Madras High Court
Jayakumar vs State: Represented By on 10 August, 2021
Crl.A(MD)No.338 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 10.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
Crl.A(MD)No.338 of 2015
Jayakumar : Appellant/Accused
Vs.
State: Represented by
Inspector of Police-NIB-CID,
Crime No.79 of 2005,
Madurai District. : Respondent/Complainant
PRAYER: The Criminal Appeal is filed under Section 374(2) of the Code
of Criminal Procedure, to set aside the conviction and sentence, dated
21.09.2015 in C.C.No.45 of 2006 on the file of the Principal Additional
Special Judge for NDPS Act Cases, Madurai and acquit the appellant.
For appellant : Mr.S.Muthumalai Raja
for Mr.R.John Sathyan
For Respondent : Mr.M.Muthumanikkam
Counsel for Government of
Tamil Nadu (Crl.side)
1/12
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Crl.A(MD)No.338 of 2015
JUDGMENT
The present appeal is directed against the conviction and sentence,
dated 21.09.2015, made in C.C.No.45 of 2006, on the file of the
Principal Additional Special Judge for NDPS Act Cases, Madurai.
2. The appellant is the sole accused. He stood charged for the
offences punishable under Sections 8(c ) r/w 18(c ) of Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred as “NDPS Act”).
The accused denied the charges as false and opted for trial. Therefore, he
was put on trial on the charges.
3. After full-fledged trial, the learned Principal Additional Special
Judge for NDPS Act Cases, Madurai, came to the conclusion that the
appellant was found guilty for the offences under Sections 8(c ) r/w Section
18(c ) of NDPS Act and accordingly, the appellant was convicted and
sentenced to undergo Rigorous Imprisonment for 3 years and to pay a fine
of Rs.5,000/-, in default, to undergo Rigorous Imprisonment for 12 months.
Challenging the said conviction and sentence, the appellant is before this
Court, by way of filing the present Criminal Appeal.
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Crl.A(MD)No.338 of 2015
4. The relevant facts of the case, which gave rise to the filing of
this appeal are necessary to be recapitulated for the disposal of this appeal:-
(i) P.W.4-R.Yogamurali, the then Head Constable, NIB-CID,
Madurai, on 02.08.2005, around 05.00 a.m., received an information in
respect to the transportation of the Opium. He recorded the said
information in a General Diary and informed the same to the Inspector of
Police. After getting the advise from the Inspector of Police, he along with
P.W.3-Ravi and one Govindaraj, the then Head Constable, reached the
occurrence place. Around 06.30 a.m., on information given by the
informant, they have secured the accused and informed that they are the
Police Officers. The accused was duly informed about the right having by
him in respect of the search overcome. For which, the accused refused to
utilize the right having by him, further, he has given the consent to P.W.4
for conducting search. After giving consent letter under Ex.P.6, the accused
on his own accord produced the Rexin Blue Colour checked Bag to the
police for search and it contains 1.600 Kilo Grams of Opium and the
accused gave a confession statement stating that he has to go to
Rameswaram, which was recorded in the presence of police witnesses.
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Crl.A(MD)No.338 of 2015
(ii) On verification, it was found that the possession of contraband
by the accused is having a character of Opium. Immediately, after the
search, P.W.4 by using the scale weighed the contraband and found that the
weight of the contraband is about 1.600 Kilo Grams. He collected 10 grams
of Opium in two pockets for chemical examination (Totally 20 grams). The
samples of the contraband were sealed by following the procedure and
named as S1 & S2. Further, he had affixed the label to the remaining
contraband. P.W.4 prepared Ex.P.4-Seizure Mahazar and through which, he
recovered the contraband along with Rs.170/-. He prepared a Arrest Memo
under Section 52 of NDPS Act. Further, under Section 57 of the NDPS Act,
he prepared a detailed report.
(iii) Consequently, along with the accused and the contraband, he
reached the police Station and submitted the detailed report to P.W.5-
Thambidurai for initiating action against the accused/appellant in respect to
the possession of Opium.
(iv) P.W.5-Thambidurai, the then Inspector of Police, NIB-CID,
on 02.08.2005 around 9.00 a.m., received the detailed report from P.W.4
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Crl.A(MD)No.338 of 2015
along with the recovered materials. Thereafter, he registered a case against
the accused in Cr.No.79 of 20015 for the offences punishable under
Sections 8(c ) r/w Section 18 (c ) of NDPS Act. The printed FIR has been
marked as Ex.P9. Vide Form-95, he produced the contraband to the Court,
which is having jurisdiction to try this type of offence. Under Ex.P1, he
submitted an application to the Presiding Officer of the Court with a request
to forward the contraband for chemical examination. On considering the
request of P.W.5, the Court issued a letter, dated 02.08.2005 to the
Chemical examination for chemically examining the samples, which were
recovered during the time of search.
(v) On receipt of the said reference, P.W.1-Banumathi, the
Scientific Officer attached with Forensic Science Department, Chennai
received the sample contraband and on examination, she found the contents
of the sample as Opium. In this regard, she issued a report under Ex.P3.
(vi) In continuation of the investigation, P.W.4 examined the
Scientific Assistant and recorded his statement. Finally, he came to a
positive conclusion that the accused herein committed the offence
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Crl.A(MD)No.338 of 2015
punishable under Section 8(c ) r/w Section 18(c ) of NDPS Act and filed a
final report accordingly.
