COMP.A/653/2001 of M.RAVINDRAN Vs on 3 December 2002

:JUDGMENT

The sole accused in a case, wherein he stood charged, tried and foundguilty under Sec.8(c) read with 22 of the N.D.P.S. Act and sentenced toundergo 10 years R.I. along with a fine of Rs.1,00,000/- and in default ofpayment of fine to undergo 2 years R.I. has brought forth this appeal.2. The short facts necessary for the disposal of this appeal are asfollows:

P.W.1 Veerannan, Sub Inspector of Police, attached to N.I.B. C.I.D.,Salem on 16.12.1999 at about 9.00 A.M. along with P.W.4 Vellingiri, HeadConstable No.910 and other police party on secret information were patrollingat Pethanayakkampalayam Bus Stop and entertained suspicion on theappellant/accused, who stood near the bus stop with a yellow colour bag on hisright hand, at about 12.00 noon. P.W.1 after introducing himself, conveyed tohim that he is entitled for the conduct of the search before a gazettedOfficer or a Judicial Magistrate. The accused gave consent to be searched bythe official himself. Accordingly, P.W.1 searched his bag in the presence ofthe two independent witnesses namely P.W.2 Duraisamy, Village AdministrativeAssistant and P.W.3 Duraisamy, Assistant and P.W.4 Head Constable and found 2kilograms of Diazepam. P.W.1 seized the same under Ex.P2 mahazar in thepresence of the said witnesses. He took two samples each 25 grams marked asM.O.2 and affixed the seal and the rest of the contraband was sealed, which is

marked as M.O.1. The appellant/accused was arrested under Ex.P3 arrest memo,a copy of which was served on him. The accused was brought to the Office, anda case was registered in Crime No.91/99 under Sec.20(b)(1) of the N.D.P.S.Act. Ex.P4 printed F.I.R. was prepared. The accused was taken to theconcerned Court along with the F.I.R. and the material objects. They wereall produced before the Court. A detailed report under Ex.P5 under Sec.57 ofthe NDPS Act was prepared and sent to the higher officials. P.W.6Sankarapandian, Inspector of Police, NIB CID, Salem took up furtherinvestigation after obtaining Ex.P5 and other relevant records from P.W.1. Heproceeded to the site of occurrence and also to the house of the accused, madea search in front of the witnesses, prepared Ex.P7 search memo, examinedP.Ws.1 to 4 and recorded their statements. P.W.6 Investigating Officer made arequest under Ex.P8 to the Court for sending M.O.2 for chemical analysis.Accordingly the sample was analysed by P.W.5 Arulanandam, Scientific Assistantattached to the Forensic Laboratory and found that the sample under M.O.2 isdiazepam. P.W.5 sent Ex.P6 report to the Court. On 19.1.2002 P.W.6 examinedP.W.5 and recorded his statement. On completion of the investigation, P.W.6filed a charge sheet against the accused under Sec.22 of the N.D.P.S. Act.3. In order to prove the charge levelled against the appellant/accused, the prosecution examined 6 witnesses and marked 8 exhibits and 3material objects. On completion of the prosecution evidence, theappellant/accused was questioned under Sec.313 of Cr.P.C. as to theincriminating materials found in the evidence of the prosecution witnesses,and the accused flatly denied the same as false. On the side of the defence,the wife of the appellant/accused namely Palaniammal was examined as D.W.1.No documents or material objects were marked on the side of the defence. Onconsideration of the rival submissions and scrutiny of the materialsavailable, the trial Court has found the appellant/accused guilty underSec.8(c) read with 22 of the NDPS Act and sentenced him to undergoimprisonment as stated supra. Aggrieved appellant/accused has brought forththis appeal.

4. Advancing his arguments on behalf of the appellant, the learnedCounsel Mr.N.Anand Venkatesh interalia raised the following points forconsideration by this Court:

No case was made out against the appellant/accused as regards thecharge levelled against him. The prosecution relied on the evidence of P.Ws.1to 4. P.Ws.2 and 3 are independent witnesses. They have turned hostile, andthus, the evidence of those witnesses were not available for the prosecution.P.W.4 was a constable attached to the Department. Therefore, he has spoken inhis evidence in favour of the prosecution. The mandatory provisions under Ss42(2) and 50 of the N. D.P.S. Act has not been strictly complied with by theinvestigating agency. Though, this was brought to the notice of the trialCourt, they were not taken into consideration by that Court. Admittedly,P.W.1 received an information, when he was in the Office on the morning ofthat day. Though the said information was reduced to writing, it was not sentto the higher official, which would be violative of Sec.42 (2) of the Act.The said provision would mandate that on reducing the information, the samemust be passed on to the higher-ups. But, in this case, it was also notcomplied with. Apart from that, according to Sec.50 of the Act, P.W.1 has notinformed to the appellant/ accused that he was having a right to be searchedbefore a Judicial Magistrate or a gazetted Officer. Ex.P1 was a statement of

the accused. A reading of the same would clearly indicate that Sec.50 of theAct was not complied with strictly. Under such circumstances, there wasnon-compliance of the mandatory provisions, which would be fatal to theprosecution case. Hence, the lower Court should have rejected the case of theprosecution. Therefore, the appellant/accused is entitled for an acquittal inthe hands of this Court. In support of his contention, the learned Counselrelied on the decisions reported in 1994-1 -L.W.(Crl.) 292 (STATE OF PUNJAB V.BALBIR SINGH) and 2002-2-L.W.( Crl.) 854 (BECKODAN ABDUL RAHIMAN V. STATE OFKERALA).

