Madras High Court
Mookkammal vs State on 23 August, 2021
Crl.A(MD)No.290 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
Crl.A(MD)No.290 of 2016
Mookkammal : Appellant/ Sole Accused
Vs.
State, rep.by
The Inspector of Police,
B-5 Southgate Police Station,
Madurai City.
(Crime No.245 of 2013) : Respondent/Complainant
PRAYER: The Criminal Appeal is filed under Section 374(2) of the Code
of Criminal Procedure, to call for the records in pertaining to the judgment
dated 03.02.2016 passed in a Calendar Case in C.C.No.251 of 2013 by the
II Additional Principal Special (for NDPS Cases) Court, Madurai and set
aside the same by allowing the appeal.
For appellant : Mr.T.Vadivelan
For Respondent : Mr.E.Antony Sahaya Prabahar
Government Advocate (Crl.side)
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Crl.A(MD)No.290 of 2016
JUDGMENT
The present appeal is directed against the conviction and sentence,
dated 03.02.2016 made in C.C.No.251 of 2013 on the file of II Additional
Principal Special (for NDPS Cases) Court, Madurai.
2. The appellant is the sole accused. She stood charged for the
offences punishable under Section 8(C) r/w 20(b)(ii)(B) of Narcotic Drugs
and Psychotropic Substances Act, 1985 (hereinafter referred as “NDPS
Act”). After full-fledged trial, the learned II Additional Principal Special
Judge for NDPS Cases, Madurai, came to the conclusion that the appellant
was found guilty for the offences under Section 8(C) r/w 20(b)(ii)(B) of
NDPS Act and accordingly, the appellant was convicted and sentenced to
undergo Rigorous Imprisonment for 15 months and to pay a fine of Rs.
10,000/-, in default to undergo one month simple imprisonment.
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.290 of 2016
3. 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) PW4-Malaisamy, the then Sub Inspector of Police, B-5
Southgate Police Station, Madurai City, on 05.05.2013 around 13 hours,
while he was in the Police Station, received the information about the
selling of Ganja. The said information was recorded under Ex.P7 in terms
of Section 42(2) of NDPS Act. Thereafter, after obtaining the permission
from the Inspector of Police, he along with one Alagarsamy, the then Head
Constable and PW1-Pandiyammal, around 13.45 hours, reached the
Southveli Street Junction. After identifying the accused, PW4 along with
team approached the accused and informed about the search made on her.
In this regard, PW4 obtained Consent Letter from the accused under Ex.P8.
During the time of search, they were found that the accused possessed with
Ganja weighing about 1.250 kgs. On seeing the same, PW4 took 100 kms
from total contraband and sealed the same for the purpose of chemical
examination. He took the remaining contraband in a brown colour sheet.
Around 14.15 hours, he arrested the accused and recovered the contraband
along with Rs.100/- under a cover of Mahazar (Ex.P1). In turn, the accused
was brought to the police station and the case has been registered against
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Crl.A(MD)No.290 of 2016
her in Crime No.245 of 2013 under Sections 8(C) r/w 20(b)(ii)(B) of NDPS
Act. The printed FIR was marked as Ex.P9. After registering the case as
above, he handed over the case records to PW5 for investigation.
(ii) PW5-Mahesh, the then Inspector of Police, Southgate Police
Station, Madurai, after receipt of the case, made arrangements for handing
over the contraband before the Jurisdictional Court. He submitted an
application to forward the sample contraband for chemical examination.
Then in view of the reference issued by the Court, PW2-Saleemsait, the then
Head Constable, handed over the contraband with the Forensic Science
Department for chemical examination.
(iii) PW3-Baskaran, the then Scientific Officer, Forensic Science
Department, Madurai, on 20.05.2013 received the contraband and examined
the same. On examination, he found that the sample contraband which was
received from the Court, is having the character of Cannabis (Ganja). In
this regard, he issued the report under Ex.P6. After receipt of the chemical
examination report, PW5 came to the positive conclusion that the appellant
is liable to be convicted under Section 8(C) r/w 20(b)(ii)(B) of NDPS Act
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Crl.A(MD)No.290 of 2016
and filed a final report accordingly.
