CRL A/261/2012 of SURESH Vs THE INSPECTOR OF POLICE on 28 December 2018

The Appellant herein/Accused namely Suresh S/O Murugesan wasdirected to be released on bail by order of this Court dated23.04.2012 and made in MCOP No.1 of 2012 in Crl.A.No.261/12.

IN THE HIGH COURT OF JUDICATURE AT MADRASReserved on : 28.03.2018

Pronounced on : 28.12.2018

CORAMTHE HONOURABLE MR.JUSTICE R. SURESH KUMARCrl.A.No.261 of 2012

Suresh ... Appellant / AccusedVs

The Inspector of PoliceC1 Flower Bazaar Police Station,Chennai - 600 001. ... Respondent / Complainant Criminal Appeal filed under Section 374(2) r/w Section 36Bof the NDPS Act, 1985, to set aside the conviction and sentencerendered by the Principal Special Judge for NDPS Act, Chennai,dated 21.02.2012 in C.C.No.63/2009 in Cr.No.890 of 2009 for theoffence under Section 8(c) r/w 20(b) (ii) (B) of NDPS Act andacquit the accused.

For Respondent : Mr.T.Shanmuga Rajeshwaran Govt. Advocate (Crl. side)

This Appeal has been preferred against the Judgment andconviction made by the Principal Special Judge for NDPS Act atChennai, dated 21.02.2012 made in C.C.No.63 of 2009.

2. The case of the prosecution was that, on 09.11.2009 atabout 12 hours (12 Noon) based on the secret information aboutthe illegal custody of dry ganja, after getting priorpermission, the Sub Inspector of Police (P.W.1) and his policeteam attached to C1 Flower Bazaar Police Station went to thespot, i.e., near Ambedkar Nagar Telephone office, Muthusamy

Road, where the accused was identified by the informer. ThusP.W.1 approached the accused and informed him about his right tobe searched / examined in front of the concerned Magistrate orGazetted Officer as per Section 50(1) of the NDPS Act andaccordingly, followed all the procedures.

3. Since the accused did not choose to be produced beforethe Magistrate and he had shown willingness to be searched byP.W.1 himself, the P.W.1 searched the accused and found that,the accused Suresh was in illegal possession of dry ganja of 513pockets, each will carry 2gm dry ganja without proper permission/ approval from the concerned authorities. Immediately the saidcontraband was seized under the seizure mahazar in the presenceof witnesses, namely one Sethuraman, Head Constable, i.e., P.W.2and another Head Constable Vilvanathan and had taken 13 samplepockets for chemical analysis and the accused was arrested atabout 13.30 hours. Along with seized materials, he was broughtto the police station at about 14.00 hours. Thereafter a specialreport was submitted by the P.W.1 and a case was registered inC1 Flower Bazaar Police Station in Crime No.890 of 2009 underSection 8(c) r/w 20 (b) of NDPS Act against the accused andthereafter, the case was handed over to the P.W.4, Inspector ofPolice, who after having investigated the same sent the accusedto the VIII Metropolitan Magistrate Court, George Town, Chennai,where the accused was remanded to judicial custody.

4. Thereafter during the course of investigation, P.W.4examined the witnesses and recorded the statements and also sentthe samples dry ganja to the Forensic Science Department forchemical analysis and thereafter received the report. Aftercompletion of investigation, the P.W.4 altered the Section in to8(c) r/w 20(b) (ii) (B) of NDPS Act and final charge sheet hadbeen filed against the accused before the Special Court for ECAct Cases, Chennai and the same was taken on file vide C.C.No.63of 2009 on 22.12.2009.

5. On behalf of the prosecution, 4 witnesses were examined,i.e., P.W.1 to P.W.4, 8 Exhibits were marked, i.e., Ex.P.1 toEx.P.8 and 2 Material Objects were produced.

6. The trial Court after having tried the matter, has givenits Judgment, dated 21.02.2012, whereby the trial Court foundthe accused guilty of the offence punishable under Section 8 (c)r/w 20 (b) (ii) (B) of NDPS Act and accordingly, convicted theaccused and sentenced him to undergo 2 years RI with fine ofRs.15,000/-, in default 3 months RI was also imposed. As againstthe said Judgment and conviction, the accused preferred thisAppeal.

