Madras High Court
Devaraj vs State By The Inspector Of Police on 17 June, 2022
Crl.A.No.430 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.06.2022
CORAM:
THE HON'BLE DR.JUSTICE G.JAYACHANDRAN
Crl.A.No.430 of 2018
and
Crl.M.P.No.9932 of 2018
Devaraj ... Appellant/A2
Versus
State by the Inspector of Police,
T-9, Pattabiram Police Station,
Chennai.
(Crime No.160/2016) ... Respondent
Prayer: Criminal Appeal filed under Section 374(2) of Cr.P.C. praying to
call for the entire records in connection with the C.C.No.59/2016 on the
file of the learned Principal Special Court under NDPS Act, Chennai and
set aside the judgment dated 04.06.2018.
For Appellant : Mr.D.Mario Johnson
(Counsel appointed through Legal Aid)
For Respondent : Mr.S.Udaya Kumar
Government Advocate (Crl. Side)
JUDGMENT
The appellant/Accused No.2 has filed this appeal seeking to set
aside the judgment of conviction rendered by the learned Principal Special
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Crl.A.No.430 of 2018
Judge, Special Court under N.D.P.S. Act, Chennai in C.C.No.59 of 2016
dated 04.06.2018.
2. This is the case under Narcotic Drugs and Psychotropic
Substances (NDPS) Act, wherein the appellant(A2) along with one Suresh
(A1) were charged for offence under Section 8(C) r/w 20(b)(ii)(B) and
Section 29 of the NDPS Act. The trial Court on appreciating the oral
evidence of P.W.1 to P.W.5, 11 documents marked as Exs.P1 to P11 and
three material objects marked as M.O.1 to M.O.3, held Accused No.1 not
guilty and acquitted him, whereas, the appellant herein/Accused No.2 was
found guilty for offence under Section 8(C) r/w 20(b)(ii)(B) and sentenced
him to undergo 5 years Rigorous Imprisonment and to pay a fine of
Rs.50,000/-, in default, to undergo 1 year Rigorous Imprisonment.
3. The case of the prosecution is that on 18.03.2016 at about
8.15 a.m., P.W.1/Sub Inspector of Police attached to Pattabiram Police
Station received a secret information that one Deveraj/appellant herein is
selling Ganja near Hindu College Bus Stand. On receiving the said
information, he reduced it into writing and forwarded to his immediate
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Crl.A.No.430 of 2018
superior, the Inspector of Police and thereafter along with his team
consisting of Grade-I Police Constables, namely, Ponnurangam and
Velmurugan went to the spot mentioned by the informant and mounted
surveillance. At about 9.00 a.m., the informant identified the accused was
carrying polythene bag in his hand. When the said person was
interrogated, he gave contemporary response. He was confirmed as
Devaraj S/o.Madhavan and after informing the option for him to exercise
his right to be searched before the learned Judicial Magistrate or gazetted
officer, he decline to exercise the option and the same was recorded and
thereafter search was conducted. From his possession, 1.240 kgs. of Ganja
kept in the polythene cover was recovered. Two samples, each containing
20 gms. was drawn from the lot and sealed separately. A mahazar was
prepared on the spot. The said Devaraj/appellant herein was arrested,
thereafter his statement was recorded and brought to the Police station at
12.00 p.m. The case was registered in Crime No.160/2016 and detailed
report under Section 57 of NDPS Act was forwarded to the immediate
superior, the Inspector of Police. The evidence of P.W.1 was corroborated
by P.W.2-Velmurugan, Grade-I Constable, who accompanied P.W.1. The
samples drawn was sent for chemical analysis. Mrs.Thilagavathy, Deputy
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Crl.A.No.430 of 2018
Director, Forensic Science Lab was examined as P.W.3. She deposed that
on analysing the sample, she found that it contains 'Cannabinoid'
component of Ganja. P.W.5-Mukesh Rao, Inspector of Police, who
received the detailed report under Section 57 of NDPS Act from P.W.1 and
investigated the case, had deposed that he took up the investigation on
registration of the complaint and prepared Form 95 in respect of the seized
contraband. He arrested Suresh/A1 on 18.03.2016 at 2.00 p.m. near 400
feet road based on the confession statement of the appellant/A2. P.W.5 is
the only prosecution witness cross examined by the accused. The trial
Court while appreciating the evidence, had relied upon Section 57 of the
NDPS Act, which says about the presumption of possession and held that
the prosecution has proved the recovery of M.O.1 to M.O.3 from Accused
No.1, the appellant herein. The accused has failed to discharge his burden
cast upon him under Section 57 of the NDPS Act. The concious
possession of the Ganja has been proved by the prosecution and witnesses
were not even subjected to cross examination, the case held to be proved
beyond reasonable doubt. As far as the first accused is concerned, who
was arrested on suspicion of conspiracy, was acquitted by the trial Court
for want of evidence.
