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2018 DIGILAW 2495 (MAD)

Shajahan v. State

2018-08-10

G.K.ILANTHIRAIYAN

body2018
JUDGMENT : G. K. Ilanthiraiyan, J. This appeal is directed as against the judgment made in C.C.No.94 of 2007 on the file of the Special Judge-I, Additional Special Court under NDPS Act, Chennai, thereby convicting and sentencing the appellant to undergo nine months rigorous imprisonment and to pay a fine of Rs. 10,000/- or in default to undergo one month rigorous imprisonment for the offenses under Section 8 (c) r/w 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (herein after referred to as "NDPS Act"). 2. The case of the prosecution is that on 25.05.2006, P.W.1, the Sub Inspector of Police NIBCID, Chennai, received an information over phone from the informant about the illicit sale of ganja by the accused at Chetti Thottam, Saidapet, Chennai between 12.00 hours and 15.00 hours at the junction of Alandur Road to Mosque Street, Saidapet, Chennai-15. P.W.1 reduced the above said information in writing under Ex.P.1 and submitted the same before P.W.4, the Inspector of Police. After receipt of the permission from P.W.4, P.W.1 proceeded to the spot along with the Head Constables Anaimalai (HC388) and Mr.Palaniswamy (HC-616) with necessary equipments required for this case. P.W.1 and his team reached the spot at 12.00 hours and mounted surveillance over the place. The informant identified the accused and he revealed the accused's name who was having white colour polythene bag. 3. Then, P.W.1 along with his party introduced themselves and enquired the appellant. The address furnished by the appellant tallied with address given by the informant. P.W.1 requested one Raman, S/o. Kumar and Joseph, S/o. Johnson to be the independent witnesses for the search proceedings. They refused to stand as witnesses and had only given their names. Thereafter, P.W.1 made the Head Constables Anaimalai and Palanisamy as independent witnesses and informed the right of the appellant to search before the Gazetted Officer or the Magistrate, for which the appellant replied that he wanted to be searched by P.W.1 himself. P.W.1 searched the accused and the accused handed over a white colour polythene bag containing ganja weighing 2.500kg. P.W.1 took two samples of 50 grams each from the bulk contraband and sealed the samples in M.Os.2 & 3 and the remaining ganja sealed in M.O.1 with NIB seal and obtained the signature of the appellant and the witnesses and seized the same under recovery of mahazar Ex.P.3 at 13.00 hours. P.W.1 took two samples of 50 grams each from the bulk contraband and sealed the samples in M.Os.2 & 3 and the remaining ganja sealed in M.O.1 with NIB seal and obtained the signature of the appellant and the witnesses and seized the same under recovery of mahazar Ex.P.3 at 13.00 hours. Thereafter, the accused was arrested after informing the grounds of arrest at 14.00 hours and he was served with Arrest Memo Ex.P.4. 4. P.W.1 brought the accused along with seized properties and documents to the police station and handed over the same, to the Inspector of Police, P.W.4 with his report Ex.P.5. P.W.4, the Inspector of Police registered a case in Cr.No.38 of 2006 for the offense under Section 8(c) r/w 20(b)(ii)(B) of NDPS Act. The FIR is marked as Ex.P.8. The accused and the case properties along with Remand Report and Form 95, Ex.P.9 sent to the court. The P.W.4 also sent a requisition letter to the Court to send the sample for chemical analysis and it is marked as Ex.P.10. P.W.2 analyzed the same and sent the Chemical Analysis Report Ex.P.7. P.W.4 handed over the entire case diary for further action to P.W.5. The Inspector of Police NIBCID, Chennai, P.W.5 filed final report against the accused for the offenses under Section 8(c) r/w 20(b)(ii)(B) of NDPS Act. 5. The prosecution in order to establish the case examined P.W.1 to P.W.5 and marked Ex.P.1 to Ex.P.11 and also produced M.O.1 to M.O.3. When the accused was questioned under the Section 313 of Cr.P.C. with regard to the incriminating circumstances available against him, he denied the charges. The trial Court after analyzing the evidence on record convicting the accused as stated above. As against the said conviction, the present appeal. 6. The learned counsel appearing for the appellant submitted that Section 50 of NDPS Act was not followed by the prosecution, which is mandatory. The Ex.P.2, search notice does not contain the option and it was mentioned that P.W.1 himself can search the accused. It is clear violation of Section 50 of NDPS Act. He also would rely the judgment passed in "Criminal Appeal No. 273 of 2007 - Arif Khan (a) Agha Khan Vs. State of Uttarakhand" by the Hon'ble Supreme Court of India in this regard. It is clear violation of Section 50 of NDPS Act. He also would rely the judgment passed in "Criminal Appeal No. 273 of 2007 - Arif Khan (a) Agha Khan Vs. State of Uttarakhand" by the Hon'ble Supreme Court of India in this regard. Further, the learned counsel appearing for the appellant would further contend that no independent witness was examined by the prosecution, though the search made in the public place. Therefore, the recovery itself doubtful and the benefit of doubt goes in favour of the accused. 7. The learned counsel appearing for the appellant would further contend that the contraband i.e., the case property was not sent to the Court immediately. The case property sent to the Magistrate Court under Form-95 on 25.05.2006 and the learned Magistrate specifically directed to produce the contraband before the Trial Court. Even though, it was produced before the trial Court on 02.08.2006 with the delay of 65 days. There is no proper explanation given by the prosecution for the delay. Therefore, he prayed for acquittal of the appellant. 