IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28/07/2003
CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
C.A.No.497 of 2002
Murugan .. Appellant
-Vs-
State
Inspector of Police
NIB/CID Thuthukudi .. Respondent
This criminal appeal is preferred under S.374 of The Code of Criminal
Procedure against the judgment of the Special District and Sessions Judge,
Madurai (Court constituted for N.D.P.S. Act cases, Madurai) made in C.C.No.33
of 1999 dated 10.9.2001.
!For Appellant : Mr.T.Munirathinam Naidu
^For Respondent : Mr.O.Srinath,
Government Advocate (Crl. Side)
:JUDGMENT
The sole accused, who stood charged, tried and convicted and sentenced
to undergo R.I. for 10 years under S.8(c) r/w 18 of the N.D.P.S. Act and to
pay a fine of Rs.1.00 lakh and in default to undergo R.I. for 2 years has
brought forth this appeal.
2. Short facts necessary for the disposal of this appeal are:
P.W.6 Beski, Sub Inspector, attached to NIB/CID, on receipt of an
information on 15.10.1998 at about 10.00 A.M. as to the transport of narcotic
substance, reduced the same into writing and informed the same by telephone to
P.W.7 Jeyakumar, Inspector. He accompanied by P.W.1 H.Velusamy, Village
Administrative Officer and his menial proceeded to the Central Bus Stand,
Tuticorin, where two persons were identified in front of Paul Sornam Lodge.
Of those two persons, the appellant/accused was one. In the presence of the
witnesses, they were enquired. The appellant and the other person informed
that they were in possession of two kilos of abin each. They were informed of
their right that they could be searched before a Magistrate or before a
gazetted Officer, and the same was replied not necessary. Under such
circumstances, in the presence of the witnesses, the appellant and the other
person produced the parcels what they kept secret in their waist, and the
parcel produced by the appellant was unfolded. It was weighed in the presence
of the witnesses. The samples were taken, and they were given mark, and the
rest was also put in a parcel, and they were also given mark as B1 and B2.
The seizure athatchi was prepared and signed by the witnesses. The accused
was arrested and remanded to judicial custody. A report was sent to the
Inspector, marked as Ex.P10 . The F.I.R., the samples and the rest of the
seized contraband all were produced before the concerned Magistrate’s Court on
the same day. On requisition, the samples were sent for analysis, while the
rest was returned to the Inspector to be kept in his custody. On 21.10.1 998,
the samples were sent for analysis, and they were accordingly done and found
to be a narcotic substance, according to the evidence of P.W.6. On completion
of the investigation, P.W.7 filed the charge sheet under S.8(c) r/w 18 of the
NDPS Act.
3. In order to prove the charge levelled against the appellant/
accused, the prosecution examined 7 witnesses and marked 12 exhibits and 3
material objects. When the appellant/accused was questioned under S.313 of
Cr.P.C. as to the incriminating circumstances found in the evidence of the
prosecution witnesses, he denied the same as false. No defence witness was
examined. After consideration of the rival submissions and materials
available, the trial Court found him guilty under S.8(c) r/w 18 of NDPS Act
and sentenced him as referred to above.
4. Arguing for the appellant, the learned Counsel interalia raised
the following points:
(a) The first line of attack was that the place where the appellant,
according to the prosecution, was intercepted and seizure was made, was the
place within the compound of one Sornam Lodge, and hence, even as per the
evidence available, it was a private place, and under such circumstances, the
mandatory provisions of S.42 of the NDPS Act should have been followed, but in
the instant case, it was not done so, and thus, it was fatal to the
prosecution case, and the lower Court should have rejected the case of the
prosecution. In order to substantiate the same, the learned Counsel relied on
the following decisions: (1) 1997 Crl.L.J. 513; (2) 1998 Crl.L.J. 132 and
(3) 2000 Crl.L. J. 1384.
(b) The second point that was raised by the learned Counsel was that
according to the prosecution case, the seizure was made on 15.10.98, and the
contraband seized along with the samples were produced before the concerned
Magistrate’s Court only on 16.10.98 and again produced before the said Court
on 20.10.98; and that there is no evidence to show in whose custody the
contraband was from 16.10.98 to 20.1 0.98.
(c) Even for sending the samples for analysis, a huge delay has been
noticed, and apart from that, 25 grams of samples was seized and sent for
analysis. But according to the evidence of P.W.5 Analyst, the samples that
was sent weighed only 19.16 gram, and there was no possibility of loss of
weight when once it was sealed and brought for analysis, and thus, the
prosecution has not explained the said deficiency.
(d) The final report of the entire prosecution case should have been
sent to the immediate superiors by the concerned Officer as required by S.57
of the NDPS Act. Though it was not mandatory, it has got to be taken into
consideration along with the other aspects of the matter, which would no doubt
affect the prosecution case. From the evidence of P.W.10, it would be clear
that no such report was received by him, and under the circumstances, the
lower Court should have rejected the case of the prosecution, and in view of
the above noncompliance of the mandatory provisions of the Act, the accused is
entitled for an acquittal.
