Madras High Court
Saroja vs State Rep. By The Inspector Of ... on 15 September, 2022
Crl.A.No.153 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 01.09.2022
DATED : 15.09.2022
CORAM
THE HON'BLE Mr.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.A.No.153 of 2021
Saroja .. Appellant
Vs
State Rep. by The Inspector of Police
NIB CID, Kancheepuram. .. Respondent
Prayer: This Criminal Appeal is filed under Section 374(2) of Code of
Criminal Procedure, 1973, to set aside the judgment passed against the
appellant / accused dated on 23.01.2021 passed in C.C.No.181 of 2018 by
the learned first Additional Special Court, Chennai (Cases dealing with
NDPS cases) and acquit him from all the charges.
For Appellant : Ms.A.Devaki
For Respondent : Mr.S.Vinoth Kumar
Government Advocate (Crl. Side)
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Crl.A.No.153 of 2021
JUDGMENT
On 25.09.2018, at about 5.00AM, when P.W.1 was on duty as the
Inspector in NIB CID, he received a secret information from phone that the
appellant / accused is smuggling Ganja by bus from Andra Pradesh for sale
in Tamil Nadu. He reduced the said information into writing by about
5.15AM and informed the same to his superior officer P.W.5 and after
getting permission from him, proceeded to the place of inspection at about
7.30A.M. at Elavur check post, at about 8.00AM, the appellant / accused
was shown by the secret informant and she was carrying two wooden
handled shopping bags. Since no other independent witness volunteered, by
keeping the Police Personnel who accompanied the search party as witness,
the appellant / accused was enquired whether the appellant can be searched
by P.W.1 himself or whether she needs to be searched before a Gazetted
Officer / Magistrate, to which the appellant / accused consented that she can
be searched by P.W.1 itself. Therefore, she made a consent letter ready and
after obtaining the signature of the appellant / accused, the appellant /
accused handed over both the shopping bags and upon search of the said
bags, it was found that each bag contained 11kgs of ganja.
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2. Thereafter, by drawing four samples (S1, S2, S3 and S4), two each
from the respective bags, the contraband was seized and labelled as P.1 and
P.2 respectively. Thereafter, P.W.1 proceeded to prepare the seizure
mahazar and made formal arrest of the appellant / accused, informed her
husband and thereafter proceeded to the police station and registered a case
in Crime No.38 of 2018. She prepared the detailed report to the superior
officer as per Section 57 of the NDPS Act. On the same day, she sent the
accused for remand and submitted the file to the superior officer. Since the
contraband was of commercial quantity, on 28.09.2018, as per the orders of
P.W.5, she submitted the contraband before the Special Court along with
the requisition letter for chemical analysis of the contraband. Thereafter, the
investigation was completed and the charge sheet was laid before the
Special Court. Thereupon, the case was taken on file as C.C.No.181 of 2018
and upon furnishing of the copies to the accused and on consideration of
the materials, the Trial Court framed the charge under Section 8(c) r/w
20(b)(ii)(c) of the NDPS Act. Upon questioning, the appellant / accused
denied the charge and stood trial.
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Crl.A.No.153 of 2021
3. So as to bring home the charges, the Seizing Officer namely,
Chitra was examined as P.W.1. One Pichamuthu, the Special Sub-Inspector
who accompanied P.W.1 for the search was examined as P.W.2. One
Meenakshi, the Assistant Deputy Director of Forensic Department, who
conducted the analysis of the contraband and gave a finding that it was
ganja was examined as P.W.3. One Sarthar, Grade II Constable, who also
accompanied the search and stood as witness for seizure was examined as
P.W.4. The Investigating Officer was examined as P.W.5. On behalf of the
prosecution, Exhibit P.1 to Exhibit P.11 were marked and the samples of
the contraband were produced as M.O.I to M.O.IV. Upon being questioned
about the material evidences and incriminating circumstances on record, the
appellant / accused denied the same as false. Thereafter, no evidence was let
in on behalf of the defence. The Trial Court therefore proceeded to hear the
learned Special Public Prosecutor on behalf of the prosecution and the
learned counsel for the accused and by a judgment dated 3.01.2021, found
the accused guilty of the charge and imposed a sentence to undergo rigorous
imprisonment for a period of ten years and to pay fine of Rs.1 lakh and in
default of payment of fine, to undergo rigorous imprisonment for a period
of one year. Aggrieved by which, the present appeal is filed before this
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Crl.A.No.153 of 2021
Court.
