{"id":23070,"date":"2009-10-14T00:00:00","date_gmt":"2009-10-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/v-vettichelvan-vs-central-rep-by-on-14-october-2009"},"modified":"2019-01-18T10:09:13","modified_gmt":"2019-01-18T04:39:13","slug":"v-vettichelvan-vs-central-rep-by-on-14-october-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/v-vettichelvan-vs-central-rep-by-on-14-october-2009","title":{"rendered":"V.Vettichelvan vs Central Rep. By on 14 October, 2009"},"content":{"rendered":"
Madras High Court<\/div>\n
V.Vettichelvan vs Central Rep. By on 14 October, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED : 14\/10\/2009\n\nCORAM\nTHE HONOURABLE MR.JUSTICE C.T.SELVAM\n\nCrl.A.(MD)No.116 of 2006\n\nV.Vettichelvan\t\t\t\t.. Appellant\/\n\t\t\t\t\t   Accused\n\t\nVs\n\nCentral rep. by\nthe Senior Intelligence Officer,\nDirectorate of Revenue Intelligence,\n17, Reynolds Road,\nCantonment,\nTiruchy - 620 001.\n(F.No.VIII\/48\/2\/2004-DRI\/TRY)\t\t.. Respondent\/\n\t\t\t\t\t   Complainant\n\nPrayer\n\nCriminal appeal is filed under Section 374 of Cr.P.C., against the\njudgment dated 05.01.2006 passed in C.C.No.334 of 2004 by the learned Additional\nSessions Judge cum Special Judge for EC and NDPS Act Cases, Pudukottai.\n\n!For appellant\t   ...\t Mr.W.Peter Ramesh Kumar\n^For respondent\t   ...\t Mr.Arul Vadivel @ Sekar\n\t\t\t Special Public Prosecutor\n\n                    * * * * *\n\n:JUDGMENT\n<\/pre>\n
\tThis appeal arises against the Judgment in C.C.No.334 of 2004 passed on
\n05.01.2006 by the learned Additional Sessions Judge cum Special Judge for EC and
\nNDPS Act Cases, Pudukottai.  The learned Additional Sessions Judge cum Special
\nJudge for EC and NDPS Act Cases, Pudukottai was pleased to convict the sole
\naccused for offence under Section 8(c) r\/w. 21(c) of the N.D.P.S. Act.\n<\/p>\n
\t2. The case of the prosecution is as follows:\n<\/p>\n
\tThe accused, who was intercepted while driving in blue colour Toyota
\nQualis Car bearing Registration No.TN-10-B-3747 at the Trichy-Pudukkottai
\nhighway and close to the Airport, at about 02.45 p.m. on 31.01.2004 was found to
\nbe in possession of 11.364 Kgs. of heroin and accordingly was charged for
\noffence under Section 8(c) r\/w. 21(c) of the N.D.P.S. Act.  The prosecution
\nexaminated 6 witnesses, marked 28 exhibits and 20 material objects.\n<\/p>\n
\t3. P.W.1, Karunakaran, who was the Central Revenue Intelligence Officer,
\nTrichy received a secret message on 31.01.2004 at 09.00 am that a Srilankan
\nwould be carrying about 10 Kgs. of heroin in a blue colour Qualis car bearing
\nRegistration No.TN-10-B-3747 in a clandestine manner and that he was likely to
\nbe on the Trichy-Pudukkottai Road between 2.00 to 4.00 p.m.  He prepared a
\nreport Ex.P1 and forwarded the same to his superior officer P.W.6, Earnest Ravi.
