Crl.A.No.153 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 01.09.2022
DATED : 15.09.2022
CORAM
THE HON'BLE Mr.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.A.No.153 of 2021
Saroja .. Appellant
Vs
State Rep. by The Inspector of Police
NIB CID, Kancheepuram. .. Respondent
Prayer: This Criminal Appeal is filed under Section 374(2) of Code of
Criminal Procedure, 1973, to set aside the judgment passed against the
appellant / accused dated on 23.01.2021 passed in C.C.No.181 of 2018 by
the learned first Additional Special Court, Chennai (Cases dealing with
NDPS cases) and acquit him from all the charges.
For Appellant : Ms.A.Devaki
For Respondent : Mr.S.Vinoth Kumar
Government Advocate (Crl. Side)
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Crl.A.No.153 of 2021
JUDGMENT
On 25.09.2018, at about 5.00AM, when P.W.1 was on duty as the Inspector in NIB CID, he received a secret information from phone that the appellant / accused is smuggling Ganja by bus from Andra Pradesh for sale in Tamil Nadu. He reduced the said information into writing by about 5.15AM and informed the same to his superior officer P.W.5 and after getting permission from him, proceeded to the place of inspection at about 7.30A.M. at Elavur check post, at about 8.00AM, the appellant / accused was shown by the secret informant and she was carrying two wooden handled shopping bags. Since no other independent witness volunteered, by keeping the Police Personnel who accompanied the search party as witness, the appellant / accused was enquired whether the appellant can be searched by P.W.1 himself or whether she needs to be searched before a Gazetted Officer / Magistrate, to which the appellant / accused consented that she can be searched by P.W.1 itself. Therefore, she made a consent letter ready and after obtaining the signature of the appellant / accused, the appellant / accused handed over both the shopping bags and upon search of the said bags, it was found that each bag contained 11kgs of ganja. https://www.mhc.tn.gov.in/judis 2/16 Crl.A.No.153 of 2021
2. Thereafter, by drawing four samples (S1, S2, S3 and S4), two each from the respective bags, the contraband was seized and labelled as P.1 and P.2 respectively. Thereafter, P.W.1 proceeded to prepare the seizure mahazar and made formal arrest of the appellant / accused, informed her husband and thereafter proceeded to the police station and registered a case in Crime No.38 of 2018. She prepared the detailed report to the superior officer as per Section 57 of the NDPS Act. On the same day, she sent the accused for remand and submitted the file to the superior officer. Since the contraband was of commercial quantity, on 28.09.2018, as per the orders of P.W.5, she submitted the contraband before the Special Court along with the requisition letter for chemical analysis of the contraband. Thereafter, the investigation was completed and the charge sheet was laid before the Special Court. Thereupon, the case was taken on file as C.C.No.181 of 2018 and upon furnishing of the copies to the accused and on consideration of the materials, the Trial Court framed the charge under Section 8(c) r/w 20(b)(ii)(c) of the NDPS Act. Upon questioning, the appellant / accused denied the charge and stood trial.
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3. So as to bring home the charges, the Seizing Officer namely, Chitra was examined as P.W.1. One Pichamuthu, the Special Sub-Inspector who accompanied P.W.1 for the search was examined as P.W.2. One Meenakshi, the Assistant Deputy Director of Forensic Department, who conducted the analysis of the contraband and gave a finding that it was ganja was examined as P.W.3. One Sarthar, Grade II Constable, who also accompanied the search and stood as witness for seizure was examined as P.W.4. The Investigating Officer was examined as P.W.5. On behalf of the prosecution, Exhibit P.1 to Exhibit P.11 were marked and the samples of the contraband were produced as M.O.I to M.O.IV. Upon being questioned about the material evidences and incriminating circumstances on record, the appellant / accused denied the same as false. Thereafter, no evidence was let in on behalf of the defence. The Trial Court therefore proceeded to hear the learned Special Public Prosecutor on behalf of the prosecution and the learned counsel for the accused and by a judgment dated 3.01.2021, found the accused guilty of the charge and imposed a sentence to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs.1 lakh and in default of payment of fine, to undergo rigorous imprisonment for a period of one year. Aggrieved by which, the present appeal is filed before this https://www.mhc.tn.gov.in/judis 4/16 Crl.A.No.153 of 2021 Court.