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Crl.A.No.430 of 2018
4. The learned counsel appearing for the appellant submitted that
the trial Court erred in ignoring the material contradiction found in the
examination of P.W.1 and P.W.2 regarding the place of arrest and seizure.
The reasoning to acquit the first accused is also applies to the present
appellant/A2, whereas, the trial Court failed to apply a rule of parity. The
contradiction in the weight of the sample proves tampering of sample,
however, the Court below failed to appreciate the contradiction in the
deposition of P.W.1, P.W.2 and P.W.3 in this regard. The delay in
forwarding the contraband to the Court also not been taken note by the
Court below.
5. The learned Government Advocate (Crl. Side) appearing for the
respondent Police would submit that the recovery of M.O.1 to M.O.3 from
the possession of the accused was spoken by P.W.1 and P.W.2. Their ocular
evidence is supported by Exs.P2 and P3, which are the intimation about
Section 50 of the Act and seizure mahazer, respectively. In, both the
documents the appellant/A2 has affixed his signature. There is no
contradiction or discrepancy regarding the place of seizure or drawing of
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Crl.A.No.430 of 2018
samples. Therefore, he submitted that there is no material contradiction in
the prosecution witnesses as contended by the learned counsel for the
appellant.
6. Regarding the plea taken by the learned counsel for the appellant
that the F.I.R. in this case was registered based on the information given
by P.W.1 and he himself has proceeded to the spot and arrested the
accused. There is no independent evidence to corroborate the arrest and
seizure. Therefore, the same person registering F.I.R., arresting the
accused person causes suspicion in the absence of independent evidence.
For this plea, the learned Government Advocate relying upon the Full
Bench judgment of the Hon'ble Supreme Court in the case of Mukesh
Singh Vs. State (Narcotic Branch of Delhi) reported in (2020) 10 SCC
120, submitted that when there is no bias or prejudice to the accused
person, the said investigation will not be vitiated even if the informant
himself is the investigator. More so, in this case, the informant is not the
investigator, he has handed over the investigation to P.W.5/Mukesh Rao,
the Inspector of Police.
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Crl.A.No.430 of 2018
7. Heard the learned counsel appearing on either side and perused
the materials available on record.
8. On cumulative assessment of the submissions made by the
learned counsel on either side and on perusal of the evidence, this Court
finds that the prosecution witnesses P.W.1 and P.W.2 had proved the
recovery of 1.240 kgs. of Ganja from the possession of appellant herein.
The samples drawn from the contraband sent to a Chemical Analyst and
P.W.3/Thilagavathy had issued the analysis report marked as Ex.P8
indicating that the sample contains 'Cannabinoid' component of Ganja.
Regarding the delay in forwarding the seized material to the Court, this
Court finds that Form 95/Ex.P10 has been prepared on 18.03.2016 and
produced before the learned Judicial Magistrate, who has to made his
endorsement and thereafter to be produced before the Special Court.
Accordingly, it was produced before the Special Court on 30.03.2016 and
A.No.15 of 2016 was assigned on that day by the Special Court.
Therefore, this Court finds that there is no delay in forwarding the material
to suspect tampering or manipulating. In the light of the above fact, this
Court finds no error in the finding of the Court below convicting the
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Crl.A.No.430 of 2018
appellant/accused No.2 for offence under Section 8(C) r/w 20(b)(ii)(B) of
the NDPS Act.
9. Insofar as the sentence imposed, this Court is of the view that
Five (5) years Rigorous Imprisonment and Rs.50,000/- fine, in default, one
year Rigorous Imprisonment needs some consideration. In view of the fact
that the contraband seized is only 1.240 kgs. little over and above the
small quantity and the appellant even not able to pay the fine amount and
he is in prison after conviction, this Court modifies the sentence as 4 years
Rigorous Imprisonment and fine of Rs.25,000/-, in default, to undergo
three months Rigorous Imprisonment.
10. In the result, the Criminal Appeal is partly allowed with the
above modifications. Consequently, connected miscellaneous petition is
closed.
17.06.2022
Index: Yes/No
Internet: Yes/No
rsi
https://www.mhc.tn.gov.in/judis
Crl.A.No.430 of 2018
To
1.The Principal Special Court under NDPS Act,
Chennai.
2.The Inspector of Police,
T-9, Pattabiram Police Station,
Chennai.
3.The Superintendent,
Central Prison-I, Puzhal,
Chennai.
4.The Public Prosecutor,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
Crl.A.No.430 of 2018
DR.G.JAYACHANDRAN, J
rsi
Crl.A.No.430 of 2018
and
Crl.M.P.No.9932 of 2018
17.06.2022
https://www.mhc.tn.gov.in/judis
