Madras High Court
Mohamed Ali vs The State Represented By on 25 August, 2021
Crl.A (MD) No.70 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
Crl.A.(MD)No.70 of 2016
1.Mohamed Ali
2.Sundar Singh : Appellants/
Accused No.1 & 2
Vs.
The State represented by,
The Inspector of Police,
Vadaseri Police Station,
Kanyakumari District.
(Crime No.2940 of 2011) : Respondent
PRAYER: This Criminal Appeal is filed under Section 374(2) of the Code
of Criminal Procedure, to call for the entire records pertaining to the
judgment rendered by the Hon'ble II Additional Special Court for NDPS Act
Cases, Madurai, in C.C.No.159 of 2014 dated 06.02.2016 and set aside the
same and consequently acquit the appellants honourably.
For 1st Appellant : Mr.V.Kathirvel
Senior Counsel
for Mr.S.Balaji
For 2nd Appellant : Mr.N.Mohidheen Basha
for Mr.S.Balaji
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For Respondent : Mr.M.Muthumanikkam,
Counsel for Government of
Tamil Nadu (crl.side)
JUDGMENT
This present criminal appeal is directed against the conviction and
sentence dated 06.02.2016 made in C.C.No.159 of 2014 on the file of the
learned II Additional Special Court for N.D.P.S Act Cases, Madurai.
2.The appellants are arrayed as Accused Nos.1 and 2 in the above
referred case. They stood charged for the offence punishable under Sections
8(C) r/w 22 (b) of NDPS Act. After full-fledged trial, the learned II
Additional Special Judge for N.D.P.S Act cases, Madurai, came to the
conclusion that both the appellants are found guilty for the offence under
Section 8(C) r/w 22 (b) of NDPS Act and accordingly, convicted the
appellants and sentenced each of them to undergo three years rigorous
imprisonment and to pay a fine of Rs.25,000/-, in default, to undergo six
months simple imprisonment. Challenging the said conviction and
sentence, the appellants are before this Court with the present Criminal
Appeal.
3.The case of the prosecution in brief is as follows:-
(i) On 23.11.2011, PW6-Selvaraj the then Inspector of Police,
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Vadaseri Police Station, Kanyakumari District, while he was in patrolling
duty along with PW3-Chandran, Murugesan and one David Rabinson,
PW1-Krishnakumar and PW2-Iyyappan gave information as in Vadseri bus
stand near to Supreme Hotel, some persons are selling the Buprenorphine
injection, which is prohibited for sale under NDPS Act.
(ii) After receipt of the said information, PW6 along with PW1 to
PW3 went to Vadaseri bus stand wherein after seeing the Police party, the
accused herein attempted to run away from the place, wherein he was
standing. However, the police party headed by PW6, secured the accused
and informed about the rights, in respect to the search guaranteed in their
favour under Section 50 of NDPS Act. In respect to the said information,
both the accused did not want to exercise the said right and permitted the
police officers to conduct search over them. In this regard, the joint consent
letter given by both the accused is marked as Ex.P4. After obtaining the
said consent letter, during the time of search, the Police party found that the
first accused possessed with 12 numbers of Buprenorphine injection in the
quantity of 2 ml, 4 numbers of Tenergran, three bottles of phenergen and 13
bottles without any labels. Further, they find out that the accused was
possessed with six syringe and Rs.3,000/- which is the sale price. After
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identifying the said contraband, PW6, in the presence of PW3 prepared the
Seizure Mahazar and recovered the same. Further, in the presence of same
witness, PW6 obtained confession statement from the accused.
(iii) In continuation of investigation, after made recovery PW6
brought the accused with recovered contraband to the Police Station and
registered the case against them in Crime No.2940 of 2011 under Section
8(C) r/w 22(b) of NDPS Act. The printed FIR is marked as Ex.P7. After
registration of the case, he visited the scene of occurrence and prepared the
Observation Mahazar in the presence of PW5-Kannan and one Ayyappan.
He has drawn the rough sketch under Ex.P9. He examined the witnesses
and recorded their statements. He made arrangements for sending the
accused to the judicial custody. He submitted an application in the Court
praying to send the recovered contraband for chemical examination. After
completing the above formalities, since he was transferred from the said
post, he handed over the case records to PW7 for further investigation.