4. Heard Ms.A.Devaki, learned counsel for the appellant and Mr.S.Vinoth Kumar, learned Government Advocate on behalf of the respondent and perused the material records of this case.
5. Learned counsel appearing on behalf of the appellant would submit that the personal examination of the accused was attempted and done in public, therefore, P.W.1 is not empowered to do the same and the same is illegal and therefore, the appellant / accused is entitled for acquittal. She would further submit that out of the four samples drawn, only S.1 and S.2 alone is produced and the other two samples, S.3 and S.4 were not produced before the Trial Court. She would further submit that, even though in this case, the alleged seizure of contraband took place on 25.09.2018, it was produced before the Trial court only on 28.09.2018 and therefore, there is a huge delay of more than seventy two hours in producing the contraband before the Trial court and there is no explanation whatsoever which is given by P.W.1 or P.W.5 in respect of the custody of the contraband during the said period and therefore, in the absence of the custody being duly entrusted https://www.mhc.tn.gov.in/judis 5/16 Crl.A.No.153 of 2021 to the Court or to the Malkhana or under the safe custody in police station, the authenticity of the contraband cannot be believed and therefore, the accused is entitled for the benefit of doubt.
6. Learned counsel would further submit that no medical examination was conducted after the arrest of the accused and therefore, it is violative of the mandatory guidelines. She would also rely upon the News item whereunder, the Government of Kerala has submitted to the Kerala High Court about the mandatory guidelines framed by it in respect of the medical examination pursuant to the directions of the National Human Rights Commission. She would submit that the investigation in this case is also not conducted by any officer in the rank of Deputy Superintendent of Police or more.
7. In support of her contentions, learned counsel also relied upon the judgment in Manjunath Lingaraj Hosamani vs. The State of Karnataka1 more specifically paragraph 9, in respect of the manner of despatch of the samples to the laboratory and submitted that the mandatory guidelines were not followed in the instant case. Learned counsel further relied upon the 1 MANU/KA/3478/2019 https://www.mhc.tn.gov.in/judis 6/16 Crl.A.No.153 of 2021 judgment in Mohan Lal vs State of Punjab2 more specifically paragraphs 8 to 13 to submit that under the NDPS Act, since the reverse onus placed on the accused, it must be ensured that the investigation was in a fair manner. In this case, she would submit that there was no independent witness for the seizure. There was no proper custody of the contraband. The mandatory safeguard under Section 50 was also not followed. Therefore, cumulatively, she would submit that when there is no fair investigation, the benefit of doubt should be given to the accused.
8. Per contra, learned Government Advocate (Crl. Side) would submit that the accused was intercepted at the check post and immediately she handed over the two wooden handled shopping bags with ganja contained in it and therefore, the contentions as if she was examined in public are of without any merits. He would submit that all the four samples were sent and the reverse of the Form 91 clearly depicts the same and the learned counsel is relying upon an improper photocopy, where, the backside of the Form 91 was missed to be photocopied. He would submit that this is a case that since at that point of time, learned Magistrates were not accepting the production of contraband, as this case is prior to the directions 2 2018 17 SCC 627 https://www.mhc.tn.gov.in/judis 7/16 Crl.A.No.153 of 2021 given to this Court in Dhanraj vs State (Crl.A.No.319 of 2012) and immediately upon papers relating to the remand reached the Special Court from the learned Judicial Magistrate before whom the accused was sent for remand, the contraband was produced on 28.09.2018 itself and was sent for analysis and absolutely no doubt whatsoever can be made out against the seizure or the production. The Trial Court has passed a detailed order on 03.11.2018 after weighing the contraband and handing it over to the Drug Disposal Committee for destruction and accordingly, the contraband was duly destructed and P.W.1 has spoken about the same. P.W.5 is in the rank of Deputy Superintendent of Police and therefore, the contention in this regard is unsustainable. He would further submit that since the contraband was immediately produced before the Trial Court on 28.09.2018 itself, it was not handed over to the Malkhana. Therefore, he would submit that the contentions raised by the learned counsel for the appellant are without substance and prayed for dismissal of the appeal.
