Mokkaithai vs State Rep By
2021 Latest Caselaw 16103 Mad

                                                                                  Crl.A.(MD)No.141 of 2016




                              BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT


                                                    DATED : 09.08.2021

                                                         CORAM:

                                   THE HONOURABLE MR.JUSTICE R.PONGIAPPAN

                                              Crl.A.(MD)No.141 of 2016



                     Mokkaithai                                    : Appellant/Sole Accused
                                                           Vs.

                     State rep by
                     The Inspector of Police,
                     NIB CID Wing,
                     Dindigul.
                     (In Crime No.137 of 2005)                    : Respondent/Complainant


                     PRAYER: This Criminal Appeal is filed under Section 374 of the Code of
                     Criminal Procedure, against the conviction and sentence passed by the
                     learned I Additional Special Judge for NDPS Act Cases, Madurai, in
                     C.C.No.186 of 2008, dated 18.04.2016.


                                    For Appellant            : Mr.S.T.Sasidharan Tamilkani
                                                               Legal Aid Counsel

                                    For Respondent           : Mr.E.Antony Sahaya Prabahar
                                                               Government Advocate (Crl. side)



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https://www.mhc.tn.gov.in/judis/
                                                                                    Crl.A.(MD)No.141 of 2016




                                                     JUDGMENT

The present appeal is directed against the conviction and sentence

dated 18.04.2016, passed in C.C.No.186 of 2008, on the file of the learned I

Additional Special Judge for NDPS Act cases, Madurai.

2. The appellant is the accused in C.C.No.186 of 2008. She stood

charged for the offence punishable under Section 8(c) read with 20(b)(ii)(B)

of the Narcotic Drugs and Psychotropic Substances Act [hereinafter referred

to as ''the NDPS Act]. She denied the charge and opted for trial. After full-

fledged trial, the Presiding Officer of the Special Court for NDPS Act cases

found the accused guilty under Section 8(c) read with 20(b)(ii)(B) of the

NDPS Act and sentenced to undergo rigorous imprisonment for one year

and to pay a fine of Rs.8,000/-, in default, to undergo simple imprisonment

for six months. Challenging the same, the accused is before this Court with

this Criminal Appeal.

3. The relevant facts of the case, which gave rise to filing of this

appeal are necessary to be recapitulated for the disposal of this appeal.

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(i) On 24.09.2005, while P.W.4 – Nambinarayanan, who is the Head

Constable, Palayamkottai Police Station, had been on duty in N.I.B.C.I.D.,

at Dindigul, received an intimation in respect of the movement of

contraband and recorded the same in Ex.P.6. After recording the same

before his superior officer, obtained permission for proceeding with further

action.

(ii) After obtaining permission as above, along with P.W.3 – Rekha,

PW4 reached the occurrence place and on 29.05.2005 around 07.15 a.m.,

upon the information given by the Informant, he secured the accused viz.,

Mokkathai and one Dharmaraj. After securing the accused as above, P.W.4

informed the accused the right guaranteed under Section 50 of the NDPS

Act in respect of the search made before the learned Judicial Magistrate or

before the Gazetted Officer. Since the accused did not want to exercise the

right, the reply given by the accused had been recorded under Ex.P.4

[Consent letter] and thereafter, P.W.3 – Rekha, who is the woman Head

Constable, searched the accused and found that the accused had been in

possession of 2.5 K.Gs. of Ganja. After seeing as above, both P.W.3 and

P.W.4 took 250 Gms. of sample and sealed the remaining contraband. The

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Mahazar, which was prepared for recovery of contraband, was marked as

Ex.P.5.

(iii) After completing the above formalities, P.W.4 along with

accused arrived at the Police Station and registered a case against the

accused in Crime Nos.137 and 138 of 2005 under Section 8(c) read with

20(b)(ii)(B) of the NDPS Act. After registration of the case, he handed over

the case records to P.W.5 – Veeramani along with recovered contraband for

further investigation.

(iv) P.W.5 – Veeramani, the then Inspector of Police, N.B.I.C.I.D.,

Sivagangai, on receipt of the F.I.R., took up the same for investigation. He

examined the accused and through Form-95, he produced the contraband

before the Court and sent requisition for chemical examination of the

contraband.

(v) P.W.2 – Krishnamoorthy, the then Sheristadar of the Judicial

Magistrate Court, Madurai, on 30.09.2005, received the contraband and

assigned R.P.R.No.1451 of 2005 and thereafter, in view of the request given

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by P.W.5, forwarded the sample to the Chemical Examiner and then P.W.1

– R.Meenakshi, Scientific Assistant, Forensic Science Department,

Madurai, on 30.09.2005 received the contraband along with the requisition

under Ex.P.2. On examination, she found that the sample contraband

contains cannabinoids (Ganja). In this regard, she issued report under

Ex.P.3.

