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Madras High Court
Jeyapal vs State Through Inspector Of Police … on 2 August, 2000
Equivalent citations: 2000 (3) CTC 392, 2001 (75) ECC 744
Bench: R Balasubramanian


ORDER

1. The appellant in this appeal stands convicted in C.C.No.27 of 1994 on the file of the Special Court for NDPS cases, Thanjavur for an offence punishable under section 20(b)(i) of the NDPS Act and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs 3000 carrying a default sentence. The correctness of that judgment is questioned in this appeal before this Court. Heard Mr.A. PAckiaraj learned counsel appearing for the appellant as well as Mr.R. Karthikeyan learned Government Advocate appearing on the criminal side for the respondent/State.

2. P.W.1 is the Village Administrative Officer. P.W.3 is the Inspector of
Police and he is the Investigating Officer as well. P.W.2 is the court clerk, who
speaks about the receipt of the case property and forwarding the same to the
laboratory for test. The evidence of P.Ws.l and 3 would show that P.W.3 was
on a routine prohibition raid on 11.11.93; at about 4.00 p.m., they saw the
accused coming with a head load at Kammankoyil Street, Padhirikuppam
within the jurisdiction of the Investigating Police Officer; on suspicion, he was
questioned and he admitted that he was in possession of ganja; immediately
the head load of sack was brought down and on examination, it was found to
contain ganja leaves and flowers, the weighment of which was 16 Kgs; M.O.1
is the gunny bag M.O.2 is the sample taken and M.O.3 is the balance of the
drug after taking sample.

3. Ex.P. 1, is the mahazar prepared in the presence of P. W. 1 and another. It shows the recovery of 16 Kgs. of ganja leaves, flowers and others. Ex.P.2 is the chemical examiner’s report and it shows that the sample tested by him was ganja. The evidence of P.Ws.l and 3 would clinchingly show that the accused was in possession of ganja which was recovered under Ex.P.l. The chemical examiner’s report also shows the drug seized as ganja. Therefore on facts, no exception could be taken to the finding of guilt rendered by the learned trial Judge. However the learned counsel appearing for the appellant would

strenuously contend that the requirement of section 57 of the N.D.P.S. Act is not shown to have been complied with at all and section 57, being mandatory in nature, the failure to comply with the same, would result in vitiating the entire trial itself. For this purpose the learned counsel appearing for the appellant relied upon the following two judgments:

(a) Mohindar Kumar v. State, Panaji, Goa, 1999 S.C.C. (Cri.) 79 (coram of three Judges); and (b) Thandi Ram v. State of Haryana, 2000 S.C.C. (Cri.) 189 (coram of two Judges);

In this context, he drew my attention to the evidence of P.W.3 to sustain his argument that section 57 of the N.D.P.S. Act had not been complied with. Contending contra, Mr.R.Karthikeyan learned Government Advocate would contend, relying upon State of Punjab v. Balbir Singh, , that section 57 by itself is not mandatory; any failure to comply with that section would affect the case of the prosecution only, when the court finds that a prejudice has been caused to the accused and only then it has a bearing on the appreciation of evidence regarding the arrest or seizure as well as on merits of the case. The learned Government Advocate would also contend that the two judgments brought to the notice of this court by the learned counsel for the appellant proceed on the basis that the judgment reported in State of Punjab v. Balbir Singh, declares the law that section 57 is mandatory and any failure to comply with the same, would vitiate the trial.

4. In the light of the arguments advanced namely, whether the requirement of section 57 of the N.D.P.S. Act had been complied with or not, I went through the evidence of P.W.3, who is the Investigating Officer in this case. He would state in his evidence in chief as follows:

“Arrested the accused; prepared Ex.P.l mahazar; examined the witnesses; came to the police station and registered the offence in Crime No.911/93 under section 20(b)(i) of the N.D.P.S. Act; Ex.P.3 is the printed F.I.R. and on the same day, he had informed the Deputy Superintendent of Police with reference to that, in his report.”

In cross-examination P.W.3’s evidence is to the following effect:

“I have not sent a copy of the report sent to the Deputy Superintendent of Police, to the court along with the printed F.I.R. or with the case properties; I do not have a copy of the report in my case diary; I deny that I have not sent any report under section 57 of the N.D.P.S. Act to the Deputy Superintendent of Police and that is the reason I am not keeping any proof of the same in my file.”

Ex.P.3 is the printed First Information Report. It contains all the details relating to the case namely, the following:

“The police party being on a prohibition raid; the accused found coming at that time with a head load; the accused being examined and he admitting that he was in possession of ganja in the gunny bag; recovery of ganja in the presence of witnesses and the weighment of the same; taking sample from and

out of the total quantity; the arrest of the accused; reaching the police station with the arrested accused ‘and the case property; registering the crime in Crime No.911 OF 1993 for an offence punishable under section 20(b)(i) of the N.D.P.S. Act and handing over the accused to the constable.”