9. I have considered the rival submissions made on either side and perused the material records of this case.
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10. In this case, the information received by P.W.1 is reduced into writing in Exhibit P.1 and the same was duly submitted to the superior officer and the said Special Report is marked as Exhibit P.6. Therefore, the mandatory provisions under Section 42 of the NDPS Act and the Provisions under Section 57 of the NDPS Act stood complied with. In this case, the contraband is recovered from the shopping bag and not from the person of the accused. Therefore, the compliance of Section 50 does not arise in this case, as the legal position is made clear by the Hon'ble Supreme Court of India in Dayalu Kashyap vs The State of Chhattisgarh3. As far as the compliance of the forwarding the contraband immediately to the superior officer or to the Malkhana is concerned, the contraband was seized on 25.09.2018, however, immediately on receipt of the papers from the learned Judicial Magistrate, it was produced before the Trial Court on 28.09.2018 itself and therefore, there is no any undue delay in this matter. P.W.1 has categorically answered that the contraband was in her custody only. Therefore, in this case, I hold that there is no violation of Section 52 of the NDPS Act and in any event, the same has not in any manner prejudiced the defence of the accused.
3 2022 Live Law (SC) 100 https://www.mhc.tn.gov.in/judis 9/16 Crl.A.No.153 of 2021
11. The contraband were duly weighed, sampled and sealed. The samples were duly analysed and the contraband was disposed as per the orders of the Court. The two witnesses, P.W.2 and P.W.4 were examined. Even though they were not independent witnesses, it is explained by the prosecution that at that point of time, nobody else near the check post volunteered to be a witness for the seizure. Therefore, from the receipt of secret information until search, the seizure, production and disposal of the contraband, I am of the view that the investigation is fair and proper in the instant case and therefore, once the prosecution has proved that it has complied with the mandatory provisions of the Act and that the investigation was done in a fair and proper manner, coupled with the production of the contraband and the chemical analysis report, then the prosecution has discharged its onus by establishing the foundational facts relating to the concious possession of the contraband by the accused.
12. Even, the weighing done by the Trial Court even after the removal of the samples, the Trial Court found that the first bag weighed about 10,900gms and the second bad weighed 10,750gms, which is more than 20kgs, being a commercial quantity. Thereafter, the defence have not https://www.mhc.tn.gov.in/judis 10/16 Crl.A.No.153 of 2021 in any manner let in any evidence or made any statement under Section 313 of the Code of Criminal Procedure nor cross examined by suggesting any defence version to rebut the presumption under Section 35 and 54 of the Act. Therefore, I am of the view that the charge against the appellant / accused is proved beyond reasonable doubt in the instant case.
13. As far as the contention of the learned counsel that the appellant / accused was searched in public place is concerned, the evidence is otherwise and there is no evidence of any search of person in the present case and she was intercepted in the check post, upon which, she handed over the bags containing the contraband and therefore, there is no any illegality in confronting the accused in the check post.
14. The argument that out of the four samples, only two was handed over is factually incorrect and this Court verified the original Form 91 from which it is clear that all the four samples were handed over to the Court. I have already held that there was no any undue delay in the instant case in producing the contraband.