5. In answer to the above contentions, with vigour and vehemence, thelearned Government Advocate Mr.V.Jaya Prakash Narayanan would submit that theappeal carries no merits; that it is true that the prosecution examined P.Ws.1to 4; that it is also true that P.Ws.2 and 3 have turned hostile, but it hasno way affected the prosecution case; that P.Ws.1 and 4 have given cogentevidence, and the same was accepted by the trial Court; that it is a casewhere the search was made in a public place and the information was to thateffect only, and hence, Sec.42(2) of the NDPS Act has no application to thepresent facts of the case; that apart from that, there was no search of theperson, but a search of the bag was held, and hence, the provisions of Sec.50of the Act is also not applicable to the present facts of the case; that inview of the above, the contentions of the appellant's side do not meritacceptance, and hence, only on consideration of the evidence available thelower Court has found the appellant guilty, and the appeal has got to bedismissed.

6. This Court paid its full attention on the rival submissions madeand made a close scrutiny of the available materials, which lead to theirresistible conclusion that there is no substance in this appeal.

7. The gist of the prosecution as above was that on receipt of aninformation on 16.12.1999 P.W.1 along with his party including P.W.4 proceededto Pethanayakkampalayam Bus Stop; that they entertained suspicion; that P.W.1questioned the appellant/accused and informed his right to be searched; thathe made a search in the presence of P.W.2 Village Administrative Officer andP.W.3 Thalayari and P.W.4 a Head Constable attached to the Wing and found thatthe yellow colour bag which was held by the accused contained 2 kilograms ofdiazepam; that the contraband was seized under Ex.P2 mahazar; that sampleswere taken; that the accused was taken to the Office; that a case wasregistered; and that the officials produced the accused before the concernedCourt along with all the material objects. The learned Counsel for theappellant with vigour and vehemence, as recorded above, brought to the noticeof the Court that in the instant case, both the independent witnesses P.Ws.2and 3 have turned hostile. But, the Court is unable to see any merit in thiscontention. It is true that P.Ws.2 and 3 have turned hostile. Theprosecution has also not relied on those evidence, which came out of thehostility. But, the prosecution has relied on the evidence of P.Ws.1 and 4.P.W.1's evidence was fully corroborated by the evidence of P.W.4. Rule of lawdoes not say that the evidence of a Constable has got to be rejected and to bedisbelieved. If it is a better piece of corroboration to the other part ofthe evidence adduced by the prosecution, the Court can well rely on the same.P.W.1's evidence as to the procedural formalities that were followed by him atthe time of search and seizure corroborates the evidence of P.W.4. Hence,nothing can be suspected in the evidence of P.Ws.1 and 4 in that regard.

8. Coming to the question whether it is a fit case, where theofficials were to follow the mandatory provisions under Ss 42 and 50 of theN.D.P.S. Act, the Court has to answer in the negative. It is true that aninformation was received by P.W.1, and the same was also reduced to writing.But, the said information was not sent to the higher-ups and not placed beforethe trial Court. In the instant case, P.W.1 has received an information thatthe search was to be made in a public place and not in a building ascontemplated under Sec.42 of the Act. Under such circumstances, what is to beapplied in the case on hand is only Sec.43 of the N.D.P.S. Act and notSec.42. Hence, the decision of the Apex Court relied on by the prosecutionand reported in 1999 (6) SCC 172 (STATE OF PUNJAB VS. BALDEV SINGH) issquarely applicable to the present facts of the case. The Court is of theview that since only Sec.43 of the NDPS Act is applicable, no question ofnon-compliance of Sec.42(2) of the Act would arise. Equally so is thecontention put forth by the appellant's side that there was noncompliance ofSec.50 of the N.D.P.S. Act. In the instant case, a search was made not ofthe person of the appellant/accused, but of the handbag what he was held thattime. It is well settled by the Apex Court in such circumstances that Sec.50has no application at all. Hence, both the contentions put forth by theappellant's side do not carry merit. The lower Court was perfectly correct infinding the appellant/accused guilty under Sec.8(c) read with 22 of theN.D.P.S. Act. The Court is unable to notice any illegality or infirmity inthe conviction recorded by the Court below.

9. Coming to the question of punishment, the lower Court has sentenced the appellant/accused to undergo 10 years R.I. and to pay a fine ofRs.1,00,000/-, in default to undergo 2 years R.I. The Court is of theconsidered view that there is nothing to interfere in the substantive sentenceand also the fine. However, the interest of justice would be met by reducingthe default sentence of 2 years R.I. to 3 months R.I.

10. In the result, the default sentence of 2 years R.I. imposed bythe lower Court on the appellant/accused alone is modified, and in default ofpayment of fine of Rs.1,00,000/ awarded by the lower Court, theappellant/accused shall undergo 3 months R.I. In other respects, the judgmentof the lower Court is confirmed. With this modification, this criminal appealis dismissed.

Index: YesInternet: Yes

To:

1) The Special Judge (E.C. Act), Salem.

2) The Principal Sessions Judge, Salem.

3) The Superintendent, Central Prison, Salem.

4) The Public Prosecutor, High Court, Madras.

5) Mr.V.Jaya Prakash Narayanan, Government Advocate (Crl. Side), High Court, Madras.

6) The D.I.G. of Police, Chennai 4.

7) The Inspector of Police, NIB CID, Salem.

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