\nThe report of the secret information received by him is Ex.P1.  P.W.6 received
\nand signed the same.  The higher officials in Chennai were informed, who came
\nover to Trichy by flight.  Then around 01.30 p.m., P.W.1, P.W.6, Senior Revenue
\nIntelligence Officials and the Trichy Customs officials appeared at the
\nPudukkottai-Trichy road and all gathered at about 01.45 p.m.  They informed
\nP.W.2, Suresh and one Chandrasekaran, M.C. of who they were and why they were
\npresent and asked them to be witnesses for the same.  Such persons agreed.  By
\nabout 02.45 p.m., the blue colour Toyoto Qualis Car bearing Registration No.TN-
\n10-B-3747 came on the scene and the accused were driving the same.  When asked
\nto stop, the accused stopped the vehicle.\n<\/p>\n
\t4. On questioning, he has informed that his name was Vettiselvan and he
\nwas travelling from Chennai to Pudukottai. When he was asked about possession of
\nNarcotic substances, he accepted and from the rear of the car took and handed
\nover 9 packets of heroin. The accused was informed of the need to examine him
\nand of his right to be examined in the presence of P.W.2, C.Suresh and one
\nChandrasekaran by PW-1 and PW-6. The accused informed that he could be examined
\nby such persons themselves and gave a written note to that effect, marked as
\nEx.P.2. Ex.P.2 was signed by the independent witnesses, P.W.1 and also the
\naccused. The packets were opened.  They contained a brown powder. Samples from
\neach packet was tested. The contraband goods and the vehicle were seized by
\nP.W.1.\n<\/p>\n
\t5. The Mahazar, Ex.P.3 prepared at 04.00 p.m. was signed by the accused,
\nthe witnesses and P.W.1. The accused and the seized articles were brought to the
\noffice of the Director of Intelligence at about 04.30 pm.  The seized packets
\nwere marked as P.1 to P.9 and 2 samples of 5 gms. each, were taken from each of
\nthe packets in polythene covers marked as P1S1 to P9S1, P1S2 to P9S2. The
\nmaterials used by the accused for packing contraband goods were placed in a
\nseparate cover bearing Sl.No.P.10. The seal of P.W.6 was affixed on the sample
\npackets that were taken as also the cloth paper cover. The same were also signed
\nby the accused and the independent witnesses.\n<\/p>\n
\t6. After this, Mahazar Ex.P.4 recording the details of the materials
\nseized were prepared at about 6.30 p.m. The sample packets P1S2 to P9S2 are the
\nM.Os.1 to 9. P1S1 to P9S1 are the packets of samples which were sent for
\nchemical examination and marked as M.Os.10 to 18. M.O.19 contains the wrapping
\nmaterial used by the accused.  M.Os.2 to 28 samples were taken in accordance
\nwith Section 58 of the N.D.P.S. Act.  The blue colour Toyoto Qualis car bearing
\nRegistration No.TN-10-B-3747 is M.O.29. Physical examination of the accused
\nrevealed no incriminating materials. On examination of the car nothing further
\nwas found. P.W.6 examined the accused, who gave a voluntary statement which was
\nrecorded under Section 67 of the N.D.P.S. Act. Under such statement written in
\nhis own handwriting, the accused admitted his offence. Such statement is marked
\nas Ex.P.22.\n<\/p>\n
\t7. Under requisite forms Ex.P5 and Ex.P6, by P.W.1 the vehicle and the
\nnarcotic substances were placed in the customs godown. The accused was arrested
\nat 06.00 a.m. on 01.02.2004 by P.W.6. Ex.P.23 is the copy of the arrest memo.
\nThe accused, vehicle and the contraband goods were produced before the learned
\nJudicial Magistrate, Trichy who remanded the accused to custody and directed the
\nproduction of the contraband goods and the vehicle before the trial court. The
\nconnected Form.95 is Ex.P.24. The relatives of the accused were informed and the
\ncopy of the telegram is Ex.P.25. The telegram receipt is Ex.P.26. The report of
\nthe senior officials under Section 57 of N.D.P.S. Act is Ex.P.27. At 06.00 p.m.
\non 31.02.2004, P.W.6 instructed the Revenue Intelligence Officer P.W.4 to
\nconduct search on the house where the accused resided D.No.A-26\/1,
\nThiru.Vi.Ka.Square, MMDA Colony,  Chennai – 106 under Exh.P-10. Acting
\nthereunder P.W.1 and one other officer by name Raman took an independent
\nwitnesses by name Maharaj Singh and Jeyaprakasam, went to the house at about 5
\np.m., where they found one Lakshmanan P.W.4 and informed the purpose.