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15. As far as the medical examination is concerned, there was no cross examination in the instant case that the accused was not subjected to medical examination before the remand. But, however, the arrest memo which is marked as Exhibit P.4 though records that the personal examination of the accused does not reveal any external injury or scar, it has not expressly mentioned that the appellant / accused was subjected to medical examination. Therefore, it is to be taken that the appellant / accused was not subjected to medical examination before the remand. But, however, the same by itself is not a ground for acquittal and will not be fatal to the case of the prosecution and especially when in this case, it was not alleged or suggested in the cross examination that there were physical torture for extracting confession etc, and therefore it cannot be held that any prejudice is caused to the accused on account thereof, especially when she was hale and healthy at the time of remand and even thereafter. Therefore, the said contention of the learned counsel for the appellant / accused stands rejected.
16. Similarly, the contention that the investigation is not done by Deputy Superintendent of Police or any person to the said rank, is also factually incorrect, as P.W.5, who is the Investigating Officer is of the rank https://www.mhc.tn.gov.in/judis 12/16 Crl.A.No.153 of 2021 of Assistant Commissioner / Deputy Superintendent of Police. Therefore, none of the contentions made by the learned counsel appearing for the appellant deserves acceptance by this Court and are accordingly rejected.
17. Therefore, I find the accused guilty for the offence under Section 8(c) r/w 20(b)(ii)(c) of the NDPS Act and confirm the conviction and sentence of ten years rigorous imprisonment and a fine of Rs.1 lakh which is a minimum punishment imposed by the Trial Court. However, considering the background of the accused and the plea of inability to pay the fine amount, considering the dictum of this Court in S.Edmand and another vs the State, rep by the Intelligence Officer, N.C.B.South Zonal Unit, Chennai (NCB E.No.48/1/08/2006-NCBMDS) (Crl.A.Nos.161 and 281 of 2014), N.Kandeepan and another vs The State, rep. by the Intelligence Officer, N.C.B, South Zone, Chennai, (Crl.A.Nos.528 of 2013 and 552 of 2012), T.Udayachandran @ Ramesh vs The State, rep. by the Intelligence Officer, V.Vettichelvan vs The Central rep. by the Senior Intelligence Officer, Directorate of Revenue Intelligence, Rajapandi and another Vs. The State, rep. by the Inspector of Police, Chennai (Crime No.91 of 2012), and also the judgment of the Apex Court in the case of https://www.mhc.tn.gov.in/judis 13/16 Crl.A.No.153 of 2021 Shahejadkhan Mahebubkhan Pathan Vs the State of Gujarat 4, I am of the view that the default sentence for non-payment of fine can be reduced from one year rigorous imprisonment to one month rigorous imprisonment. However, it is made clear that the default sentence shall be undergone after the substantive sentence is over.
18. Therefore, this criminal appeal is partly allowed on the following terms:
(i) The conviction of the appellant / accused for the offence under Section 8(c) r/w 20(b)(ii)(c) of the NDPS Act and the substantive sentence and fine imposed by the Trial court vide judgment dated 23.01.2021 in C.C.No.181 of 2018, are confirmed;
(ii) Only the default sentence for non-payment of fine is modified as one month rigorous imprisonment instead of one year rigorous imprisonment and it is made clear that the default sentence shall start to run after the completion of the substantive sentence of punishment imposed on the accused;
4 CDJ 2012 MHC 1209 https://www.mhc.tn.gov.in/judis 14/16 Crl.A.No.153 of 2021
(iii) The accused is entitled to set off the period already undergone and shall undergo the remaining period of sentence as per law.
Index:Yes/No 15.09.2022
Speaking/Non-Speaking Order
drm
To
1. The Inspector of Police
NIB CID, Kancheepuram.
2. The Additional Special Court
Chennai. (Cases dealing with NDPS cases)
3. The Public Prosecutor, High Court of Madras.
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Crl.A.No.153 of 2021
D.BHARATHA CHAKRAVARTHY, J.
drm
Crl.A.No.153 of 2021
15.09.2022
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