5. Based on the above materials, the trial Court framed the
charges against the accused under Section 8(c ) r/w Section 18(c ) of NDPS
Act. The accused denied the charges and opted for trial. Therefore, he was
put on trial.
6. During the course of trial proceedings, in order to prove their
case, on the side of the prosecution, 5 witnesses have been examined as
PW1 to PW5 and 9 documents were exhibited as Ex.P1 to Ex.P9, besides,
two Material Objects [M.O.1 and M.O.2].
7. Out of the said witnesses, P.W.1-the Assistant of the Forensic
Science Department speaks about the details of chemical examination
conducted over the sample contraband, which is forwarded from the Court.
(i) P.W.2-Mahalakshmi, the then Head Clerk of the Special
District and Sessions Court for NDPS Act Cases claims that on 02.08.2005
she received the recovered contraband and assigned with serial number as
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Crl.A(MD)No.338 of 2015
RPR No.1131/2005. She has further stated that on the same day, the
contraband was forwarded to the Forensic Science Department with a
request for chemically examine the same.
(ii) P.Ws.3 to 5 are the Police Officers, speaks about the receipt of
information, details of search made on the accused, recovery of contraband
and about the filing of final report.
8. When the above incriminating materials were put to the
accused under Section 313 Cr.P.C. the accused denied the same as false.
However, he did not chose to examine any witness nor mark any document
on his side.
9. Having considered the materials placed before the trial Court,
the learned Principal Additional Special Judge for NDPS Act Cases,
Madurai came to the conclusion that the accused was found guilty for the
offence under Section 8(c ) r/w 18(c ) of NDPS Act and sentenced him as
stated above. Aggrieved by the said conviction and sentence, the appellant
is before this Court with this appeal.
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Crl.A(MD)No.338 of 2015
10. I have heard Mr.S.Muthumalai Raja, learned counsel
appearing for the appellant and Mr.M.Muthumanikkam, Counsel for the
Government of Tamil Nadu. I have also perused the records carefully.
11. The first and foremost contention raised by the learned
counsel appearing for the appellant in this appeal is that, while at the time of
collecting the samples from the recovered contraband, the police officer,
who investigate the case, has not followed the circular issued in this regard.
Therefore, lapse found on the part of the prosecution is a best ground for
acquitting the accused.
12. In order to substantiate his contention, he relied on the
judgment of our Hon'ble Apex Court in Union of India vs. Bal Mukund
and others reported in (2009) 12 Supreme Court Cases 161. In otherwise,
in respect to the mandatory requirements, which has to be followed under
Sections 42, 50 and 57 of NDPS Act, he would consider that everything is
in proper.
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Crl.A(MD)No.338 of 2015
13. In the said circumstances, by considering the said submission
with relevant records, it is apparent, while at the time of giving evidence as
P.W.4 the Recovery Officer has duly stated that only 10 grams of
contraband was taken from the total contraband and thereafter, the samples
have been sealed in accordance with the rule already formulated. The
Scientific Officer, who examined the sample contraband, has also stated in
his evidence as while at the time of receiving the sample Opium, the same is
having total weight of 9.200 grams. In the said situation, it is relevant to see
the Standing Order No.1/89, dated 13.06.1989, which had been issued under
the Act lays down the procedure for taking samples. As per the instructions,
as far as Opium is concerned, minimum quantity that has to be taken as a
sample is 24 grams of Opium in each bag. That minimum grams of Opium
are required for conducting the test. But, in this case, admittedly, the
Investigating Officer has taken only 20 grams of the sample. Hence, an
insufficient quantity of sample was taken for conducting the test, which
creates a doubt about the entire case of the prosecution.
14. In this regard, in the case of The Union of India vs. Bal
Mukund and others reported in (2009) 12 Supreme Court Cases 161,
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Crl.A(MD)No.338 of 2015
which relied on by the learned counsel appearing for the appellant, our
Hon'ble Apex Court, in Paragraph 36, held as follows:-
“36. There is another aspect of the matter which
cannot also be lost sight of. Standing Instruction 1/88, which
had been issued under the Act, lays down the procedure for
taking samples. The High Court has noticed that P.W.7 had
taken samples of 25 gm each from all the five bags and then
mixed them and sent to the laboratory. There is nothing to show
that adequate quantity from each bag had been taken. It was a
requirement in law.”
Therefore, applying the ratio laid down in the above referred judgment,
herein also, the Investigating Officer has not followed the due procedure of
law. Therefore, that alone is sufficient to held that the prosecution has
failed to prove the case beyond reasonable doubt.
15. Accordingly, in the light of the above discussions stated supra,
the Criminal Appeal is allowed and the conviction and sentence imposed on
the appellant, by the learned Principal Additional Special Judge for NDPS
Act Cases, Madurai, made in C.C.No.45 of 2006, dated 21.09.2015, is set
aside and the appellant is acquitted from all the charges. The fine amount, if
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Crl.A(MD)No.338 of 2015
any, paid by him, shall be refunded to him. Bail bond, if any, executed by
the appellant shall stand cancelled.
10.08.2021
Index : Yes/No
Internet : Yes/No
am
To
1.The Principal Additional Special Judge for NDPS Act Cases,
Madurai.
2.The Inspector of Police-NIB-CID,
Madurai District.
3.The Section Officer,
Criminal Section Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
Crl.A(MD)No.338 of 2015
R.PONGIAPPAN,J.
am
Crl.A(MD)No.338 of 2015
10.08.2021
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