BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04/03/2010 CORAM THE HONOURABLE MR. JUSTICE T.MATHIVANAN Criminal Appeal (MD) No.53 of 2008 Mathi alias Mathiyalagan .. Appellant vs State, rep. by Inspector of Police, Ariyamangalam Police Station, Trichy District (Crime No.286/2003) .. Respondent Appeal against the judgment and conviction dated 27.11.2007, by the learned Additional District and Sessions Judge and Presiding Officer, Special Court for EC Act and NDPS Act Cases, Pudukkottai in C.C.No.336 of 2004. !For appellant ... M/s.S.Deenadhayalan. ^For respondent ... Mr.P.Rajendran Government Advocate (Crl.Side) :JUDGMENT
This memorandum of Criminal Appeal has been brought before this Court by
the appellant who was the accused in C.C.No.336 of 2004, on the file of the
learned Additional District and Sessions Judge (Special Court for EC Act and
NDPS Act Cases), Pudukkottai, challenging the judgment and conviction dated
27.11.2007 and made in C.C.No.336 of 2004 convicting the appellant under Section
8(c) read with 20(b)(ii)(B) of NDPS Act sentencing to undergo 66 days Rigorous
Imprisonment and imposing fine of Rs.3,000/-, in default, to undergo further two
weeks Rigorous Imprisonment.
2. For easy reference the appellant herein may hereinafter be referred to
as accused.
3. The facts and circumstances which giving rise to the memorandum of
criminal appeal may be summarised as briefly as follows:-
2.1. That on 14.11.2003, when P.W.3 the Sub Inspector of Police attached
to Ariamangalam Police Station was present in his office, had received a
discreet information from his informer saying that the accused Mathi @
Mathiyalagan had been transporting kanja for the past several days near the
hand-pump located on the northern bank of Uyyakondan canal. The informer had
also informed that on 14.11.2003, at about 10.00 a.m, he would be coming along
with kanja to the said place and if strict vigilance was kept, he would be
caught hold. The statement of informer (Ex.P3) was recorded by P.W.3 and after
getting permission from P.W.4, the Inspector of Police, attached to Ariamangalam
Police Station, at about 10.30 a.m. P.W.3 along with Head Constable 1044 and
Selection Grade Constable 1634 went to that place and kept vigilance. While so,
a person was coming there. On identification by the informer, P.W.3 had caught
hold of him and thereafter in the presence of P.W.1 Velayuthamkudi Village
Administrative Officer and one Agastin, Village menial he had informed the
accused about his right that he might be searched either in the presence of the
Special Judge or Government Gazetted Officer. For that, the accused had replied
that he might be searched in the presence of the witnesses. The search
information was marked as Ex.P4. Thereafter, P.W.3 had searched the yellow
cotton bag which was found in the possession of the accused. During the course
of the search, kanja weighing about 1.100 grms. was found in his possession.
Then, he took two samples weighing about 50 grms each packed and SHO seal was
affixed and at about 11.00 a.m. the contraband was seized in the presence of the
witnesses and the remaining contraband was also sealed. At about 12.00 noon,
the accused was arrested after issuing arrest memo under Ex.P5 and brought to
the Police Station along with the contraband and thereafter, P.W.3 had
registered a case in Crime No.286/2003 which was marked as Ex.P6, under Section
8(c) read with 20(b)(ii)(A) of NDPS Act. Then, the accused was produced before
P.W.4 – the Inspector of Police along with the contraband and P.W.3 had also
submitted a detailed report under Section 57 of the NDPS Act (Ex.P.7).
Thereafter, the P.W.4 took up the investigation, went to the place of
occurrence, examined the witnesses and recorded their statements. Then, he had
given a requisition to the Special Judge, requesting to send the samples to the
chemical examination. On 06.02.2004, he had received the analysis report and he
had also examined the chemical examiner and the Head Clerk attached to the
Special Court. He had also examined P.W.3 and after completion of his
investigation, he had laid a final report against the accused.
2.2. After the copies of the final report were issued to the accused, the
learned Special Judge, Pudukkottai had framed a charge under Section 8(c) read
with 20(b)(ii)(B) of NDPS Act against the accused. When the charges were
explained and questioned, the accused had pleaded innocent and claimed to be
tried.
2.3. In order to establish the case, the prosecuting agency had totally
examined four witnesses and during the course of their examination, Ex.P1 to
Ex.P7 and MOs 1 to 3 were marked. On a careful appreciation of the testimonies
of the witnesses as well as the documentary evidences, the learned Special Judge
has proceeded to pronounce the judgment on 27.11.2007, finding the accused
guilty under Section8(c) read with 20(b)(ii)(B) of NDPS Act convicting and
sentencing him to undergo RI for 66 days and to pay a fine of Rs.3,000/-, in
default, to undergo another 2 weeks of Rigorous Imprisonment. It was also
ordered that the period of incarceration already undergone by the accused would
be given set-off under Section 428 of IPC. Challenging the finding, conviction
and sentence of the Trial Court, the present memorandum of criminal appeal has
been filed before this Court by the accused.
