IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07/07/2003
CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
C.A.No.594 of 1999
Nallusamy .. Appellant
-Vs-
The State represented
by the Inspector,
N.D.P.C.I.D., Trichy
Police Station
Cr. No.4/98 .. Respondent
This criminal appeal is preferred under S.374(2) of The Code of
Criminal Procedure against the judgment of the Special Judge (Essential
Commodities) (District Judge), Pudukottai in C.C.No.94 of 1998 dated 1
8.1.1999.
!For Appellant : Mr.K.Venkatasubramaniam
^For Respondent : Mr.V.Jaya Prakash Narayanan
Government Advocate (Crl. Side)
:JUDGMENT
The sole accused, who stood charged, tried and found guilty under
S.20(b)(1) of the N.D.P.S. Act and sentenced to undergo R.I. for 4 years and
to pay a fine of Rs.15,000/- in default of which to undergo 9 months R.I., has
preferred this appeal.
2. The fact necessary for the disposal of this appeal can be stated
as follows:
On 17.1.1998 at about 8.30 A.M., P.W.3 N.Muthusamy, a Head Constable
attached to N.I.B. C.I.D., Trichy received an information from his informant
relating to the possession of ganja by the accused at Trichy Bus Stand. After
reducing the same into writing marked as Ex.P4, the same was sent to P.W.4
R.Rajagopal, Inspector of Police, attached to N.I.B. C.I.D. Accompanied by
P.W.1 Bakthavatchalam, P.W.3 proceeded to the Central Bus Stand, Trichy and
found the accused along with a plastic bag. P.W.3 informed the accused as to
his right to be searched as contemplated under S.50 of the N.D.P.S. Act.
But, the accused replied that it was not necessary, and in the presence of
independent witnesses one of whom was examined as P.W.2, L.Mohan, the accused
was searched and found in possession of 3 kgs. of ganja. Two samples out of
the same 50 grams each were taken in front of P.W.2. The entire contraband
was seized under Ex.P2 mahazar. The accused was arrested at about 12.30 A.M.
and brought to N.I.B. C.I.D. Office at Trichy. A case was registered in
Crime No.4/98 under S.8(c) r/w 20(b)(1) of N.D.P.S. Act. Ex.P6 printed
F.I.R. was prepared and sent to the concerned Magistrate’s Court. A detailed
report as contemplated under S.57 of the NDPS Act was prepared under Ex.P7 and
sent to P.W.4. A copy of the report was also sent to the Judicial
Magistrate’s Court concerned under Ex.P8. The form 95 was prepared, and the
accused was remanded to judicial custody along with the documents and
properties. On 19.1.1998, P.W.4 proceeded to the site of occurrence,
inspected the same, made an investigation, recorded the statement of P.Ws.1 to
3 and one Bakthavatchalam. The sample that was taken out of the contraband
was sent for chemical analysis on the request made by P.W.4. The Chemical
Analysis report under Ex.P9 was received, which indicated that the sample
contained ganja, a narcotic substance. On completion of the investigation, a
charge sheet was laid on 16.2.1998 by P.W.4.
3. In order to prove the charges against the appellant/accused, 5
witnesses were examined and 10 exhibits and 3 material objects were marked on
the side of the prosecution. When the appellant was questioned under S.313 of
Cr.P.C. as to the incriminating circumstances found in the evidence of the
prosecution witnesses, he flatly denied the same. No defence witness was
examined. After consideration of the rival submissions and scrutiny of the
materials available, the trial Court has found him guilty under S.20(b)(1) of
the NDPS Act and convicted and sentenced him to undergo imprisonment, as
referred to above.
4. Advancing his arguments for the appellant, the learned Counsel
raised the following two points:
(i) According to the prosecution case, the appellant/accused was found
in possession of the contraband namely 3 kgs. of ganja on 17.1.199 8 at about
8.30 A.M. at the Central Bus Stand, Trichy, which is ordinarily a busy place.
But, the prosecution has chosen to examine only P.W.2 as an eyewitness. His
evidence was not corroborated by any other evidence, and hence, it is a strong
flaw on the prosecution case.
(ii) Before the search was made what was expected to be procedurally
done under S.50 of the NDPS Act has not been strictly complied with.
The learned Counsel would submit that on the above two grounds, the appeal has
got to be allowed, and the judgment of the lower Court has to be set aside,
and the appellant be set at liberty.
5. Countering to the above contentions, the learned Government
Advocate (Criminal Side) in his reply would submit that a perusal and scrutiny
of the entire materials and the available evidence would clearly show that the
accused was clearly informed about his right available under S.50 of the
N.D.P.S. Act; that the accused was arrested and searched in the presence of
two witnesses, of whom P.W.2 was one, and his evidence would clearly reveal
the truth of the arrest and search made, and under such circumstances, the
appeal carries no merit, and the same has got to be dismissed.
6. After careful consideration of the rival submissions and the close
scrutiny of the available materials, the Court is unable to see any merit in
this appeal.
7. As narrated above, P.W.3, on an information proceeded to the
Central Bus Stand, Trichy on 17.1.1998 noon hours along with P.W.1. The
appellant/accused was informed about his right to be searched in the presence
of a Judicial Magistrate or before a gazetted officer, which was answered that
the same was not necessary and the search could be made. A search has been
procedurally conducted by P.W.3 in the presence of two witnesses, of whom
P.W.2 was an independent witness examined before the trial Court. The
evidence of P.W.2, an independent witness, when scrutinised, has inspired the
confidence of the Court. No circumstance or reason has been brought forth to
suspect his testimony. Hence, the lower Court was perfectly right in placing
reliance on the evidence of P.W.2.
8. The other procedural formalities namely sending the detailed
report to P.W.4 Inspector immediately as contemplated under S.57 of the
N.D.P.S. Act have also been complied with. The printed F.I.R. was
immediately sent to the concerned Magistrate’s Court. The arrested accused
was also sent to the concerned Magistrate’s Court for remand along with the
contraband. The sample taken at the place of occurrence has also been
despatched to the Analyst through the concerned Magistrate’s Court. The
Analyst’s report is also filed as Ex.P9, which would clearly speak about that
the sample contained ganja, a narcotic substance, and thus, the prosecution
has clearly proved that the appellant/accused at the time of arrest and
seizure was in illegal possession of 3 kgs. of ganja. Under such
circumstances, the law would expect the rebuttal of the presumption under S.35
of the N.D.P.S. Act, but the accused has miserably failed to do so, and
hence, there is no hesitation for the Court to hold that he was in illegal
possession of 3 kgs. of ganja at the time of occurrence, and the prosecution
has proved its case beyond reasonable doubt. The Court is of the view that
there is nothing to interfere either in the conviction or in the sentence
awarded by the Court below.
9. In the result, this criminal appeal would fail, and the same is
dismissed, confirming the judgment of the lower Court.
Index: Yes
Internet: Yes
nsv/
To:
1) The Special District Judge for Essential Commodities
Act cases, Pudukkottai.
2) The Superintendent, Central Prison, Trichy.
3) The Public Prosecutor, High Court, Madras.
4) The D.I.G. of Police, Chennai 4.
5) Mr.V.Jaya Prakash Narayanan, Government Advocate
(Crl. Side), High Court, Madras.
6) The Inspector, NDPCID, Trichy.