(v) In continuation of investigation, P.W.5 examined the Scientific

Examiner, the Head Clerk and recorded their statements. Thereafter, he

came to the positive conclusion that the accused had committed the offence

under Section 8(c) read with 20(b)(ii)(B) of the NDPS Act and filed final

report accordingly.

4. Based on the above materials, the learned Trial Judge framed the

charge under Section 8(c) read with 20(b)(ii)(B) of the NDPS Act. The

accused denied the same as false and opted for trial. In order to prove their

case, on the side of prosecution, five witnesses have been examined as P.W.

1 to P.W.5 and 8 documents were marked as Exs.P.1 to P.8, besides 3

Material Objects [M.O.1 to M.O.3].

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5. Out of the said witnesses, P.W.1 – Meenakshi, the Scientific

Assistant attached with the Forensic Science Department, Madurai, speaks

about the receipt of samples and about the examination made. According to

her, the samples received for chemical examination is cannabinoids. P.W.2

– Krishnamoorthy claims that while he was working as Sheristadar in the

Chief Judicial Magistrate Court, Madurai, received the contraband and after

getting permission from the Presiding Officer of the Court, issued the

proceedings to the Chemical Examiner for examining the contraband.

6. P.W.3 to P.W.5, who are the Police Officers, speak about the

receipt of information from the Informant, reaching the occurrence place,

securing the accused, preparing the samples from the contraband and filing

of final report.

7. In respect of incriminating materials available as above, the

accused was examined under Section 313 Cr.P.C., for which, the accused

denied the same as false. However, she did not choose to examine any

witness or mark any document on her side.

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8. Heard Mr.S.T.Sasidharan Tamilkani, learned counsel appearing for

the appellant and Mr.E.Antony Sahaya Prabahar, learned Government

Advocate (Criminal side) appearing for the State and perused the materials

available on record.

9. The learned counsel appearing for the appellant submitted that in

respect of the date on which the alleged contraband was secured from the

accused, the witnesses examined on the side of prosecution gave

inconsistent evidence and therefore, it cannot be held that the alleged

occurrence had happened as alleged by the prosecution. He further

submitted that since the alleged occurrence had happened in the public

place, it is necessary for the prosecution to prove their case by examining

the independent witnesses, but in the present case, in order to establish the

recovery from the accused, except the Police Officers, none have been

examined. He further added that after recovery of the contraband, the same

has been produced before the trial Court after six days from the date of

recovery. In this regard, the Investigation Officer while at the time of

giving evidence as P.W.5 had admitted that there is no document available

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to show the possession of the contraband from the date of recovery till the

date on which the same was produced before the trial Court.

10. By submitting as above, the learned counsel appearing for the

appellant prayed to allow this appeal and set aside the conviction and

sentence.

11. Per contra, the learned Government Advocate (Criminal side)

appearing for the State contended that the lapses now indicated by the

learned counsel appearing for the appellant would not affect the case of the

prosecution in entirety. On the date of recovery itself, the contraband has

been produced before the Judicial Magistrate Court. Thereafter, due to the

reason that the contraband was returned by the learned Judicial Magistrate,

it was kept in the Police Station and therefore, it cannot be said that the

Investigation Officer has overruled the mandatory procedures, which

required for proving the offence alleged to be committed by the accused.

12. By considering the said submissions, now, on going through the

evidence given by P.W.3, who alleged to be the witness for recovery, has

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stated in her evidence as the search was conducted on 25.09.2005 at 06.00

a.m. On the other hand, P.W.4, who is one of the Police Officers recovered

the contraband from the accused, has stated in his evidence as on

24.09.2005 while he was working as Head Constable, N.I.B.C.I.D.,

Dindigul, received an information under Ex.P.6 and thereafter, he obtained

permission from the Superior Officers for conducting raid. Now, on going

through the said Ex.P.6, it seems that he has received information on

24.09.2005 and afterwards, he prepared a Mahazar on the same day at 08.15

a.m., for the recovery of contraband. Therefore, a conjoint reading of the

evidence given by P.W.3 with the date found in the documents, i.e., Exs.P.5

and P.6, reveal the fact that in respect of the date of recovery, P.W.3 gave a

false evidence. Therefore, the evidence given by P.W.3 in respect of the

date of occurrence would not affect the case of the prosecution in any way.

Therefore, the first submission made by the learned counsel appearing for

the appellant in respect of the date of occurrence is not having any much

force.