(iv) PW7-Periyasamy the then Inspector of Police, Vadaseri
Police Station, on receipt of the case records, examined the witnesses, who
are all already examined by PW6. Since those witnesses gave the same
statements, he has not recorded separate statements from them. In the
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meantime, upon the request given by the Investigation Officer, the learned
Additional District Judge, Principal Special Court for EC & NDPS Act
Cases, Madurai, issued the proceedings to send the recovered contraband
for chemical examination. In turn, PW4-Srividya Srinivasan, Scientific
Assistant, Forensic Science Department, Chennai, examined the recovered
contraband and issued the certificate under Ex.P3 stating that there was
Buprenorphine found in 11 class bottles, which is prohibited under NDPS
Act. After receipt of the said report, PW7 examined PW4 and recorded the
statement. Ultimately, on verification of records, PW7 came to the positive
conclusion that both the accused are liable to be convicted under Section
8(C) r/w 20(b) of NDPS Act. He filed the final report accordingly.
4.Based on the materials available on record, the trial Court
framed the charge for the offence under Section 8(C) r/w 22(b) of NDPS
Act. The accused denied the charges and opted for trial. Therefore, the
accused were put on trial.
5.During the course of trial proceedings, in order to prove their
case, on the side of the prosecution, as many as 7 witnesses were examined
as PW1 to PW7 and 15 documents were exhibited as Ex.P1 to Ex.P15.
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6.(i) Out of the above said witnesses, PW1 and PW2, who are the
alleged informers informed about the possession of contraband did not gave
any evidence in support of the case of the prosecution. Hence, they were
treated as hostile witnesses. PW3-Chandran the then Head Constable,
Vadaseri Police Station, speaks about the occurrence as during the relevant
point of time, he was present along with PW6 in Vadaseri bus stand and
secured the accused and after following the rules contemplated under NDPS
Act, recovered the contraband from the accused.
(ii) PW4 -Srividhya Srinivasan, Scientific Assistant, Forensic
Science Department, Chennai, speaks about the examination of contraband,
which was alleged to be recovered from the accused and about the issuance
of certificate. PW5-Kannan is the alleged witness to the preparation of
Observation Mahazar. He has not given evidence in support of the
prosecution and therefore, he was treated as hostile witness.
(iii) PW6-Selvaraj and PW7-Periyasamy, are the Police Officers
gave evidence in respect to the receipt of information, details of the search
made on the accused, recovery of contraband, sending the contraband to the
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chemical examination and about the filing of final report.
7.When the above incriminating materials were put to the accused
under Section 313 of Cr.P.C., the accused denied the same as false.
However, they did not choose to examine any witness nor mark any
document on his side.
8.Having considered all the above, the learned II Additional
Special Judge for NDPS Act Cases, Madurai, came to the conclusion that
both the accused are guilty under Section 8(C) r/w 22(b) of the NDPS Act
and accordingly, convicted and sentenced the accused as stated in paragraph
No.2 of this judgment. Aggrieved by the said conviction and sentence, the
appellants/accused are before this Court with this appeal.
9. I have heard Mr.V.Kathirvel, learned senior counsel appearing
for the first appellant, Mr.N.Mohidheen Basha, learned counsel appearing
for the second appellant and Mr.M.Muthumanikkam, learned Government
Advocate (crl.side) appearing for the State and also perused the records
carefully.
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Crl.A (MD) No.70 of 2016
10.The learned counsel appearing for the appellants would
contend that in the present case, during the time of investigation, the
procedure adopted by the Investigation Officer, are all in violation of
Sections 42, 50 and 57 of NDPS Act and therefore, due to the failure of
mandatory requirements, it cannot be held that the prosecution has proved
its case beyond reasonable doubt. Accordingly, they prayed to set aside the
conviction and allow the appeal.
11.Per contra, the learned Government Advocate (Crl.side)
appearing for the State would contend that the evidence put forth by the
prosecution are sufficient to hold that the accused are possessed with
banned contraband at the relevant point of time. According to him,
interference of this Court in the finding arrived at by the trial Court, does
not require.
12.I have considered the rival submissions made by the learned
counsel appearing on either side.