7. I have heard Mr.T.S.Sasikumar, learned counsel appearingfor the appellant / accused and Mr.T.Shanmuga Rajeswaran,learned Government Advocate (Crl. side) appearing for therespondent / prosecution.

8. It is the case of the prosecution that, on 09.11.2009 atabout 12 Noon, the P.W.1, Sub Inspector of Police, while he wason duty had received a secret information from the informerstating that, the accused had been in possession of ganja at thegiven address and therefore he alerted the police party to actupon. Thereafter the P.W.1 recorded the said information andsought for the permission from P.W.4, which the P.W.4 had given.Thereafter the P.W.1 along with P.W.2 and another Head Constablerushed to the spot in the police vehicle, where they found theaccused having a black colour plastic bag and on seeing them,when he tried to flee, he was caught by the police party andthereafter the P.W.1 claimed to have informed to the accusedthat, he has got right to be searched in front of the JudicialMagistrate or a Gazetted Officer. However, the accused hadagreed to be searched by the P.W.1, Sub Inspector of Policehimself. Accordingly, the P.W.1 searched the accused and foundthat, the accused was having 513 numbers of small pockets inlight green colour and when they opened the pocket, they foundthat, it appears to be ganja. Therefore they weighed the pocketsand thereafter under seizure mahazar, they seized the contrabandand by giving the arrest memo, they also arrested the accusedand along with the contraband the accused was brought to thepolice station at about 2 p.m and thereafter FIR was registeredand special report was prepared. Thereafter the investigationwas handed over to the P.W.4, who took the investigation andafter having sent the accused for remand to the concernedMagistrate Court, the P.W.4 claimed that, he had sent thecontraband also under Form No.95 to the learned Magistrate onthe same day same time.

9. With regard to these theory of the prosecution and insupport of the same, there were four witnesses examined by theprosecution. The P.W.1, Sub Inspector of Police has deposed inhis examination that, at exactly 12 Noon on 09.11.2009, hereceived the secret information from his informer, which hasbeen recorded in Ex.P.1, where the Inspector of Police, i.e.,P.W.4 had given permission to P.W.1 and his police party to rushto the spot and act upon.

10. In his cross-examination, the P.W.1 has deposed asfollows :

"FWf;F tprhuiz - M$h; vjphpapd; kPJ v';fs; fhty;epiyaj;jpy; ,e;j tHf;if jtpu ntW ve;j tHf;Fk; fpilahJ

11. The P.W.1 states that, the police team started from thepolice station after 20 minutes from the receipt of the secretinformation, which means that, they started by 12.20 p.m. P.W.1had further stated that, each and every pocket has not beenopened and weighed, but without opening each of the pocket, itwas weighed. He has further stated that, all the seizedcontraband pockets had been combinely weighed (ifg;gw;wg;gl;l tHf;Fbrhj;ij bkhj;jkhf bghl;ls';fSld; jhd; vil nghl;nlhk;)/ Whereas the P.W.2Head Constable in his cross-examination has stated as follows :

"FWf;F tprhuiz ? ehd; rk;gt njjpapy; jiyik fhtyh;bghWg;gpy; ,Ue;njd;/ jfty; tUk; nghJ ,d;!;bgf;lh;nuhe;J gzpapy; ,Ue;jhh;/ cjtp Ma;thsh; vd;id rk;gt ,lj;jpw;F miHj;jhh;/ fhty; epiyaj;jpypUe;J rk;gt ,lj;jpw;Ffhty; epiya thfdj;jpy; te;njhk;/ eh';fs; rk;gt ,lj;jpw;F