4. Heard Ms.A.Devaki, learned counsel for the appellant and
Mr.S.Vinoth Kumar, learned Government Advocate on behalf of the
respondent and perused the material records of this case.
5. Learned counsel appearing on behalf of the appellant would submit
that the personal examination of the accused was attempted and done in
public, therefore, P.W.1 is not empowered to do the same and the same is
illegal and therefore, the appellant / accused is entitled for acquittal. She
would further submit that out of the four samples drawn, only S.1 and S.2
alone is produced and the other two samples, S.3 and S.4 were not produced
before the Trial Court. She would further submit that, even though in this
case, the alleged seizure of contraband took place on 25.09.2018, it was
produced before the Trial court only on 28.09.2018 and therefore, there is a
huge delay of more than seventy two hours in producing the contraband
before the Trial court and there is no explanation whatsoever which is given
by P.W.1 or P.W.5 in respect of the custody of the contraband during the
said period and therefore, in the absence of the custody being duly entrusted
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Crl.A.No.153 of 2021
to the Court or to the Malkhana or under the safe custody in police station,
the authenticity of the contraband cannot be believed and therefore, the
accused is entitled for the benefit of doubt.
6. Learned counsel would further submit that no medical examination
was conducted after the arrest of the accused and therefore, it is violative of
the mandatory guidelines. She would also rely upon the News item
whereunder, the Government of Kerala has submitted to the Kerala High
Court about the mandatory guidelines framed by it in respect of the medical
examination pursuant to the directions of the National Human Rights
Commission. She would submit that the investigation in this case is also not
conducted by any officer in the rank of Deputy Superintendent of Police or
more.
7. In support of her contentions, learned counsel also relied upon the
judgment in Manjunath Lingaraj Hosamani vs. The State of Karnataka1
more specifically paragraph 9, in respect of the manner of despatch of the
samples to the laboratory and submitted that the mandatory guidelines were
not followed in the instant case. Learned counsel further relied upon the
1 MANU/KA/3478/2019
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Crl.A.No.153 of 2021
judgment in Mohan Lal vs State of Punjab2 more specifically paragraphs 8
to 13 to submit that under the NDPS Act, since the reverse onus placed on
the accused, it must be ensured that the investigation was in a fair manner.
In this case, she would submit that there was no independent witness for the
seizure. There was no proper custody of the contraband. The mandatory
safeguard under Section 50 was also not followed. Therefore, cumulatively,
she would submit that when there is no fair investigation, the benefit of
doubt should be given to the accused.
8. Per contra, learned Government Advocate (Crl. Side) would
submit that the accused was intercepted at the check post and immediately
she handed over the two wooden handled shopping bags with ganja
contained in it and therefore, the contentions as if she was examined in
public are of without any merits. He would submit that all the four samples
were sent and the reverse of the Form 91 clearly depicts the same and the
learned counsel is relying upon an improper photocopy, where, the backside
of the Form 91 was missed to be photocopied. He would submit that this is
a case that since at that point of time, learned Magistrates were not
accepting the production of contraband, as this case is prior to the directions
2 2018 17 SCC 627
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Crl.A.No.153 of 2021
given to this Court in Dhanraj vs State (Crl.A.No.319 of 2012) and
immediately upon papers relating to the remand reached the Special Court
from the learned Judicial Magistrate before whom the accused was sent for
remand, the contraband was produced on 28.09.2018 itself and was sent for
analysis and absolutely no doubt whatsoever can be made out against the
seizure or the production. The Trial Court has passed a detailed order on
03.11.2018 after weighing the contraband and handing it over to the Drug
Disposal Committee for destruction and accordingly, the contraband was
duly destructed and P.W.1 has spoken about the same. P.W.5 is in the rank
of Deputy Superintendent of Police and therefore, the contention in this
regard is unsustainable. He would further submit that since the contraband
was immediately produced before the Trial Court on 28.09.2018 itself, it
was not handed over to the Malkhana. Therefore, he would submit that the
contentions raised by the learned counsel for the appellant are without
substance and prayed for dismissal of the appeal.