13.First of all, it is the evidence given by PW6 and PW3 is that
while at the time they were in patrolling duty in Vadaseri bus stand, they got
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information about the possession of banned contraband. The said
information have not recorded in writing and submitted before their
Superior Officer. In this regard, it is the contention raised by the learned
senior counsel for the first appellant that though the Investigation Officer
got information in the public place, it is the duty to record the said
information after recovering the contraband from the accused. By arguing
as above, he relied on the judgment rendered by our Hon'ble Apex Court in
Crl.A No.36 of 2003, dated 29.07.2009, in the case of Karnail Singh Vs
State of Haryana, wherein, it has been held as follows:-
“In other words, the compliance with the
requirements of Sections 42(1) and 42(2) in regard to writing
down the information received and sending a copy thereof to
the superior officer, should normally precede the entry, search
and seizure by the officer. But in special circumstances
involving emergent situations, the recording of the information
in writing and sending a copy thereof to the official superior
may get postponed by a reasonable period, that is after the
search, entry and seizure. The question is one of urgency and
expediency”
14.Further reiterating the said observation in Crl.A.No.421 of
2021 in the case of Boota Singh & others Vs State of Haryana, reported in
LL 2021 SC 218, wherein our Hon'ble Apex Court has held as follows:-
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10. In Karnail Singh , the Constitution Bench of this
Court concluded:-
“35. In conclusion, what is to be noticed is that Abdul Rashid
[(2000) 2 SCC 513 : 2000 SCC (Cri) 496] did not require literal
compliance with the requirements of Sections
42(1) and 42(2) nor did Sajan Abraham [(2001) 6 SCC 692 :
2001 SCC (Cri) 1217] hold that the requirements of Sections
42(1) and 42(2) need not be fulfilled at all. The effect of the two
decisions was as follows:
(a) The officer on receiving the information [of the
nature referred to in sub-section (1) of Section 42] from
any person had to record it in writing in the register
concerned and forthwith send a copy to his immediate
official superior, before proceeding to take action in
terms of clauses (a) to (d) of Section 42(1).
(b) But if the information was received when the officer
was not in the police station, but while he was on the
move either on patrol duty or otherwise, either by
mobile phone, or other means, and the information calls
for immediate action and any delay would have resulted
in the goods or evidence being removed or destroyed, it
would not be feasible or practical to take down in
writing the information given to him, in such a situation,
he could take action as per clauses (a) to (d) of Section
42(1) and thereafter, as soon as it is practical, record
the information in writing and forthwith inform the same
to the official superior.
(c) In other words, the compliance with the requirements
of Sections 42(1) and 42(2) in regard to writing down
the information received and sending a copy thereof to
the superior officer, should normally precede the entry,
search and seizure by the officer. But in special
circumstances involving emergent situations, the
recording of the information in writing and sending a
copy thereof to the official superior may get postponed
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by a reasonable period, that is, after the search, entry
and seizure. The question is one of urgency and
expediency.
(d) While total non-compliance with requirements of
sub- sections (1) and (2) of Section 42 is impermissible,
delayed compliance with satisfactory explanation about
the delay will be acceptable compliance with Section
42. To illustrate, if any delay may result in the accused
escaping or the goods or evidence being destroyed or
removed, not recording in writing the information
received, before initiating action, or non-
sending of a copy of such information to the official
superior forthwith, may not be treated as violation of
Section
42. But if the information was received when the police
officer was in the police station with sufficient time to
take action, and if the police officer fails to record in
writing the information received, or fails to send a copy
thereof, to the official superior, then it will be a
suspicious circumstance being a clear violation
of Section 42 of the Act. Similarly, where the police
officer does not record the information at all, and does
not inform the official superior at all, then also it will
be a clear violation of Section 42 of the Act. Whether
there is adequate or substantial compliance
with Section 42 or not is a question of fact to be
decided in each case. The above position got
strengthened with the amendment to Section 42 by Act 9
of 2001.” (Emphasis added)
15.So, the decision rendered by our Hon'ble Apex Court is quite
clear that though the situation is not accommodated for recording the
information, it is for the Officer, who got information, to record the said
information immediately he reaches the police station. But in this case,
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nothing was done by PW6. Therefore, the requirement of Section 42 of
NDPS Act is not complied with in this case.