4. Based on the above materials, the trial Court framed the
charges against the accused under Section 8(C) r/w 20(b)(ii)(B) of NDPS
Act. The accused denied the charges and opted for trial. Therefore, she was
put on trial.
5. During the course of trial proceedings, in order to prove their
case, on the side of the prosecution, 6 witnesses have been examined as
PW1 to PW6 and 10 documents were exhibited as Ex.P1 to Ex.P10, besides,
two Material Objects [M.O.1 and M.O.2].
6. (i) Out of the said witnesses, PW1-Pandiyammal, the then Head
Constable, Southgate Police Station, Madurai, speaks about the search
conducted on the accused and about the recovery made from her. PW2-
Saleemsait the then Head Constable, Southgate Police Station, Madurai,
speaks about the recovery of contraband.
(ii) PW3-Baskaran, the then Scientific Officer, Forensic Science
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Crl.A(MD)No.290 of 2016
Department, Madurai, speaks about the examination of contraband
recovered during the time of investigation. PW4-Malaisamy and PW5-
Mahesh, who are Police Officers, speak about the receipt of information,
conducting search, recovery of contraband, registration of the case and
about filing of final report.
(iii) PW6- Praveenkumar, who is the witness attested in Mahazar
which was prepared for recovery of contraband, has not given evidence in
support of the prosecution. Hence, after getting leave from the Court, he
was treated as hostile witness.
7.When the above incriminating materials were put to the accused
under Section 313 Cr.P.C., the accused denied the same as false. However,
she did not choose to examine any witness nor mark any document on her
side.
8.Having considered all the above, the learned II 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 20(b)
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Crl.A(MD)No.290 of 2016
(ii)(B) of NDPS Act and sentenced her as stated in paragraph No.2 of this
judgment. Aggrieved by the said conviction and sentence, the appellant is
before this Court with this appeal.
9. I have heard Mr.T.Vadivelan, learned counsel appearing for the
appellant and Mr.E.Antony Sahaya Prabahar, learned Government Advocate
(crl.side) and also perused the records carefully.
10. The learned counsel for the appellant would contend that the
evidence given by the prosecution witnesses did not reveal the fact that on
what date the recovered contraband was produced before the Court. Further
the witness, who attested in the Seizure Mahazar, being the public, had not
supported the case of the prosecution. The learned counsel further added
that while at the time of securing the accused, particularly before made
search, the right having by her in terms of Section 50 of the NDPS Act has
not been explained to her and the same is sufficient to hold that the
prosecution has failed in its attempts to prove the case. According to him,
the conviction and sentence imposed by the trial Court is liable to be set
aside.
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Crl.A(MD)No.290 of 2016
11.Per contra, the learned Government Advocate (crl.side)
appearing for the respondent would contend that being the reason the
witness attested in the Seizure Mahazar turned hostile, it cannot be said that
the entire case of the prosecution is false one. According to him, the
interference of this Court in the finding arrived at by the trial Court, is not
required.
12.I have considered the rival submissions made by the learned
counsel appearing on either side.
13.Now on go through the evidence given by PW4, it is seen that
after securing the accused, she has not been explained by PW4 in respect to
the right having by her under Section 50 of NDPS Act. The communication
of the said right to the person, who is about to be searched, is not an empty
formality. It has a purpose. Since the offence under the NDPS Act carry
stringent punishment, it is necessary to follow the prescribed procedure
meticulously without any lapse. In the case of State of Rajasthan Vs
Parmanand and others reported in (2014) 5 SCC 335, our Hon'ble Apex
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Crl.A(MD)No.290 of 2016
Court has very much urged the Investigation Officer in this regard. Further,
in the case of Arif Khan Alias Agha Khan Vs State of Uttarakhand
reported in (2018) 18 SCC 380, our Hon'ble Apex Court has held as
follows:-
“Their Lordships have held in Vijaysinh Chandubha
Jadeja that the requirements of Section 50 of the NDPS
Act are mandatory and, therefore, the provisions of
Section 50 must be strictly complied with. It is held that it
is imperative on the part of the police officer to apprise
the person intended to be searched of his right under
Section 50 to be searched only before a gazetted officer or
a Magistrate. It is held that it is equally mandatory on the
part of the authorised officer to make the suspect aware of
the existence of his right to be searched before a gazetted
officer or a Magistrate, if so required by him and this
requires a strict compliance. It is ruled that the suspect
person may or may not choose to exercise the right
provided to him under Section 50 of the NDPS Act but so
far as the officer is concerned, an obligation is cast upon
him under Section 50 of the NDPS Act to apprise the
suspect of his right to be searched before a gazetted
officer or a Magistrate.”