5. In answer to the above contentions, the learned Government
Advocate (Criminal Side) would urge that the prosecution by proper and
sufficient evidence has proved that the appellant/accused was in possession of
the contraband namely 2 kilos of abin, and after following the procedural
formalities, they were seized; that the place of interception and seizure was
only a public place, and hence, no question would arise as to the compliance
of S.42 of the NDPS Act, but, in the circumstances, it would attract only S.43
of the Act; that so far as the full report was concerned, the provisions under
S.57 of the Act does not spell any mandate, but, in the instant case, there is
available evidence to show that actually such a report was perused by P.W.7,
the next day; that according to the prosecution case, 25 grams of abin was
taken as samples from the seized contraband and was produced before the
concerned Magistrate’s Court, which has accordingly been sent for analysis,
and in such circumstances, the fact to that extent has been proved, and hence,
the contention that 19.16 grams, according to P.W.1’s evidence, was available
at the time of test, which is less than what has been taken naturally cannot
be given much weight, as the prosecution agency had no hands to do anything in
the same, and therefore, the lower Court was perfectly correct in convicting
the appellant/accused, and the judgment of the lower Court has got to be
sustained.
6. This Court has given its sincere and earnest consideration on the
contentions put forth by either side. The Court is of the firm view that
there is no substance in this appeal.
7. The prosecution has proved through the evidence of P.W.1 V.A.O.,
an independent witness that on 15.10.1998 at about 10.00 A.M. P.W.1 after
informing the right of the appellant as to the search as contemplated under
S.50 of the NDPS Act made a search of the packet which he voluntarily produced
and found two kilos of opium which was seized in the presence of the witnesses
under the mahazar. Samples have been taken, and in doing so also, procedure
has been followed. All the samples and the contraband were produced before
the concerned Magistrate’s Court, and there is endorsement available to show
that on production, the rest of the contraband namely 1950 grams, the
remainder, except the sample, was returned to be kept in the custody of the
Department, and the same was in the custody of the Department till 20.10.19
98. It was produced before the said Court. Therefore it is futile on the
appellant’s side to state that there is no evidence as to the custody of the
same from the period 16.10.98 to 20.10.98. From the available evidence, it
would be clear that it was in the custody of the Department. The samples have
been subjected to test, and the narcotic substance has been found, as per the
evidence of P.W.5 Analyst. Regarding the loss after the samples were taken
and before the test was made, the Court cannot give much weight. In this
context, the decision of the Apex Court reported in AIR 1999 SUPREME COURT
2355 (PON ADITHAN V. DEPUTY DIRECTOR, NARCOTICS CONTROL BUREAU, MADRAS) and
relied on by the learned Government Advocate has got full application to the
case on hand. On that account, no doubt can be cast on the prosecution case.
8. The Court is unable to agree with the contention of the
appellant’s side that the search was made not in a public place, but within
the compound of the said lodge, and hence, mandatory provision of S.42 of the
NDPS Act should have been complied with, in view of the fact that from the
available materials and that the witnesses have clearly spoken to that effect.
That apart, it is found in the mahazar “giHa g!; epiyak;. EiHt[ thapy; mUnf
cs;s ghy; brhh;zk; yhl;;$; Kd;g[ itj; J”. This place where the search and
seizure was made cannot at any stretch of imagination be taken to be as a
private place. Needless to say that it was a public place. It has been held
by the Apex Court in a decision reported in (2002) 8 SUPREME COURT CASES 7 (
NARAYANASWAMY RAVISHANKAR VS. ASSTT. DIRECTOR, DIRECTORATE OF REVENUE
INTELLIGENCE) that if search and seizure are conducted in a public place, in
such case, S.43 of the NDPS Act is applicable and not S.42 of the Act, and
hence, the question of non-compliance, if any, of the provisions under S.42 of
the NDPS Act in the instant case was wholly irrelevant. Applying the said
decision of the Apex Court, the said contention of the appellant’s side does
not carry any substance.
9. In the light of the above reasons, the Court is of the view that
there is no merit in this appeal, and the same deserves to be dismissed.
However, the Court is of the opinion that the default sentence awarded by the
trial Court namely 2 years R.I. has got to be reduced.
10. Therefore, the default sentence of R.I. for 2 years imposed by
the lower Court is modified, and in default of payment of fine awarded by the
lower Court, the appellant/accused shall undergo R.I. for six months. In
other respects, the judgment of the lower Court is confirmed. With the above
modification, this criminal appeal is dismissed.
Index: Yes
Internet: Yes
To:
1) The Special District and Sessions Judge-NDPS, Madurai.
2) The Principal District and Sessions Judge, Madurai.
3) The Superintendent, Central Prison, Madurai.
4) The Public Prosecutor, High Court, Madras.
5) The D.I.G. of Police, Chennai 4.
6) Mr.O.Srinath, Government Advocate (Crl. Side), High Court
Madras
7) The Inspector of Police, NIB/CID, Thuthukudi.
vvk/