9. I have considered the rival submissions made on either side and
perused the material records of this case.
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10. In this case, the information received by P.W.1 is reduced into
writing in Exhibit P.1 and the same was duly submitted to the superior
officer and the said Special Report is marked as Exhibit P.6. Therefore, the
mandatory provisions under Section 42 of the NDPS Act and the Provisions
under Section 57 of the NDPS Act stood complied with. In this case, the
contraband is recovered from the shopping bag and not from the person of
the accused. Therefore, the compliance of Section 50 does not arise in this
case, as the legal position is made clear by the Hon'ble Supreme Court of
India in Dayalu Kashyap vs The State of Chhattisgarh3. As far as the
compliance of the forwarding the contraband immediately to the superior
officer or to the Malkhana is concerned, the contraband was seized on
25.09.2018, however, immediately on receipt of the papers from the learned
Judicial Magistrate, it was produced before the Trial Court on 28.09.2018
itself and therefore, there is no any undue delay in this matter. P.W.1 has
categorically answered that the contraband was in her custody only.
Therefore, in this case, I hold that there is no violation of Section 52 of the
NDPS Act and in any event, the same has not in any manner prejudiced the
defence of the accused.
3 2022 Live Law (SC) 100
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11. The contraband were duly weighed, sampled and sealed. The
samples were duly analysed and the contraband was disposed as per the
orders of the Court. The two witnesses, P.W.2 and P.W.4 were examined.
Even though they were not independent witnesses, it is explained by the
prosecution that at that point of time, nobody else near the check post
volunteered to be a witness for the seizure. Therefore, from the receipt of
secret information until search, the seizure, production and disposal of the
contraband, I am of the view that the investigation is fair and proper in the
instant case and therefore, once the prosecution has proved that it has
complied with the mandatory provisions of the Act and that the
investigation was done in a fair and proper manner, coupled with the
production of the contraband and the chemical analysis report, then the
prosecution has discharged its onus by establishing the foundational facts
relating to the concious possession of the contraband by the accused.
12. Even, the weighing done by the Trial Court even after the
removal of the samples, the Trial Court found that the first bag weighed
about 10,900gms and the second bad weighed 10,750gms, which is more
than 20kgs, being a commercial quantity. Thereafter, the defence have not
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Crl.A.No.153 of 2021
in any manner let in any evidence or made any statement under Section 313
of the Code of Criminal Procedure nor cross examined by suggesting any
defence version to rebut the presumption under Section 35 and 54 of the
Act. Therefore, I am of the view that the charge against the appellant /
accused is proved beyond reasonable doubt in the instant case.
13. As far as the contention of the learned counsel that the appellant /
accused was searched in public place is concerned, the evidence is
otherwise and there is no evidence of any search of person in the present
case and she was intercepted in the check post, upon which, she handed
over the bags containing the contraband and therefore, there is no any
illegality in confronting the accused in the check post.
14. The argument that out of the four samples, only two was handed
over is factually incorrect and this Court verified the original Form 91 from
which it is clear that all the four samples were handed over to the Court. I
have already held that there was no any undue delay in the instant case in
producing the contraband.