14.Therefore, it is already ruled out that the suspect person may or
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Crl.A(MD)No.290 of 2016
may not choose to exercise the right. It is for the Investigation Officer to
apprise the person intended to be searched, to his right under Section 50 of
the NDPS Act. So it is made clear that in the present case, the mandatory
procedure required under Section 50 of the NDPS Act is not complied with.
15.Further on go through the evidences given by the prosecution
witnesses, particularly, in the evidence given by the Investigation Officer, it
is seen that he has not stated about the date, on which the recovered
contraband was produced before the Court after made recovery on
05.05.2013. In this regard, the letter issued by the Court (Ex.P5) forwarding
the samples to the Forensic Science Department had been received by the
Chemical Examiner only on 20.05.2013, i.e., after 15 days from the date of
recovery. So, it is necessary for the prosecution to prove under whose
custody the said contraband was kept available in the interregnum period.
Further, in respect to sending the detailed report to his Superior Officer,
PW4, who is the Investigation Officer, has not given evidence as to what
date Section 57 report was given to his Superior Officer. In this regard, in
the case of Gurbax Singh Vs State of Haryana reported in A.I.R 2001 S.C.
1002, wherein our Hon'ble Apex court has held as follows:-
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Crl.A(MD)No.290 of 2016
It is true that the provisions of Sections 52 and 57 of
NDPS Act are directory. Violation of these provisions would
not ipso facto violate the trial or conviction. However, the
Investigation Officer cannot totally ignore these provisions and
such failure will have a bearing on appreciation of evidence
regarding arrest of the accused or seizure of the article”
16.Applying these factors with the case on hand, here it is the case
that the Investigation Officer has not stated about the date, on which the
contraband was produced in the Court. Further, there is no evidence on
what date he has submitted the application before the Magistrate for sending
the contraband to chemical examination. More than that, the correct details
in respect to the seal found on the sample contraband has also not been
explained by the chemical examiner. Therefore, non-mentioning the date
and other things in respect to the contraband recovered is having much
significance to decide the issue raised in this case.
17.As already observed, since NDPS Act is having stringent
punishment, it is necessary to scrutinize the entire aspect before sentencing
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Crl.A(MD)No.290 of 2016
the accused. Here, it is the case, the true aspect which is narrated as above,
makes it clear that the prosecution has not approached this Court with clean
hands. Therefore, I am of the opinion that the conviction and sentence
passed by the trial Court is liable to be set aside.
18. In fine, this Criminal Appeal is allowed and the conviction
and sentence imposed on the appellant, by the learned II Additional
Principal Special Judge for NDPS Act Cases, Madurai, made in C.C.No.
251 of 2013, dated 03.02.2016, is set aside and the appellant is acquitted
from all 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.
23.08.2021
Index : Yes/No
Internet : Yes/No
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To
1.The II Additional Principal Special Judge for NDPS Act Cases,
Madurai.
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Crl.A(MD)No.290 of 2016
2.The Inspector of Police,
B-5 Southgate Police Station,
Madurai City.
3.The Section Officer,
Criminal Section Records,
Madurai Bench of Madras High Court,
Madurai.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.A(MD)No.290 of 2016
R.PONGIAPPAN,J.
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Crl.A(MD)No.290 of 2016
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