Madras High Court
Gopinath vs The State Rep By on 21 September, 2023
Crl.A.(MD).No.846 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :21.09.2023
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
Crl.A.(MD).No.846 of 2022
Gopinath ... Petitioner
Vs.
The State rep by
The Inspector of Police,
Thanjavur Town West Police Station,
Thanjavur District.
(Crime No.110 of 2020) ... Respondent
PRAYER: Criminal Appeal filed under Section 374(2) of the Criminal
Procedure Code, to call for the entire records pertaining to the judgment
rendered by the learned Additional District Judge/Presiding Officer, Special
Court under Essential Commodities Act, Thanjavur in C.C.No.29 of 2021
vide order dated 18.11.2022 and set aside the same and consequently acquit
the appellant.
For Petitioner : Mr.M.Karunanithi
For Respondent : Mr.T.Senthil Kumar
Additional Public Prosecutor
Page 1 of 13
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Crl.A.(MD).No.846 of 2022
JUDGMENT
The learned Additional District Judge/Presiding Officer, Special
Court under Essential Commodities Act, Thanjavur convicted the appellant
for the offence punishable under Section 8(c) r/w 20(b)(ii)(B) of the NDPS
Act 1985 and imposed a sentence of four years rigorous imprisonment and
imposed a fine of Rs.10,000/- in default to undergo simple imprisonment for
a period of one year, by an impugned judgment in Spl.C.C.No.29 of 2021,
dated 18.11.2022. Challenging the same, the appellant filed this appeal.
2. P.W.5 is the Inspector of police, Thanjavur west police station,
on 28.02.2020, at about 08.10 pm., received a secret information regarding
the transportation of Ganja, by the appellant in the Mela Alangam, near
Kottai Valaivu. After recording the same in the general diary and also
informed to the higher officials and obtained permission, he proceeded
towards the place of occurrence with his team along with necessary
instruments at about 8:30, p.m. The said informer identified the appellant.
After the identification, P.W.5 and his team intercepted him and when he is
attempting to escape from the scene of occurrence, they caught hold him
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Crl.A.(MD).No.846 of 2022
and informed about the right of conducting a search in the presence of the
learned Magistrate or the Gazetted Officer, for which, he gave consent letter
under Ex.A1 to conduct search by P.W.5 himself. Thereafter, he handed over
the white colour polythene paper to P.W.5. PW5 on opening the same,
found that there is Ganja, weighing 1.200 kgs. After ascertaining the same,
he arrested the appellant under Ex.B3. On 09.45 p.m, the Mahazar was
prepared under Ex.P2.
2.1. Then, P.W.5 brought the appellant with recovered contraband,
samples to the police station and he registered FIR in Crime No.110 of 2020
for the offence under Section 8(c) r/w 20(b)(ii)(B) of the NDPS Act 1985.
The FIR was marked as Ex.B6. Thereafter, he went to the spot and prepared
the sketch and observation Mahazar in the presence of the witnesses
Radhakrishan(P.W.3) and Parthiban(P.W.4). Ex.P7 is the observation
Mahazar and Ex.P8 is the rough sketch. Subsequently, he sent the sealed
samples along with and remaining contraband under Form 91 to the
competent Court along with the appellant/accused at the time of the remand.
He sent a detailed Special report under section 57 of the NDPS Act, which
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Crl.A.(MD).No.846 of 2022
was marked as Ex.P11 to the higher officers. Thereafter, he was transferred
to some other place and hence, P.W.6 conducted investigation and obtained
chemical analysis report under Ex.P10 with the positive result of the
presence of cannabis and filed a final report before the Special Court under
Essential Commodities Act, Thanjavur District, for the offence under
Section under section 8(c) r/w 20(b)(ii)(B) of the NDPS Act 1985.
3. The learned trial Judge taken the case on file in Spl.C.C.No.29
of 2021 and after furnishing the copies under section 207 of Cr.P.C., framed
the necessary charges and questioned the accused. The appellant/accused
was not pleaded guilty and hence he stood for trial.
4. During trial, the prosecution has examined P.W.1 to P.W.6 and
exhibited Ex.P.1 to Ex.P.11, and M.O.1 to M.O.3 were produced. Thereafter,
the learned trial Judge put the question under Section 313 of Cr.P.C.,
relating to the incriminating materials available as against the appellant and
the same was denied as false. Thereafter the accused neither examined any
evidence nor produced any documents on his side
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Crl.A.(MD).No.846 of 2022
5. Then, the learned trial Judge, after considering the evidence,
arguments made by both the parties, convicted the appellant for the offence
punishable under Section 8(c) r/w 20(b)(ii)(B) of the NDPS Act 1985,
imposed the sentence of four years rigorous imprisonment and to pay a fine
of Rs.10,000/-, in default to undergo simple imprisonment for a period of
one year. Aggrieved over the same, the appellant preferred the present
appeal before this Court.
6.1 The learned counsel for the appellant submitted that the
learned trial Judge, without considering the material discrepancies between
P.W.1 and P.W.5 relating to the recovery of the contraband and also the
arrest of the appellant, erroneously convicted the appellant under section
8(c) r/w 20(b)(ii)(B) of the NDPS Act 1985. The trial Judge failed to
consider that P.W.5, did not depose about the compliance of section 42 of
the NDPS Act. Therefore, there is a violation of Section 42 of the NDPS
Act.