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15. As far as the medical examination is concerned, there was no
cross examination in the instant case that the accused was not subjected to
medical examination before the remand. But, however, the arrest memo
which is marked as Exhibit P.4 though records that the personal
examination of the accused does not reveal any external injury or scar, it
has not expressly mentioned that the appellant / accused was subjected to
medical examination. Therefore, it is to be taken that the appellant / accused
was not subjected to medical examination before the remand. But, however,
the same by itself is not a ground for acquittal and will not be fatal to the
case of the prosecution and especially when in this case, it was not alleged
or suggested in the cross examination that there were physical torture for
extracting confession etc, and therefore it cannot be held that any prejudice
is caused to the accused on account thereof, especially when she was hale
and healthy at the time of remand and even thereafter. Therefore, the said
contention of the learned counsel for the appellant / accused stands rejected.
16. Similarly, the contention that the investigation is not done by
Deputy Superintendent of Police or any person to the said rank, is also
factually incorrect, as P.W.5, who is the Investigating Officer is of the rank
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of Assistant Commissioner / Deputy Superintendent of Police. Therefore,
none of the contentions made by the learned counsel appearing for the
appellant deserves acceptance by this Court and are accordingly rejected.
17. Therefore, I find the accused guilty for the offence under Section
8(c) r/w 20(b)(ii)(c) of the NDPS Act and confirm the conviction and
sentence of ten years rigorous imprisonment and a fine of Rs.1 lakh which
is a minimum punishment imposed by the Trial Court. However,
considering the background of the accused and the plea of inability to pay
the fine amount, considering the dictum of this Court in S.Edmand and
another vs the State, rep by the Intelligence Officer, N.C.B.South Zonal
Unit, Chennai (NCB E.No.48/1/08/2006-NCBMDS) (Crl.A.Nos.161 and
281 of 2014), N.Kandeepan and another vs The State, rep. by the
Intelligence Officer, N.C.B, South Zone, Chennai, (Crl.A.Nos.528 of 2013
and 552 of 2012), T.Udayachandran @ Ramesh vs The State, rep. by the
Intelligence Officer, V.Vettichelvan vs The Central rep. by the Senior
Intelligence Officer, Directorate of Revenue Intelligence, Rajapandi and
another Vs. The State, rep. by the Inspector of Police, Chennai (Crime
No.91 of 2012), and also the judgment of the Apex Court in the case of
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Crl.A.No.153 of 2021
Shahejadkhan Mahebubkhan Pathan Vs the State of Gujarat 4, I am of
the view that the default sentence for non-payment of fine can be reduced
from one year rigorous imprisonment to one month rigorous imprisonment.
However, it is made clear that the default sentence shall be undergone after
the substantive sentence is over.
18. Therefore, this criminal appeal is partly allowed on the following
terms:
(i) The conviction of the appellant / accused for the
offence under Section 8(c) r/w 20(b)(ii)(c) of the
NDPS Act and the substantive sentence and fine
imposed by the Trial court vide judgment dated
23.01.2021 in C.C.No.181 of 2018, are confirmed;
(ii) Only the default sentence for non-payment of fine is
modified as one month rigorous imprisonment instead
of one year rigorous imprisonment and it is made clear
that the default sentence shall start to run after the
completion of the substantive sentence of punishment
imposed on the accused;
4 CDJ 2012 MHC 1209
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Crl.A.No.153 of 2021
(iii) The accused is entitled to set off the period already
undergone and shall undergo the remaining period of
sentence as per law.
Index:Yes/No 15.09.2022
Speaking/Non-Speaking Order
drm
To
1. The Inspector of Police
NIB CID, Kancheepuram.
2. The Additional Special Court
Chennai. (Cases dealing with NDPS cases)
3. The Public Prosecutor, High Court of Madras.
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Crl.A.No.153 of 2021
D.BHARATHA CHAKRAVARTHY, J.
drm
Crl.A.No.153 of 2021
15.09.2022
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