\nLakshmanan informed that the accused had taken the house on rent. The house was
\nsearched in the presence of the independent witnesses and Ex.P.11, a Srilankan
\npassport issued in the name of the accused was found.  Requisite mahazar for
\nrecovery of the passport and search of the house was prepared under Ex.P.12
\nwhich was signed by the independent witnesses and the said Lakshmanan.\n<\/p>\n
\t8. Again on instructions of P.W.6, P.W.4 required the owner of the Qualis
\ncar bearing Registration No.TN-10-B-3747, A.Selvarathinam to appear before him
\non 09.02.2004 under summons dated 05.02.2004, which was issued under Section 67
\nof the N.D.P.S. Act.  Copy of the summon is Ex.P.13.  The said Selvarathinam
\nappeared before P.W.4 on 09.02.2004 and informed under Ex.P14, that the Qualis
\ncar had been given on hire to the accused for two days from 30.01.2004.  Ex.P.15
\nis the photo of the accused, which was identified by the said Selvarathinam
\nunder his signature.  On 12.02.2004, the said Selvarathinam handed over the copy
\nof the vehicle registration certificate, Ex.P.17 along with his hand-written
\nletter Ex.P.16.  P.W.6 prepared a test memo through Intelligence Officer, one
\nRajasekar for samples P1S1 to P9S1 and sent the same for chemical examination,
\nunder Ex.P.9.\n<\/p>\n
\t9. P.W.3, the Assistant Chemical Examiner at the Customs Laboratory on
\n03.02.2004 received samples P1S1 to P9S1 samples under deposit memo Ex.P8.  He
\ncompared the seals of requisition letter Ex.P9 with those on the sample packets
\nand found the same to be in order.  After examination, he issued a report Ex.P.7
\nthat the sample contained Diacetyl Morphine.  The remaining articles were sealed
\nand sent through P.W.1 to the Trichy Revenue Intelligence Unit.  The seized
\nnarcotic substances was dealt with in keeping with Section 52-A of the N.D.P.S.
\nAct, by the learned Judicial Magistrate, Pudukkottai.  Due procedure was
\nobserved and the record of proceedings marked as Ex.P.18.  The learned Judicial
\nMagistrate’s report is Ex.P.19.  The 15 photographs taken are Ex.P.20 series and
\nthe negatives are Ex.P.21 series.  On completion of investigation, a final
\nreport was filed by P.W.6 against the accused for offences under Section 8(c)
\nr\/w.27,28 and 29 of the N.D.P.S. Act, on 01.06.2004.  On questioning, the
\naccused denied the offences.  No witnesses were examined on behalf of the
\naccused nor were any material objects were marked.\n<\/p>\n
\t10. The trial Court on examination of the witnesses and materials
\navailable before it and also on perusal of the records, found the accused guilty
\nand convicted and sentenced him to undergo rigorous imprisonment for 11 years
\nand to pay fine of Rs.1,00,000\/- (Rupees one lakh only) in default to undergo
\nrigorous imprisonment for two years.\n<\/p>\n
\t11. Heard the learned counsel for the appellant and the learned Special
\nPublic Prosecutor.\n<\/p>\n
 \t12. The learned counsel for the appellant\/accused submits that the very
\nrecovery said to be effected in this case is doubtful, since according to P.W.1,
\nCentral Revenue Intelligence Officer, the accused took the contraband from the
\ninside panel at the rear of the car and handed over the same, whereas in cross
\nhe stated that the officers had recovered the same.  It was the evidence of
\nP.W.2 that the accused took the contraband and handed over to the Senior
\nIntelligence Officer where as in cross he stated that  the officials recovered
\nthe contraband from the right side panel of the rear door of the vehicle.  The
\nlearned counsel for the appellant\/accused submits that the contraband seized was
\nin private hands for three days and there is no explanation by the prosecution
\nas to why that was so.  The accused was allegedly a tenant, who had used the
\nvehicle of belonging to another.  But the owner of the vehicle had not been
\nexamined.  The learned counsel for the appellant\/accused drew the attention of
\nthis Court to the evidence of P.W.2 to the effect that the accused was not the
\nsole occupant of the car, in which the contraband was found.  The learned
\ncounsel also pleads the non-compliance and violation of the mandatory provisions
\ncontained in Section 42(1)(2), 43 and 50 of the N.D.P.S. Act.  The learned
\ncounsel impresses upon this Court that in this case seizure and investigation