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Crl.A.(MD).No.846 of 2022
6.2. Number of contradiction and infirmities in the evidence of
P.W.5 and P.W.1 and the observation mahazar witness and the rough sketch
witness were turned hostile. Therefore, the prosecution failed to prove the
case as against the appellant beyond all reasonable doubt. Further, there is
no compliance of Section 57 of the NDPS Act and the Special Report as
mandated under Section 57 of the NDPS Act was not submitted to the
superior in time. In this case, P.W.5, who is the author of the report Ex.P.11
never deposed about the preparation of the report under Section 57 of the
Act. Hence, the learned counsel for the appellant submitted that there is
total violation of Sections 42 and 57of the Act. Even though the said
violation is not directory and cumulative of the violation of both Section,
other discrepancies and contradiction between the witnesses, clearly
revealed that the prosecution failed to prove the case beyond all reasonable
doubts. The learned counsel for the appellant further submitted that the
appellant is inside the jail for more than 10 months. There was no previous
antecedents against the accused and hence, he prays to allow this Appeal.
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Crl.A.(MD).No.846 of 2022
7. The Learned Additional Public Prosecutor submitted that
provision under section 42 of the Act is not complied with is not correct.
P.W.5 clearly recorded the same and informed to the jurisdictional Deputy
Superintendent of Police and the same was marked as Ex.P9. Hence there is
strict compliance of Section 42 of the Act. Even though Section 57 of the
Act is not marked through P.W.5, but the report under section 57 under Ex.P.
11 is prepared by P.W.5. The said omission is not affected the conviction
passed by the learned trial Judge. The argument of the appellant that there
was a contradiction between P.W.1 and P.W.5 regarding the search and
recovery of the contraband is concerned, there was no material contradiction
between the evidence and both evidence clearly spoke about the arrest of
the accused, recovery of the contraband and also the compliance of section
52 of the NDPS Act and hence, there is no need to interfere with the
judgment of the trial Judge.
8. This Court considered the rival submissions made on either side
and perused the materials available on record and also the impugned
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Crl.A.(MD).No.846 of 2022
judgement passed by the learned trial judge.
8.1 The only point to be decided in the appeal is whether the
conviction and sentence imposed by the Court below against the appellant
under Section 8(c) r/w 20(b)(ii)(B) of the NDPS Act 1985 is sustainable?
9. As stated above, P.W.5 received the information, which was
reduced to writing under Ex.P9 and the same was sent to the Deputy
Superintendent of Police, Thanjavur. It was also sent to the trial Court along
with the arrest memo of the accused on 28.02.2020 itself. Hence there was
no doubt over the compliance of Section 42 of the Act. The Special report
under Section 57 is also prepared by P.W.5 and the same was inadvertently
omitted to mark through P.W.5. Hence, it is marked through the
Investigating Officer/P.W.6. There was no question put to any of the
witnesses regarding the above said document. The same was properly
prepared and submitted to the Court below. The Deputy Superintendent of
Police has also acknowledged the same. In the said circumstances, it is to
be noted that the provisions of Section 57 of the Act is complied with. This
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Crl.A.(MD).No.846 of 2022
Court does not find any merit in the contention of the learned counsel for
the appellant that there is a contradiction between P.W.5 and P.W.1. The
evidence of P.W.1 and P.W.5 is corroborated with the material particulars
i.e., arrest of the accused and the recovery of the contraband. All the
contraband are properly packed and sample is also properly sealed.
Thereafter, Form 91 along with the contraband also immediately sent to the
concerned Court. There was no cross-examination doubting the recovery
and the procedure followed.
10. The entire cross examination of P.W.1 is relating to the non-
examination of the independent witnesses. It is a well settled law that the
non examination of independent witnesses is not a fatal to the prosecution,
when the evidence of P.W.1 and P.W.5 is cogent and trustworthy. The
chemical examiner also gave the finding that recovered the sample for
contraband consist of "cannabis". Both samples and that remaining
contraband also produced before the Court as physical evidence. In all
circumstances, the prosecution has clearly proved that the case against the
appellant for possession of Ganja weighing 1.200gms, and hence, the
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Crl.A.(MD).No.846 of 2022
learned trial Judge correctly passed the conviction under Section 8(c) r/w
20(b)(ii)(B) of the NDPS Act 1985 Act.
11. In the said circumstances, this court does not find any
infirmity in the judgement and conviction rendered by the court below.
Therefore, this Court confirms the conviction passed by the court below
under section 8(c) r/w 20(b)(ii)(B) of the NDPS Act 1985. The learned
counsel for the appellant seeks reduction of sentence. Considering the
quantity of contraband and also considering that there is no previous
antecedents and there is every chance of reformation of the appellant, this
Court is inclined to reduce the sentence from four years to ten months.
12. The conviction passed by the learned Additional District
Judge/ Presiding Officer, Special Court under Essential Commodities Act,
Thanjavur District, against the appellant in C.C.No.29 of 2021, dated
18.11.2022, for the offence punishable under Sections 8(c) r/w 20(b)(ii)(B)
of the NDPS Act 1985, is confirmed and sentence imposed upon him to
undergo four years rigorous imprisonment alone is reduced to ten
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Crl.A.(MD).No.846 of 2022
months rigorous imprisonment. The fine of Rs.10,000/- in default to
undergo simple imprisonment for one year imposed by the trial Court,
stands confirmed.
13. Accordingly, this Criminal Appeal is allowed in part.
21.09.2023
NCC :Yes/No
Index :Yes/No
Internet :Yes/No
sbn
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Crl.A.(MD).No.846 of 2022
To
1.The Inspector of Police,
Thanjavur Town West Police Station,
Thanjavur District.
2.TheAdditional District Judge/Presiding Officer,
Special Court under Essential Commodities Act,
Thanjavur.
3.The Section Officer,
Criminal Section (Records),
Madurai Bench of Madras High Court,
Madurai.
4. The Superintendent of Prison,
Central Jail,
Trichy.
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Crl.A.(MD).No.846 of 2022
K.K.RAMAKRISHNAN, J.
sbn
Crl.A.(MD).No.846 of 2023
21.09.2023
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