nghFk;nghnj rk;gt ,lj;jpy; ,Ue;jhh;/ ,e;j juhir cjtpMa;thsh; epiyaj;jpypUe;J bfhz;L te;jhh;/ xU bghl;lyj;ijgphpj;J vil nghl;nlhk; 2 fpuhk;/ gpwF vy;yhk; bghl;ly';fisa[k; vilnghl;L ghh;j;njhk; 1/026 fpnyh fpuhk; ,Ue;jJ/ khjphpbghl;ly';fs; 13 vil nghl;L vLj;njhk;/ 513 bghl;ly';fisa[k; gphpj;J f";rhit 13 vil nghl;L vLj;njhk;/ 513bghl;ly';fisa[k; gphpj;J f";rhit nrh;j;J mjpypUe;J 13bghl;ly';fis khjphpf;F vLj;njhk;/ kf$h; rk;gt ,lj;jpy;vGjg;gl;lJ/ rk;gt ,lj;jpy; kfrh; kw;Wk; nrhjid mwptpg;g[ vGjpndhk;/ ifjp Fwpg;ghiz rk;gt ,lj;jpnyna jahh;bra;njhk;/ Kjy; jfty; mwpf;if epiyaj;jpy; jahhpf;fg;gl;LFw;w vz; bfhLf;fg;gl;Ls;sJ/ jftypd; bgahpy; rk;gt ,lj;jpw;F nghftpy;iy vd;why; mJ rhpay;y/ rk;gt ,lkhdJf";rh tpw;gJ gw;wpa tptu';fis nfl;Fk; bghGJ brhy;ykWj;j fhuzj;jpdhy; ,e;j tHf;F mth; kPJ bgha;ahfbjhlug;gl;lJ vd;why; mJ rhpay;y/"

12. The P.W.1 and P.W.2, who are the only witnesses explainabout the entire occurrence has stated statements in the cross-examination, which are completely contradictory to each other asP.W.1 and P.W.2 has not corroborated each other.

13. That apart the P.W.1 states that, he did not know fromwhere they brought the balance (juhir ve;j vilapy; th';fp te;jhh;fs; vd;Wvdf;F bjhpahJ), whereas the P.W.2 says the balance was brought byP.W.1, Sub Inspector of Police from the police station (,e;j juhircjtp Ma;thsh; epiyaj;jpypUe;J bfhz;L te;jhh;). There is completecontradiction between P.W.1 and P.W.2 in this regard as to bywhom and from where the balance was brought in.

14. The further contradiction to be noted is that, the P.W.2in his cross-examination has stated that, at the time of receiptof secret information, the Inspector of Police, i.e., P.W.4 wasin rounds (jfty; tUk; nghJ ,d;!;bgf;lh; nuhe;J gzpapy; ,Ue;jhh;). However,the P.W.4, the Inspector of Police in his cross-examination hasstated that, when the Sub Inspector received the information, Iwas at the station (cjtp Ma;thsUf;F jfty; te;j nghJ ehd; epiyaj;jpy; ,Ue;njd;).

15. It is pertinent to be noted that, there is absolutely noindependent witnesses on the side of the prosecution, except theP.W.1, Sub Inspector of Police, P.W.2, Head Constable, P.W.4,Inspector of Police, i.e., the Investigating Officer.

16. In this regard, it is the case of the prosecution that,at the time of occurrence or before search and seizure, whenthey called for public to be witnesses, no one has come forward.

However not even single person's name from the public has beenmentioned by the prosecution to state that, they made an attemptto invite the public to be witnesses. Therefore it was a merestatement on the side of the prosecution that, though theyinvited the public to be witnesses, no one turned up.

17. Whether the prosecution had really seized 513 pockets ofcontrabands and whether they really weighed each of the pocketto measure the weight is a question to be probed.

18. In this context, the P.W.1, Sub Inspector of Police saysthat, without opening each of the pocket, they weighed thepockets, whereas the P.W.2, Head Constable says that, all the513 pockets had been opened and the contraband had been puttogether, from where they prepared 13 pockets for sample.Whereas in this context, when this was specifically raised bythe defence side before the trial Court, the learned trial CourtJudge has given his reason rejecting the defence theory, whichreads as follows :

"Mdhy;. vjphp jug;gpy; thjpl;lnghJ. 13 bghl;ly';fs; kl;Lnkurhad ghpnrhjidf;F mDg;gg;gl;Ls;sJ vd;Wk;. kPjpapUe;j 500bghl;ly';fis mDg;ghj fhuzj;jhy;. mjpy; f";rh jhd; ,Ue;jJ vd;W Kot[ bra;tjw;F tha;g;g[fs; ,y;iy vd;Wk;.mjw;nfw;wthW jPh;khdk; bra;a ntz;Lk; vd;Wk;thjplg;gl;lJ/ Mdhy;. me;j thjk; Vw;Wg;bfhs;sf;Roajhf ,y;iy/ mrh1.2 ,UtUk; rhl;rpaj;jpy;. midj;J bghl;ly';fisa[k; gphpj;Jg;ghh;j;jjpy; f";rh vd;w nghijg; bghUs; ,Ue;jjhft[k;. mjpy;13 bghl;ly';fspypUe;J 26 fpuhk; vila[s;s nghijg;bghUisjdpahf khjphpf;F vLj;J. urhad ghpnrhjidf;F mDg;gpajhfbjspthf Twpa[s;shh;fs;/"