\ninto the case was done by one and the same official and that the same was
\nillegal.  The final submission of the learned counsel is that the accused, who
\nis now married has already undergone six years imprisonment, which should be
\nsufficient punishment, even if he is found guilty.  It is open to this Court to
\nshow leniency on the question of sentence in default of payment of fine and that
\nthis Court, in the circumstances of the case would do so.\n<\/p>\n
\t13. The learned counsel for the petitioner relied on the decisions of this
\nCourt dated 15.06.2001 in Crl.A.No.825 of 1995, Thalavoi v. State represented by
\nInspector of Police, Cheranmahadevi Police Station, Cheranmahadevi, 1995 The
\nMadras Law Journal Reports (Criminal) 410 and the Hon’ble Supreme Court in Megha
\nSingh v. State of Haryana,<\/a> 1997 Supreme Court Cases(Cri) 267 for the proposition
\nthat the seizure officer cannot be Investigating Officer of the case.  On the
\ncontention on the contraband being in private hands for three days, the learned
\ncounsel relied on the decision of Calcutta High Court in Samir Ghosh v. State of
\nWest Bengal, 2001(1) Crimes 505 and submitted that the possibility of
\nsubstitution of what was seized towards rendering him guilty could not be ruled
\nout.\n<\/p>\n
\t14. The learned counsel relied upon decisions of this Court in Sundaresan
\nalias Meganathan alias Mega v. State represented by the Inspector of Police, R4,
\nPondy Bazaar Police Station, T.Nagar, Madras – 17, 1993 L.W.(Crl.)371, Panjab
\nand Haryana High Court in Ved Parkash alias Tatoo v. State of Haryana, 1993(1)
\nCrimes 101, Hon’ble Supreme Court in State of Rajasthan v. gopal, 1998 Supreme
\nCourt Cases (Cri) 1587, State of Orissa v. Laxman Jena,<\/a> 2002(4) Crimes 29 (SC)
\nand Orissa High Court in Dwarika @ Tarini Patra and Anr. v. State of Orissa,
\n2001(1) Crime 540 to impress upon this Court to the importance of compliance of
\nmandatory provisions of Sections 41, 42 and 50 of NDPS Act.\n<\/p>\n
\t15. He also relied on the decision of the Hon’ble Supreme Court in Valsala
\nv. State of Kerala, AIR<\/a> 1994 Supreme Court 117 and contended that the delay in
\nsending the samples for chemical examination had caused prejudice to the
\naccused.  Again pressing the submission on the contraband having been in private
\nhands for three days, the learned counsel relying on the decision of this Court
\nin Ananthi v. State rep. by N.I.B., C.I.D., Trichy, (2002)1 MWN(Cr.)118,
\nsubmitted that it must be taken that the prosecution has failed to establish
\nthat the material, which was seized from the accused was the material sent to
\nthe laboratory for chemical examination.  The learned counsel submitted that in
\nthe instant case, the facts do not warrant the conclusion that the accused was
\nin continuous possession of the contraband and in this regard the learned
\ncounsel relies on the decisions of the Hon’ble Supreme Court in Avtar Singh &
\nOrs. v. State of Punjab, 2003-2-L.W.(Crl.)651, Gopal v. State of M.P.,<\/a> 2002(2)
\nCrimes 168(SC), Orissa High Court in Pitabas Pradhan v. State of Orissa,<\/a> 2002(2)
\nCrimes 250 and this Court in K.Mani v. The Asst. Collector, Customs Prosecution
\nUnit, Customs House, Chennai,<\/a> 2002(2) MWN(Cr.) 322.  Relying on the above
\ndecisions cited, the learned counsel submitted that the present appeal was one,
\nwhich deserved to be allowed.\n<\/p>\n
\t16. On the other hand, the learned Special Public Prosecutor submitted
\nthat the information received in the case had been marked as Ex.P1 and pursuant
\nthereto, the accused has been duly apprehended and recovery of contraband
\neffected.  As no physical search of the accused was made in this case, no
\nquestion of compliance with Section 50 of the Act arose, but despite that a
\nconsent letter of the accused Ex.P2 towards conducting search was obtained.  In
\nany event when a gazetted officer was present on the scene, no further
\nrequirement stood to be met.  The statement recorded under Section 67 of the Act
\nwas in the handwriting of the accused himself and the confession contained
\ntherein was in itself sufficient to attract conviction.  The seizure made in
\nthis case was beyond doubt.  That what was sent for analysis were the samples of
\nwhat was seized from the accused was proved through Ex.P9, the requisition
\nseeking qualitative analysis, the samples which had been marked as P1S1 to P9S1,