13. In respect of the second submission made by the learned counsel

appearing for the appellant, it is true, before the trial Court in order to prove

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their case, on the side of the prosecution, except the Police Officers and the

Officers, who attached with the Court and Forensic Science Department,

none have been examined. In the said circumstances, in respect of the

occurrence place, P.W.4 has stated in his cross-examination as he secured

the accused in the Bus Stand. Therefore, it is easy for them to request the

public to stand as a witness for recovery of contraband. But, in this regard,

the whole evidence given by P.W.4 reveals the fact that he has not requested

the public to stand as a witness. However, in similar situation, in the case of

Surinder Kumar Vs. State of Punjab reported in 2020 (2) SCC 563, our

Hon'ble Apex Court has held as follows:-

''15.The judgment in Jarnail Singh v. State of Punjab [Jarnail Singh v. State of Punjab, (2011) 3 SCC 521 : (2011) 1 SCC (Cri) 1191], relied on by the counsel for the respondent State also supports the case of the prosecution. In the aforesaid judgment, this Court has held that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that the accused was falsely implicated. The evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status.''

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Therefore, applying the ratio laid down in Paragraph 15 of the above

referred judgment in the case on hand also, though P.W.4 has not given any

evidence in respect of the request made before the public for standing as a

witness, the same alone is not sufficient to discard the evidence given by

P.W.3 and P.W.4. Therefore, I am of the opinion that non-examination of

independent witness alone is not sufficient to hold that the entire story put

forth by the prosecution is a false one.

14. The next submission of the appellant's counsel is that before

proceeding for search, the information received by P.W.4 has not been

recorded and therefore, the said act committed by P.W.4 is violative of

Section 42 of the NDPS Act and hence, on that score alone, the accused is

entitled to the relief of acquittal.

15. In this aspect, on going through the evidence given by P.W.4,

who has received the information, has stated in his chief-examination as on

24.09.2005 while he had been working as Head Constable in N.I.B.C.I.D. at

Dindigul, received an information from the Informant and thereafter, after

recording the same, the same has been placed before the Inspector of Police

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and permission was obtained. In order to substantiate the same, he has

produced the information received by him and the permission granted by the

Superior Officer as Ex.P.6.

16. Though the said evidence is available in terms of Section 42 of

the NDPS Act, in his cross-examination, he has stated that at the time of

receipt of information, the Inspector of Police was not available in the

Police Station. He has further stated that the information received by him is

not recorded in the G.D. file. Further, his evidence is made clear that he had

received the information at 06.00 a.m. and reached the occurrence place at

06.30 a.m. Therefore, it is obvious that during the time when he received

the information, the person, who granted permission, is not available in the

Police Station and the said circumstance creates a doubt whether he has

obtained permission from the superior officers before proceeding for search,

more than that, in Ex.P.6, which was preferred in terms of Section 42 of the

NDPS Act, it seems that somebody signed on behalf of the Inspector of

Police. In this regard, the prosecution has not laid clear evidence as to when

the said document has been prepared. Therefore, in respect of preparation

of Ex.P.4, the evidence given by P.W.4 creates a doubt whether Section 42

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of NDPS Act has been complied with as per the requirement of the said

Section. Further, it is admitted fact that after recovering the contraband on

24.09.2005, the same has been produced before the learned Judicial

Magistrate on 26.09.2005. Subsequent to that, only on 30.09.2005, the

same has been produced before the trial Court. In respect of possession of

contraband for the period between 26.09.2005 and 30.09.2005, P.W.5 gave

evidence as he has not having any document to show under whose

possession the contraband was available from 26.09.2005 to 30.09.2005,

which shows that the prosecution has failed to prove the fact that the

contraband was available from the custody of the particular person.

Accordingly, the Investigation Officer violated Section 55 of the NDPS Act.

Furthermore, in the Mahazar prepared by P.W.4, there is no endorsement to

show that the property was produced before the learned Magistrate

immediately on 26.09.2005 itself. Therefore, in contravention of Sections

42 and 55 of the NDPS Act, I am of the opinion that the prosecution failed

to prove its case beyond reasonable doubt and therefore, it is a fit case for

ordering acquittal.

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17. In the result, this Criminal Appeal is allowed and the conviction

and sentence dated 18.04.2016, imposed in C.C.No.186 of 2008, by the

learned I Additional Special Judge for NDPS Act Cases, Madurai, is set

aside and the appellant is acquitted from the charges. The fine amount, if

any, paid by her shall be refunded to her. Bail bond, if any, executed by the

appellant shall stand cancelled.

09.08.2021 Speaking/Non-speaking order Index : Yes / No Internet: Yes smn2

https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.141 of 2016

To

1.The I Additional Special Judge for NDPS Act Cases, Madurai.

2.The Inspector of Police, NIB CID Wing, Dindigul.

3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.141 of 2016

R.PONGIAPPAN, J.

smn2

Judgment in Criminal Appeal(MD)No.141 of 2016

09.08.2021

https://www.mhc.tn.gov.in/judis/