3. The learned counsel appearing for the accused would submit that the
judgment of the Trial Court is suffered from several infirmities and as such it
has to be set aside. During the course of his argument, he has taken this Court
through the testimonies of P.W.1 to P.W.4 and identified several contradictions
and complications which arose during the investigation as well as during the
examination of the witnesses. The learned counsel has made stress on the
evidence of P.W.1 and submitted that P.W.1 during the course of his cross-
examination has admitted that the crime number which is found on M.O.3 was
written in the place of occurrence at the time of seizure. In this regard, he
would submit that mere writing of crime number on the contraband itself would go
to show that the contraband was not seized and packed at the place of occurrence
and if it was done so, the crime number would not have been written on the
material object M.O.3. He has also brought to the notice of this Court that as
per the evidence given by P.W.3, after the seizure of contraband in the presence
of P.W.1 and the Village menial, he went back to the Police Station and
registered the First Information Report and then only he could have written the
crime number on M.O.3. When such being the case, it is surprise to note as to
how the crime number came to be in existence when the contraband was seized and
packed. The existence of crime number on M.O.3 at the time of its seizure would
go to establish that every thing was done only in the Police Station and not in
the place of occurrence.
4. Insofar as this case is concerned, no independent witness was examined.
Further, the presence of P.W.1 Village Administrative Officer along with his
Village menial in the place of occurrence at the time of arrest and seizure of
the contraband is suspected. In Ex.P6, it is stated that the time of receipt of
the information by P.W.3 is 12.30 p.m. But P.W.3 would state in his evidence
that on 14.11.2003 at about 10.30 a.m. when he was present in the Police Station
he had received the discreet information from his informer and that at about
12.30 noon, he had produced the accused along with contraband before P.W.4.
5. While advancing his argument, the learned counsel has made stress on
the evidence given by the P.W.3 and Ex.P2 Chemical analysis report. In his
evidence P.W.3 would state that when the samples were prepared SHO seal was
affixed even in the presence of the witnesses. But, whereas in Ex.P2 it does
not have any reference to show that SHO seal was affixed in the samples which
were received by the Forensic Sciences Laboratory. The evidence given by P.W.2
chemical examiner would substantiate this fact. Moreover, the constable who had
taken the samples to the Forensic Science Laboratory had not been examined by
the prosecuting agency for the reasons best known to them. In this regard, the
learned counsel for the accused would submit that there is one day delay in
reaching contraband to the Court which has not been satisfactorily explained by
the prosecuting agency. In this regard, he has placed reliance upon the
decision reported in 1993 SCC (Cri) 1082 (Valsala v. State of Kerala) wherein it
is observed by the Apex Court that in absence of evidence to show that during
the long period (of over three months in this case) between the seizure and
production in Court, the seized article was in the custody of the Officer-in-
Charge of Police Station and that the same was kept under seal. It is also
observed that it was doubtful whether the very article that was seized was sent
to Chemical Examiner.
6. On coming to the present case on hand, since there is a delay in
reaching the contraband to the Court the non-examination of the Head Constable
who took the contraband to the Court has created doubt in the case of the
prosecution. As per the case of the prosecution, the contraband was seized on
14.11.2003, and it appears that it was reached the Court only on 17.11.2003.
Though no specific question was put to the Investigating Officer with regard to
the delay, it appears explicitly to the Court that it affects the very root of
the case of the prosecution.
7. The learned counsel appearing for the accused in order to fortify his
argument has also placed reliance upon a decision reported in 2001 Cri. L.J.4602
(Savitri @ Shoobha and others v. State of Chattisgarh). This Court has gone
through the judgment delivered by the Trial Court Judge and in the opinion of
this Court it appears that the Trial Judge has accepted the prosecution case in
toto without applying his own mind into the contradictions and infirmities
arising from the case of the prosecution. Having given careful consideration to
the available material on record, this Court is of the considered view that the
prosecuting agency has miserably failed to bring home the guilt of the accused
and therefore, the accused shall necessarily have to be acquitted.
8. In the result, this Criminal Appeal is allowed. The judgment of the
Trial Court is set aside and the accused is set at liberty. The fine amount paid
by the accused shall be refunded to him. The bail bond, if any, executed by him
and on behalf of the accused are cancelled.
srm