19. When it was the statement of P.W.1 that, they weighedall the 513 pockets without opening it, it was the statement ofthe P.W.2, Head Constable that, they opened all the 513 pocketsand put the contraband together and thereafter they prepared 13pockets of contraband for sample for the purpose of chemicalanalysis. Whereas the learned Judge has stated in his reasoningin the Judgment impugned that, the P.W.1 and P.W.2 both in theirdeposition had stated that, all the pockets were opened, wherethey found that, the contraband ganja was available and theytook 13 pockets consisting of 26 grams, i.e., 2 grams each assample for the purpose of chemical analysis. The learned Judgehas neither taken the version of P.W.1 nor taken the version ofP.W.2 and in fact, he has taken a version mixing the version ofP.W.1 and P.W.2 in this regard and has given his own version inthe Judgment impugned in this context, which is completelyerroneous.

20. The secret information had come to the P.W.1 at 12 Noon,which was recorded in writing under Ex.P.1. At that time,according to P.W.1, the P.W.4 Inspector of Police was not instation, only thereafter he could have come to the station andthen only he had given permission to the police team to rush tothe spot and that is the reason why it has been stated by theP.W.1 that, they left police station after 20 minutes fromreceipt of the information. Assuming that, the team left at12.20 p.m, they would have reached the spot by 12.30 p.m, whereafter caught the accused and after explaining the right of theaccused under Section 50(1) of the NDPS Act and after invitingthe public witness, which they refused, after getting theconcurrence of the accused to be searched by the P.W.1 himselfand thereafter search would have been taken place and afterfound the contraband consisting of 513 pockets and according tothem, since each of the pocket had been weighed, every pocketshould have been put in the balance and after noting the weightonly, they could have taken the other pocket. Therefore forweighing the 513 pockets one by one, definitely it would havetaken minimum of at least 250 minutes and thereafter onlyseizure mahazar could have been prepared and arrest memo couldhave been given to the accused and then only he would have beenarrested. However the prosecution theory is that, every thingwas happened between 12.30 to 1.30 p.m, as by 1.30 p.m, afterseizure of contraband, taking the measurement, the accused wasarrested and in fact he was brought to the station by 2 p.m.

21. All these acts could not have been taken place within aspan of one hour, if really they have measured all the 513pockets of contraband as they claimed. Therefore it isthoroughly impossible or hardly to believe the theory ofprosecution in this context.

22. It is the further case of the prosecution, as has beendeposed by P.W.4, Investigating Officer that, after having sentthe accused for remand to the concerned Magistrate Court, theseized contraband had been also sent to the Court under FormNo.95. However, no such Form No.95 had been marked before thetrial Court and this aspect has not been questioned by the trialCourt.

23. In the absence of Form No.95, it is highly doubtfulwhether the contraband had been accompanied along with FormNo.95 on the same day of arrest and remand of the accused and inthis context, the law has been well settled that, delay inproducing the contraband would vitiate the prosecution caseunder NDPS Act.

24. In this context, though number of decisions has beencited by the learned counsel appearing for the appellant /accused, one such decision reported in 1993 Supp (3) SCC 665 inthe matter of Valsala v. State of Kerala can be pressed intoservice, where the Hon'ble Supreme Court has made the followingfindings and observation :