\nthe bearing of three seals in each of such samples, the  departmental specimen
\nseal thereon and the test report Ex.P7 showing that the seals were found intact
\nand that the same tallied with the specimen seal given in Ex.P9.  Ex.P9 also
\nreveals that the contraband was seized from the accused on the alleged date and
\nfrom the vehicle in which he was travelling.  The learned Special Public
\nprosecutor also took the Court through the evidence of P.W.6, Senior
\nIntelligence Officer, who spoke to having sent the S1 samples for chemical
\nexamination to the Chief Chemist, Customs House Laboratory, Chennai, upon
\nrequisition of the Intelligence Officer, under Ex.P9.  P.W.6 also explained that
\nbetween 01.02.2004 to 03.02.2004 i.e., the dates on which according to the
\ncounsel appearing for the appellant, the contraband was in private hands, the
\ncontraband was in his custody.  He deposed that when the same was produced
\nbefore the learned Judicial Magistrate, Trichy on 01.02.2004, the same was
\nneither weighed nor opened, but was returned by the learned Judicial Magistrate
\nwith the direction to produce before the trial Court.  Thereafter, the same was
\nproduced before the trial Court on 13.02.2004.  According to him, between
\n03.02.2004 and 13.02.2004, the contraband was in the customs warehouse.  Thus,
\naccording to the learned Special Public Prosecutor the due custody of the
\ncontraband stood proved and there was nothing to suspect the veracity of the
\nprosecution case.  The learned Special Public prosecutor also submitted that
\nSections 41 and 42 of the N.D.P.S. Act, had no application in this case as the
\nseizure was effected on the road i.e., in a public place.\n<\/p>\n
\t17. The contention of the learned counsel for the appellant\/accused that
\nthe officer conducting search could not be the Investigating Officer, is met by
\nplacing reliance on the decision of this Court Thirumallar v. The Inspector of
\nPolice, N.I.B.C.B.C.I.D., Trichy,<\/a> (2001) M.L.J.(Crl.) 707.
\n\t“20.Though the learned counsel for the appellant would contend that the
\nsaid observation of the Honourable Supreme Court cannot be applied for the said
\nproposition inasmuch as the said issue was not really canvassed before it, I am
\nunable to accept the said submissions of the learned counsel.  The judgment
\nrendered in State of Pubjab v. Balbir Singh,<\/a> 1994 S.C.C. (Crl.) 634, arose
\ndirectly under the provisions of the NDPS Act and while considering the various
\nprovisions of the NDPS Act vis-a-vis, the provisions of the Code of Criminal
\nProcedure, their Lordships were pleased to rule that an investigation carried on
\nby an empowered officer who caused the search, seizure an arrest was proper.
\nFurther in the Judgment reported in Gopal Gani Ram and others v. Superintendent
\nof Customs and Central Excise, C.T.U., Tiruchirapalli,<\/a> 1999 M.L.J. (Crl.) 387,
\nthe learned Judge of this Honourable Court following the Honourable Supreme
\nCourt reported in 1994 S.C.C. (Crl.) 634, held that under the provisions of the
\nNDPS Act, the officer who is empowered to conduct search is also empowered to
\nmake further investigation and complete the investigation in accordance with law
\nand therefore the fact that the complainant himself conducted the investigation
\nexamined the witnesses would not vitiate either the trial or investigation or
\nthe conviction.  The Judgment reported in 1999 M.L.J. (Crl.) 387 being one
\nrendered in a case which arose under the NDPS Act itself, as against the
\njudgment rendered in 1995 M.L.J. (Crl.) 410, I prefer to follow the ration of
\nthe former to that of the later”.\n<\/p>\n
\t18. For the proposition that neither Section 42 nor 50 of the Act had any
\napplication in this case, the learned Special Public Prosecutor relied on the
\ndecision of the Hon’ble Supreme Court in K.Chithhayan v. State of Tamil Nadu,<\/a>
\n(2008)11 Supreme Court Cases 363.\n<\/p>\n
\t“9. So far as Section 42(2) is concerned it is to be noted that search was
\nmade in a public place and not in a building and as such what was applicable was
\nSection 43 and not Section 42(2) of the Act. The decision of this Court in State
\nof Punjab v. Baldev Singh<\/a> is clearly applicable to the facts of the present
\ncase. The view in Baldev Singh case was reiterated in State of Haryana v.
