to Section 42(1). To that extent they are mandatory. Under Sec.42(1), the officer concerned, when he has reason to believe from his personal knowledge or information received from any person, he is obliged to take it down in writing if such information constitutes an offence punishable under Chapter IV of the Act and send it forthwith to his immediate superior. 19. Under Sec.42(2) of the N.D.P.S. Act, it is the duty of the empowered officer, who has taken down the information in writing or records the grounds under the provisions of Sec.42(2) should forthwith send the copy thereof to his immediate superior officer and to that extent, the provision is mandatory. 20. In the instant case, on 20.11.1996 - 6.30 a.m., P.W.3 - Head Constable got information from the Informant about the Appellant / Accused Philomina and Raphia selling Ganja. That information was reduced into writing under Ex.P.3. Ex.P.3 was submitted to his immediate superior - P.W.4 (Inspector of Police) by P.W.3. By making endorsement in Ex.P.3, P.W.4 - Inspector of Police authorised P.W.3 "to raid with his party and report compliance". On being so authorised, P.W.3 proceeded further. Thus the requirements of-- (i) Sec.42(1) to record the prior information in writing; (ii) requirements of Sec.52(2) submitting the report to the immediate superior; are well complied with. No defect could be pointed out in compliance of Sec.42. 21. Compliance of Sec.50. At about 8.00 a.m., the Appellant / Accused and Raphia came along with a Bag. The Informant identified them. P.W.3 questioned the women and the Appellant / Accused told her name and stated that they have kept Ganja. P.W.3 informed them about his proposal to search. No defect could be pointed out in compliance of Sec.42. 21. Compliance of Sec.50. At about 8.00 a.m., the Appellant / Accused and Raphia came along with a Bag. The Informant identified them. P.W.3 questioned the women and the Appellant / Accused told her name and stated that they have kept Ganja. P.W.3 informed them about his proposal to search. At that time, P.W.3 informed the Appellant / Accused and Raphia about their right to be searched before the Gazetted Officer or Judicial Magistrate. Evidence of P.Ws.1 to 3 is consistent to the effect that the Appellant / Accused was informed of her right that they could be searched either before the Gazetted Officer or Judicial Magistrate. The Appellant / Accused told P.W.3 that they themselves could search. To that effect, Ex.P.2 - Report was prepared and the Accused Philomina refused to sign in Ex.P.2. The substantial compliance of Sec.50 is clear from the following in Ex.P.2:- The fact that the availability of the right was made known to the Accused and that the Accused had declined the offer is thus clear from the above extract and the cogent evidence of P.Ws.1 to 3. 22. The mandate of Sec.50 is that the Accused was to be informed of a right to be searched in the presence of Gazetted Officer or Judicial Magistrate. The Accused being female, Sec.50(4) requires the search to be conducted by the Female Officer. In compliance with Sec.50(4) of the Act, the search was conducted through P.W.2 (Indirani) - Woman Police Constable. Thus, the mandatory requirement of Sec.50 was well complied with and the Appellant / Accused could have no grievance about same. 23. Compliance of Ss.52 and 57. Under Sec.52(1), any officer arresting a person under Section 41, section 42 or section 44 shall as soon as may be, inform him of the grounds for such arrest. As per Sec.57, whenever any person makes any arrest or seizure under this Act, he shall, within 48 hours ... make a full report of all the particulars of such arrest or seizure to his immediate superior. Thus, Sec.52(1) and Sec.57 provide procedural safeguard to prevent further improvement upon the prosecution case. 24. In the instant case, there are enough materials showing compliance of Sec.52(1) and Sec.57. On being arrested, immediately the Appellant / Accused was informed of the grounds for such arrest. Thus, Sec.52(1) and Sec.57 provide procedural safeguard to prevent further improvement upon the prosecution case. 24. In the instant case, there are enough materials showing compliance of Sec.52(1) and Sec.57. On being arrested, immediately the Appellant / Accused was informed of the grounds for such arrest. But she refused to sign in Ex.P.4 - Report of the arrest. In compliance with Sec.57, P.W.3 - Head Constable submitted detailed reports (Exs.P.6 and P.7) to his immediate superior / P.W.4. Thus, the procedural safeguard of Sec.52(1) and Sec.57 were also well complied with. 25. On being searched, the Accused herself produced the Bag containing Ganja. A separate Bag with contraband was seized from Accused Raphia. The Accused was proved to be in exclusive and conscious possession of the contraband in the Bag. From the evidence and the materials on record, the prosecution has well established-- (i) recovery of huge quantity of Ganja; (ii) that the contraband proved to be cannabis. Once the prosecution proves the possession of the contraband, Sec.54 of the Act permits the Court to raise the presumption against the Accused. 26. The burden shifts on the Appellant / Accused to prove the possession of the prohibited substance as legal. No such evidence is forthcoming on this aspect. From the evidence of P.Ws.1 to 3, possessions of 3.250 kgs. Ganja by the Appellant / Accused is well proved. The learned Special Judge has carefully considered the evidence. The reasonings and findings for convicting the Appellant / Accused are well in conformity with the evidence and materials on record. The finding of guilt and the conviction are to be sustained. 27. Learned counsel for the Appellant / Accused submitted that the Accused is aged more than 70 years and alternatively prayed for modification of the sentence. From the materials on record, it is seen that while the Accused was questioned under Sec.313 Crl.P.C, she was aged 65 years implying that she must have been more than 72 years by now. In the pre-trial stage till the date of pronouncing the judgment (i.e., on 27.06.1997), the Accused remained in custody for nearly 7-1/2 months. After the judgment, the sentence of imprisonment imposed on her was suspended as per order of this Court in Crl.M.P.No.2661 of 1997 dated 08.07.1997. In the pre-trial stage till the date of pronouncing the judgment (i.e., on 27.06.1997), the Accused remained in custody for nearly 7-1/2 months. After the judgment, the sentence of imprisonment imposed on her was suspended as per order of this Court in Crl.M.P.No.2661 of 1997 dated 08.07.1997. Thus the Appellant / Accused was also in prison from 27.06.1997 to 08.07.1997 or the date on which she was released on bail on execution of the bail bond. Thus the Appellant / Accused was already in custody for nearly eight months. The penal provision of Sec.20(b)(i) of N.D.P.S. Act then in force does not lay down any minimum sentence. Punishment for the contraband relating to Ganja is Rigorous Imprisonment for a term which may extend to five years and shall also be liable to fine which may extend to Rs.50,000/-. Considering the age and infirm health of the Accused and taking into consideration the period of detention which she has already undergone, modification of the sentence of imprisonment to that of the sentence of imprisonment already undergone with additional fine of Rs.10,000/- would meet the ends of justice. 28. Therefore, the judgment of the Special Court, Essential Commodities Act, Pudukkottai in C.C.No.476 of 1996 (dated 27.06.1997) convicting the Appellant / Accused under Sec.8(c) r/w 20(b) (i) of Narcotic Drugs and Psychotropic Substances Act, is confirmed. The sentence of Rigorous Imprisonment of four years is modified as the period of sentence already undergone by the Appellant / Accused and an additional fine of Rs.10,000/- (Rupees ten thousand only), in default to undergo R.I. for one year and this Appeal is partly allowed.