"4. We have seen the report of the ChemicalExaminer and there no doubt it is mentionedthat one sealed parcel was receivedcontaining a powder and it was analysed to beBrown Sugar. But from the records it is clearand it is also noted by both the courts belowthat the seized article was produced in thecourt only on 14.1.88 i.e. after a period ofmore than three months and there is noevidence whatsoever at all to show with whomthe seized article was lying and evenassuming that it was in the custody ofP.W.6,the Officer-in-charge of the PoliceStation who seized it, there is again nothingto show whether it was sealed and kept there.The learned Counsel for the State no doubtargued that the provisions ofSection 55ofthe Act are not mandatory but only directory.We need not go into this legal question inthis case. Suffice it to say that the articleseized appears to have been not kept inproper custody and proper form so that thecourt can be sure that what was seized onlywas sent to the Chemical Examiner. There is abig gap and an important missing link. In themahazar Ex.P.2 which is immediately said tohave been prepared, there is nothingmentioned as to under whose custody it waskept after seizure. Unfortunately for theprosecution even P.W.6 does not say that hecontinued to keep it in his custody underseal till it was produced in the court on14.1.88. The evidence given by P.W.6 PoliceSub-Inspector, who seized the article isabsolutely silent as to what he did with theseized article till it was produced in thecourt. As a matter of fact he did not produceit in the court. P.W.3, A.S.I. is supposed tohave produced the same in the court. ButP.W.3 does not say anything about this. It isonly P.W.7. the Circle Inspector who comesinto the picture at a later date, who admitted in the cross-examination that theseized article was sent by P.W.3 (A.S.I.) tothe court and P.W.7 in his cross-examinationfurther admitted that he did not even see ifthe recovered material object was sealed butstill he claims that he made the necessaryapplication for sending the material objectfor chemical examination and it is onlythrough P.W.7 that the Chemical Examiner'sReport is marked. P.W.7 further admitted thathe did not even know when it reached thecourt We are constrained to say that theinvestigation in this case has beenperfunctory and on important aspects theevidence of the concerned officers is highlydiscrepant and unconvincing and does notthrow much light. Therefore the evidenceadduced is wholly insufficient to concludethat what was seized from the appellant alonewas sent to the Chemical Examiner. Thoughthis is purely a question of fact but this isan important link. Both the courts below havenot examined this aspect in a properperspective. No doubt the trafficking innarcotic drugs is a menace to the society butin the absence of satisfactory proof, thecourts can not convict.5. In the result the judgment of the learnedSessions Judge as affirmed by the High Courtis set aside and the convictions andsentences passed against the appellant arealso set aside. If the appellant is in jail,she shall be set at liberty forthwith. Theappeal is accordingly allowed."

25. Here in the case in hand, the very Form No.95 itself isin absence, as the same has not been shown as an Exhibit.Therefore it can be presumed that, there had been no productionof contraband under Form No.95 to the concerned Magistrate Courton the same date.

26. When these contradictions are found from the evidencesof the prosecution and in absence of any independent witnessfrom the prosecution side and there is no mentioning about thename of one or two public, who are attempted to be the witness,who refused and also in the absence of Form No.95, which was notproduced before the trial Court by the prosecution, withoutappreciating these lacuna or flaw on the part of theprosecution, the learned Judge in the trial Court has accepted the theory of prosecution and has convicted the appellant /accused.

27. However when this Court applied its mind on the factsand circumstances of the case as well as the prosecution theoryand the supporting evidence produced on the side of theprosecution, has come to a irresistible conclusion that, therehas been a complete flaw on the side of the prosecution tosubstantiate their case by giving cogent and believableevidence. Therefore this Court has no hesitation to come to aconclusion that, the prosecution has not proved their casebeyond reasonable doubt. Hence, by giving the benefit of doubt,this Court is of the considered view that, the accused cannot befound guilty for the alleged offence. Therefore he is entitledto get acquittal.

28. In the result, the Judgment and conviction made by thetrial Court in C.C.No.63 of 2009, dated 21.02.2012 on the fileof the Principal Special Judge for NDPS Act, Chennai, is herebyset aside and the accused therefore is set at liberty. If thereis any bail bond executed by the accused, the same shall bedischarged forthwith. The fine amount, if any paid by theappellant shall be refunded. Hence the Criminal Appeal isallowed accordingly.

Sd/-

Assistant Registrar(CS III)

//True Copy//

Sub Assistant Registrar

tsvn

To

1. The Principal Special Judge for NDPS Act Chennai.Chennai.

2. The Inspector of PoliceC1 Flower Bazaar Police Station,Chennai - 600 001. C1 Flower Bazaar Police Station,Chennai - 600 001.

3. The Public Prosecutor

High Court of Madras, Chennai.

Copy to

The Section Officer,

Criminal Section, High Court, Madras-104.

Crl.A.No.261 of 2012

sv[co]srg 30/01/2019