\nJarnail Singh.<\/a>\n<\/p>\n
\t10. So far as the applicability of Section 50 of the Act is concerned, it
\nis to be noted that there was search of the bag carried by the appellant and
\nthere was no personal search. It has been held in State of H.P. v. Pawan Kumar
\nthat when there is no personal search and the search is effected in relation to
\na bag, Section 50 of the Act has no application”.\n<\/p>\n
\t19. For the proposition that when the seals were in tact and it was
\ncertain that it was the contraband seized, which has been sent for analysis,
\nthen the prosecution case would not suffer even if there was any delay in
\nsending samples for examination, the learned Special Public Prosecutor relied on
\nthe decision of the  Hon’ble Supreme Court in Hardip Singh v. State of Punjab,<\/a>
\n(2008)3 Supreme Court Cases (Crl.)590.\n<\/p>\n
\t“17. The then Station House Officer, Inspector Baldev Singh, who was
\nexamined as PW 1, was posted at Police Station Ajnala on the date of occurrence.
\nHe received the said samples of opium along with case material, being produced
\nbefore him by PW 5. It has come on evidence that Inspector Baldev Singh kept the
\nentire case property with him till it was deposited in the office of the
\nChemical Examiner, Amritsar on 30-9-1997 through ASI Surinder Singh (PW 3). It
\nhas also come on evidence that till the date the parcels of sample were received
\nby the chemical examiner, the seal put on the said parcels was intact. That
\nitself proves and establishes that there was no tampering with the aforesaid
\nseal in the sample at any stage and the sample received by the analyst for
\nchemical examination contained the same opium which was recovered from the
\npossession of the appellant. In that view of the matter, delay of about 40 days
\nin sending the samples did not and could not have caused any prejudice to the
\nappellant. The aforesaid contention, therefore, also stands rejected”.\n<\/p>\n
\t20. The learned Special Public Prosecutor also submitted that Section 67
\nstatement given by the accused in the case was a voluntary one and in such was
\nthe case, the conviction could follow thereon.  In support of his contention, he
\nrelied on the decision of the Hon’ble Supreme Court in Kanhaiyalal v. Union of
\nIndia,<\/a> (2008)4 Supreme Court Cases 668.\n<\/p>\n
\t“46. There is nothing on record to suggest that the appellant was
\ncompelled under threat to make the statement after he had been placed under
\narrest which renders such statement inadmissible and not capable of being relied
\nupon in order to convict him. On the other hand, there is the evidence of PW 9
\nupon which the High Court has relied in convicting the appellant. It may once
\nagain be mentioned that no question in cross-examination had been put to PW 9 in
\nthis regard and the version of the said witness must be accepted as
\ncorroborative of the statement made by the accused.\n<\/p>\n
\t47. … … … Since a conviction can be maintained solely on the basis
\nof a confession made under Section 67 of the NDPS Act, we see no reason to
\ninterfere with the conclusion of the High Court convicting the appellant”.\n<\/p>\n
\t21. In support of his contention that when the gazetted officer was
\npresent, no further requirement under Section 42 or Section 50 was required to
\nbe met, learned Special Public Prosecutor relied the decision of the Hon’ble
\nSupreme Court in State of Haryana v. Jarnail Singh and others<\/a>, (2004)5 Supreme
\nCourt Cases 188.\n<\/p>\n
\t“10. In the instant case there is no dispute that the tanker was moving on
\nthe public highway when it was stopped and searched. Section 43 therefore
\nclearly applied to the facts of this case. Such being the factual position there
\nwas no requirement of the officer conducting the search to record the grounds of
\nhis belief as contemplated by the proviso to Section 42. Moreover it cannot be
\nlost sight of that the Superintendent of Police was also a member of the
\nsearching party. It has been held by this Court in M. Prabhulal v. Asstt.