8. Per contra, the learned Government Advocate (Crl.Side) appearing for the respondent would submit that Section 50 of NDPS Act complied with. When the accused offered to search before the Gazzetted Officer or before the Magistrate, which was declined by the accused and wanted to be searched by P.W.1. Therefore, the search was made and it is only directory in nature as such no violation in complying the procedure lay down under Section 50 of NDPS Act. Further he would submit that in respect of the independent witnesses for the search, two persons were requested to be the witnesses for the search proceedings. They declined to stand as witnesses and they restricted from giving their name only. Therefore the search was made with the official witnesses i.e., Head Constables. Therefore the prosecution proved the charge beyond any doubt and prayed for dismissal of the appeal. 9. Heard the rival submissions made by Mr.T.S.Sasikumar, learned counsel appearing for the appellant and Mr.R.Ravichandran, learned Government Advocate (Crl. Side) appearing for the State and perused the materials placed before this Court. 10. The contention of the learned counsel appearing for the appellant that whether the search/recovery made by the police officials from the accused of the alleged contraband can be held to be in accordance with procedure laid down under Section 50 of the NDPS Act? Side) appearing for the State and perused the materials placed before this Court. 10. The contention of the learned counsel appearing for the appellant that whether the search/recovery made by the police officials from the accused of the alleged contraband can be held to be in accordance with procedure laid down under Section 50 of the NDPS Act? and whether the compliance of requirements of Section 50 of NDPS Act are mandatory or directory remains no more res-integra and are now settled by two decisions of the Constitution Bench of the Hon'ble Supreme Court of India State of Punjab Vs. Baldev Singh, (1999) 6 SCC 172 " and "Vijaysinh Chandubha Jadeja Vs. State of Gujarat".' It is held that the requirements of Section 50 of NDPS Act are mandatory and therefore the provisions of Section 50 of NDPS Act must be directly complied with. It is further held that it is imperative on the part of the police officers to apprise the person, intended to be searched, of his right under Section 50 of NDPS Act to be searched before the Gazetted Officer or a Magistrate. 11. It is followed in the latest judgment of the Hon'ble Supreme Court of India cited by the learned counsel for the appellant in "Criminal Appeal No. 273 of 2007 - Arif Khan (a) Agha Khan Vs. State of Uttarakhan dt. 27.04.2018" held as follows: "26. It is the case of the prosecution and which found acceptance by the two courts below that since the appellant (accused) was apprised of his right to be searched in the presence of either a Magistrate or a Gazetted Officer but despite telling him about his legal right available to him under section 50 in relation to the search, the appellant (accused) gave his consent in writing to be searched by the police officials (raiding party), the two courts below came to a conclusion that the retirements of Section 50 stood fully complied with and hence the appellant was liable to be convicted for the offence punishable under the NDPS Act. 27. We do not agree to this finding of the two Courts below as, in our opinion, a search and recovery made from the appellant of the alleged contraband "Charas" does not satisfy the mandatory retirements of section 50 as held by this Court in the case of Vijaysinh Chandubha Jadeja. 27. We do not agree to this finding of the two Courts below as, in our opinion, a search and recovery made from the appellant of the alleged contraband "Charas" does not satisfy the mandatory retirements of section 50 as held by this Court in the case of Vijaysinh Chandubha Jadeja. This we say for the following reasons. 28. First, it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or Gazetted Officer; Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband "Charas" was not made from the appellant in the presence of any Magistrate or Gazetted Officer: Third, it is also an admitted fact that none of the police officials of the raiding party, who recovered the contraband "Charas" from him, was the Gazetted Officer and nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband "Charas" as provided under Section 50 of the NDPS Act except in the presence of either a Magistrate or a Gazetted Officer: Fourth, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of the NDPS act. It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a Gazetted Officer. 29. Thought, the prosecution examined as many as five police officials (Pw-1 to Pw-5) of the raiding police party but none of them deposed that the search/recovery was made in presence of any Magistrate or a Gazetted Officer. 