16.Secondly, in respect to the submission that there was a
violation in respect to Section 50 NDPS Act, on considering the said
submission with relevant records, it seems that after securing the accused,
PW6 and PW3 obtained joint consent letter from both the accused. In this
aspect, it is necessary to find out that whether the joint consent letter in
respect to the communication of right available under Section 50(1) of
NDPS Act is sufficient and valid in law. In this occasion, it is relevant and
useful to see the judgment of this Court reported in (2014) 5 SCC 335 in
the case of State of Rajasthan Vs V.Parmanand and others, wherein it has
been held as follows:-
14.In our opinion, a joint communication of the right
available under Section 50(1) of the NDPS Act to the accused
would frustrate the very purport of Section 50. Communication
of the said right to the person who is about to be searched is not
an empty formality. It has a purpose. Most of the offences under
the NDPS Act carry stringent punishment and, therefore, the
prescribed procedure has to be meticulously followed. These
are minimum safeguards available to an accused against the
possibility of false involvement. The communication of this right
has to be clear, unambiguous and individual. The accused must
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be made aware of the existence of such a right. This right would
be of little significance if the beneficiary thereof is not able to
exercise it for want of knowledge about its existence. A joint
communication of the right may not be clear or unequivocal. It
may create confusion. It may result in diluting the right. We are,
therefore, of the view that the accused must be individually
informed that under Section 50(1) of the NDPS Act, he has a
right to be searched before a nearest gazetted officer or before
a nearest Magistrate. Similar view taken by the Punjab &
Haryana High Court in Paramjit Singh and the Bombay High
Court in Dharamveer Lekhram Sharma meets with our
approval. It bears repetition to state that on the written
communication of the right available under Section 50(1) of the
NDPS Act, respondent No.2 Surajmal has signed for himself
and for respondent No.1 Parmanand. Respondent No.1
Parmanand has not signed on it at all. He did not give his
independent consent. It is only to be presumed that he had
authorized respondent No.2 Surajmal to sign on his behalf and
convey his consent. Therefore, in our opinion, the right has not
been properly communicated to the respondents. The search of
the bag of respondent No.1 Parnanand and search of person of
the respondents is, therefore, vitiated and resultantly their
conviction is also vitiated.
17.Accordingly, informing the right available under NDPS Act
jointly to the several accused is a clear violation of Section 50(1) of NDPS
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Act. In this case, vide Ex.P4, PW6 jointly communicated the right available
to the accused and thereafter, he got signature from both the accused in a
single consent letter. Therefore, the said lapse committed by the
Investigation Officer amounts to violation of mandatory requirements,
which are necessary to comply under Section 50(1) of NDPS Act.
Therefore, in this aspect also, the procedure adopted by the Investigation
Officer is not in accordance with the rules contemplated under the Act.
18.The one another omission found in the case of the prosecution
is that as per the case of the prosecution, the alleged contraband was
recovered on 23.11.2011. Subsequently, the same has been produced before
Court on 13.12.2011 in RPR No.194/2011. Now on go through the
evidence given by PW6 and PW7 in respect to the delay, they have not
offered any explanation as to why the recovered contraband was not sent to
the Court immediately after the recovery. Further, they have not stated
about in whose possession the said property was available in the
interregnum period.
19.More than that, after the production of contraband in the Court
on 13.12.2011, the Investigation Officer submitted the requisition for
sending the contraband for chemical examination only on 29.01.2014. In
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fact, in Clause 13 of the Standing Instructions No.01/1988 issued by the
Narcotics Control Bureau, New Delhi, is quite clear in respect to the time
limit for despatch of sample to the laboratory. For easy reference, the same
is extracted as follows:-
13.Mode and Time limit for despatch of sample to Laboratory;
The samples should be sent either by insured post
or through special messenger duly authorised for the
purpose. Despatch of samples by registered post or
ordinary mail should not be resorted to. Samples must be
despatched to the Laboratory within 72 hours of seizure to
avoid any legal objection.
So, in this area also, the Investigation Agency without following any rules,
sent the requisition with enormous delay.
20.Accordingly, after violating all the rules and regulations, the
present case has been investigated by the Investigation Officer. The trial
Court has also without seeing the rudimentary principle and without
applying its mind, disposed of the case after awarding the punishment to the
appellants, which is nothing but erroneous one.
21.In the light of the forgoing discussions, I am of the opinion
that the conviction and sentence passed by the trial Court is liable to be set
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aside. Accordingly, this Criminal Appeal is allowed and the conviction and
sentence imposed on the appellants/accused, by the II Additional Special
Court for NDPS Act Cases, Madurai, dated 06.02.2016 is set aside and the
appellants/accused are acquitted from all the charges. The fine amount, if
any, paid by them, shall be refunded to them. Bail bond, if any,
executed by the appellants shall stand cancelled.
25.08.2021
Index : Yes/No
Internet : Yes/No
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To:-
1.The II Additional Special Judge for NDPS Act Cases, Madurai.
2.The Inspector of Police,
Vadaseri Police Station,
Kanyakumari District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
4.The Section Officer,
Criminal Section records,
Madurai Bench of Madras High Court,
Madurai.
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Crl.A (MD) No.70 of 2016
R.PONGIAPPAN, J.
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JUDGMENT MADE IN
Crl.A.(MD)No.70 of 2016
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Crl.A (MD) No.70 of 2016
25.08.2021
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