5. The portion extracted above as found in the F.I.R., according to me,
contains a report of all the particulars relating to the arrest and seizure. Under
section 57 of the N.D.P.S. Act, the Investigating Officer, shall send a full
report of all the particulars regarding the arrest or seizure, to his immediate
superior official. P.W.3 in his evidence had stated that” he had sent the report.

The trial court had also accepted it. At the foot of Ex.P.3 (F.I.R.) it is found
mentioned as follows:

“A’copy of the F.I.R. and the mahazar had been sent to the court of the Judicial Magistrate No.l as well as to the concerned officials.”

The mahazar is marked as Ex.P.1 in this case and it also contains the recovery of the ganja from the accused in the presence of witnesses. Section 57 of the N.D.P.S. Act does not prescribe any particular form for sending the report, In the absence of any particular format having been prescribed, the arresting/seizing officer, is entitled to adopt his own mode of sending a report to his higher officials. The F.I.R. contains a noting at the foot of it above the signature of the Investigating Officer that a copy of the F.I.R. as well as the mahazar had been sent to the concerned officials, besides being sent to the court and since the F.I.R. and the mahazar contains all the details relating to the arrest and seizure, I am of the opinion that sending of the F.I.R. and the mahazar itself to the concerned official would be a sufficient compliance of section 57 of the said Act. Concerned Official would only mean the immediate superior of P.W.3. The evidence available in this case would disclose that the copy of the F.I.R. and the mahazar had been sent to the concerned official.

6. In Nathu Ram v. State, 1990 Cri.L.J. 1806 Delhi a learned single Judge had held as follows:

“8. Learned counsel for the appellant then argued that the prosecution also failed to comply with the provisions of section 57 of the Act. Section 57 of the Act contemplates that whenever any person makes any arrest or seizure under this Act, he shall, within 48 hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior. In my opinion, it cannot be said that there was non-compliance of the provisions of this Section by the prosecution. The investigation of this case was conducted by S.I.Jai Singh, P.W.12 and he brought the case property as well as the appellant at the police station, Pahar Ganja before the officer-in-charge of the police station. The F.I.R. carbon copy of which is Ex. P. W. 7/A was recorded at the police station at 2.50 p.m. on 13.8.86. F.I.R. contains all the particulars about the appellant as well as the case property seized. Copies of the F.I.R. were forwarded to the area Magistrate as well as other Superior Police Officers. Therefore, I am of the view that the copies of the F.I.R. being forwarded to various superior officers, it cannot be said that there was non-compliance with provisions of section 57 of the Act. In fact, the F.I.R. contains full report of all the particulars of the arrest and seizure.”

Therefore on facts I find that the Investigating Officer had complied with section 57 of the N.D.P.S. Act, in letter and spirit. There is no reason at all to doubt the evidence of P.W.3 that he had sent a report to the higher official, in the context of the recital in Ex.P.l, that a copy of Ex.P.l and the mahazar had been sent to the concerned officials. Under these circumstances, I am not inclined to agree with the argument of the learned counsel for the appellant that this requirement of section 57 of the N.D.P.S. Act had not been complied with.

7. The learned Government Advocate would contend that, though in the two judgments of the Hon’ble Supreme Court of India brought to the notice of this court by the learned counsel for the appellant and referred to supra it is held that the requirement of section 57 of the N.D.P.S.Act is mandatory and any infraction of the same would vitiate the trial itself, for which proposition those two judgments rely upon an earlier judgment of the Hon’ble Supreme Court of India itself in the case reported in State of Punjab v. Balbir Singh, , yet, factually the judgment reported in State of Punjab v. Balbir Singh, dose not lay down the law as decided in the latter two judgments of the Hon’ble Supreme Court of India referred to supra. However in view of my conclusion that in the present case the Investigating Agency had complied with the requirement of section 57 of the N.D.P.S. Act, I am of the opinion that the contention raised on behalf of the appellant relying upon the two judgments of the Hon’ble Supreme Court of India as well as the contention of the learned Government Advocate based on the judgment of the Hon’ble Supreme Court of India in the case reported in State of Punjab v. Balbir Singh, , do not really arise for consideration in this appeal.

8. Lastly it is argued by the learned counsel for the appellant that some leniency may be shown while considering the question of punishment. The learned counsel would invite my attention to the fact that the convicted accused was in prison from 11.11.93 till 23.9.94, on which date he was released on bail. This means, he had been in jail for roughly ten months. The accused had also paid the fine amount. Heard Mr.R.Karthikeyan learned Government Advocate appearing for the respondent/State on this aspect. Going by the totality of the circumstances available in this case, I am of the opinion that interest of justice would be met if the sentence of imprisonment is reduced to the period already undergone, together with a fine of Rs.3,000, to be paid by the accused within eight weeks from the date of receipt of the steno copy of this order in this appeal. If the additional fine amount is not paid within the time fixed by (his Court, then the accused shall suffer six months rigorous imprisonment as a default imprisonment. Accordingly with the above modification in the question of sentence alone, this appeal is dismissed. Consequently the connected C.M.P. is also dismissed.


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