30. For the aforementioned reasons, we are of the considered opinion that the prosecution was not able to prove that the search and recovery of the contraband (Charas) made from the appellant was in accordance with the procedure prescribed under Section 50 of the NDPS Act. 30. For the aforementioned reasons, we are of the considered opinion that the prosecution was not able to prove that the search and recovery of the contraband (Charas) made from the appellant was in accordance with the procedure prescribed under Section 50 of the NDPS Act. Since, the non-compliance of the mandatory procedure prescribed under Section 50 of the NDPS Act is fatal to the prosecution case and, in this case, we have found that the prosecution has failed to proved the compliance as required in law, the appellant is entitled to claim its benefit to seek his acquittal." In view of the same the prosecution failed to prove the compliance as required under Section 50 of NDPS Act. 12. Another contention of the learned counsel appearing for the appellant is that the prosecution did not examine any the independent witness supporting the evidence of P.Ws.1 & 2 for search and seizure. Therefore, the search and seizure of alleged contraband did not inspire the confidence of this court. In the absence of any independent witness to corroborate the testimony of the interested witnesses i.e., the Police Officials, conviction cannot be passed solely on the uncorroborated testimony of these witnesses. Therefore, the prosecution failed to prove this case beyond reasonable doubt. 13. The next contention of the learned counsel appearing for the appellant is that the alleged contraband seized and produced before the learned Magistrate on 25.05.2006. The said property was sent to the trial Court only on 02.08.2006 after the delay of 65 days. In this regard it is relevant to rely the judgment reported in "Valsala Vs. State of Kerala, (1993) Supp3 SCC 665" which held as follows :- "4. We have seen the report of the Chemical Examiner and there no doubt it is mentioned that one sealed parcel was received containing a powder and it was analysed to be Brown Sugar. In this regard it is relevant to rely the judgment reported in "Valsala Vs. State of Kerala, (1993) Supp3 SCC 665" which held as follows :- "4. We have seen the report of the Chemical Examiner and there no doubt it is mentioned that one sealed parcel was received containing a powder and it was analysed to be Brown Sugar. But from the records it is clear and it is also noted by both the courts below that the seized article was produced in the court only on 14.1.88 i.e. after a period of more than three months and there is no evidence whatsoever at all to show with whom the seized article was lying and even assuming that it was in the custody of P.W.6, the Officer-in-charge of the Police Station who seized it, there is again nothing to show whether it was sealed and kept there. The learned Counsel for the State no doubt argued that the provisions of Section 55 of the Act are not mandatory but only directory. We need not go into this legal question in this case. Suffice it to say that the article seized appears to have been not kept in proper custody and proper form so that the court can be sure that what was seized only was sent to the Chemical Examiner. There is a big gap and an important missing link. In the mahazar Ex.P.2 which is immediately said to have been prepared, there is nothing mentioned as to under whose custody it was kept after seizure. Unfortunately for the prosecution even P.W.6 does not say that he continued to keep it in his custody under seal till it was produced in the court on 14.1.88. The evidence given by P.W.6 Police Sub-Inspector, who seized the article is absolutely silent as to what he did with the seized article till it was produced in the court. As a matter of fact he did not produce it in the court. P.W.3, A.S.I. is supposed to have produced the same in the court. But P.W.3 does not say anything about this. It is only P.W.7. As a matter of fact he did not produce it in the court. P.W.3, A.S.I. is supposed to have produced the same in the court. But P.W.3 does not say anything about this. It is only P.W.7. the Circle Inspector who comes into the picture at a later date, who admitted in the cross-examination that the seized article was sent by P.W.3 (A.S.I.) to the court and P.W.7 in his cross-examination further admitted that he did not even see if the recovered material object was sealed but still he claims that he made the necessary application for sending the material object for chemical examination and it is only through P.W.7 that the Chemical Examiner's Report is marked. P.W.7 further admitted that he did not even know when it reached the court We are constrained to say that the investigation in this case has been perfunctory and on important aspects the evidence of the concerned officers is highly discrepant and unconvincing and does not throw much light. Therefore the evidence adduced is wholly insufficient to conclude that what was seized from the appellant alone was sent to the Chemical Examiner. Though this is purely a question of fact but this is an important link. Both the courts below have not examined this aspect in a proper perspective. No doubt the trafficking in narcotic drugs is a menace to the society but in the absence of satisfactory proof, the courts can not convict." Therefore the prosecution failed to explain the delay in sending the property to the trial Court. 14. In the light of the foregoing discussions, the appeal succeeded and it is allowed. The impugned judgment of conviction dated 26.07.2012 passed by the learned Special Judge-I, Addl. Special Court under NDPS Court, Chennai in C.C. No.94/2007, is set aside and the appellant/accused is acquitted of all charges. Fine amount, if any paid, shall be refunded to the appellant forthwith. Bail bonds, if any executed, shall stand cancelled.