\nDirector, Directorate of Revenue Intelligence<\/a> that where a search is conducted
\nby a gazetted officer himself acting under Section 41 of the NDPS Act, it was
\nnot necessary to comply with the requirement of Section 42. For this reason
\nalso, in the facts of this case, it was not necessary to comply with the
\nrequirement of the proviso to Section 42 of the NDPS Act.\n<\/p>\n
\t11. We, therefore, hold that in the facts of this case Section 50 of the
\nNDPS Act was not applicable since the contraband was recovered on search of a
\nvehicle and there was no personal search involved. The requirement of the
\nproviso to Section 42 was also not required to be complied with since the
\nrecovery was made at a public place and was, therefore, governed by Section 43
\nof the Act which did not lay down any such requirement. Additionally, since the
\nSuperintendent of Police was a member of the search party and was exercising his
\nauthority under Section 41 of the NDPS Act, the proviso to Section 42 was not
\nattracted”.\n<\/p>\n
\t22. I have considered the rival submissions.\n<\/p>\n
\t23. The conviction by the lower Court rightly ought to have been under
\nSection 22(c) of the N.D.P.S. Act.  Though the lower Court has convicted the
\naccused for offence under Section 21(c) of the Act, the same is hardly of any
\nmaterial consequence in the facts and circumstances of the case.  It may be
\nmentioned that Section 21 of the Act deals with any manufactured drug or any
\npreparation containing any manufactured drug while Section 22 deals with
\npsychotropic substances in general.\n<\/p>\n
\t24. In the facts and circumstances of the case, it is seen that on receipt
\nof information, a record thereof was made in Ex.P.1 and in pursuance thereof,
\nthe search party apprehended the accused and recovered the contraband from him.
\nThe custody of the contraband from the time of recovery to the time, it reached
\nthe trial Court stands sufficiently explained.  The samples have been taken and
\nrequisite seals have been affixed.  It is clear that it is the samples, which
\nwere taken from the seized contraband that had been sent for analysis.  The test
\nreport has confirmed that what was seized was contraband.  In the above scenario
\nthe finding of conviction and the sentence imposed, given the quantum of
\ncontraband involved in this case viz., 11.364 Kgs cannot be faulted.  The
\napplication of Section 22(c) is attracted and thereby the sentence of 11 years
\nrigorous imprisonment stands imposed.  This Court cannot show any indulgence or
\nleniency towards reducing the sentence imposed.  However, on the question of
\nshowing leniency in the quantum of sentence for failure to pay the fine imposed,
\nthis Court finds it fit to follow the earlier decision of this Court in
\nCrl.A(MD)No.227 of 2005, which is relied upon by the learned counsel for the
\nappellant\/accused, wherein it has been held that as against the default sentence
\nof two years on failure to pay the fine, this Court reduced the same to one of
\none month.  Similarly, in this case, this Court is of the view that on failure
\nto pay the fine of Rs.1,00,000\/-, the accused shall be required to undergo
\ndefault sentence of one month rigorous imprisonment instead of two years.\n<\/p>\n
\t25. In the result, this Criminal appeal deserves dismissal and accordingly
\nis dismissed and the conviction and sentence passed in C.C.No.334 of 2004 by the
\nlearned Additional Sessions Judge cum Special Judge for EC and NDPS Act Cases,
\nPudukottai are confirmed and the default sentence of two years rigorous
\nimprisonment alone is reduced to one month rigorous imprisonment.  The trial
\nCourt is directed to take appropriate action so as to have the accused serve out
\nthe remainder of the sentence.\n<\/p>\n
smn<\/p>\n
To\t\t\t\t\t<\/p>\n
1.The Additional Sessions Judge cum Special Judge
\n    for EC and NDPS Act Cases,
\n  Pudukottai.\n<\/p>\n
2.The Senior Intelligence Officer,
\n  Directorate of Revenue Intelligence,
\n  17, Reynolds Road,
\n  Cantonment,
\n  Tiruchy – 620 001.\n<\/p>\n
3.The Special Public Prosecutor,
\n  Madurai Bench of Madras High Court,
\n  Madurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court V.Vettichelvan vs Central Rep. By on 14 October, 2009 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 14\/10\/2009 CORAM THE HONOURABLE MR.JUSTICE C.T.SELVAM Crl.A.(MD)No.116 of 2006 V.Vettichelvan .. Appellant\/ Accused Vs Central rep. by the Senior Intelligence Officer, Directorate of Revenue Intelligence, 17, Reynolds Road, Cantonment, Tiruchy – 620 001. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-23070","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nV.Vettichelvan vs Central Rep. By on 14 October, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/v-vettichelvan-vs-central-rep-by-on-14-october-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"V.Vettichelvan vs Central Rep. 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