{"id":97290,"date":"2003-08-05T00:00:00","date_gmt":"2003-08-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/murugan-vs-state-by-inspector-of-police-on-5-august-2003"},"modified":"2014-09-02T02:33:21","modified_gmt":"2014-09-01T21:03:21","slug":"murugan-vs-state-by-inspector-of-police-on-5-august-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/murugan-vs-state-by-inspector-of-police-on-5-august-2003","title":{"rendered":"Murugan vs State By Inspector Of Police on 5 August, 2003"},"content":{"rendered":"
Madras High Court<\/div>\n
Murugan vs State By Inspector Of Police on 5 August, 2003<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 05\/08\/2003\n\nCORAM\n\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\n\nC.A.No.952 of 2002\n\nMurugan                                                .. Appellant\n\n-Vs-\n\nState by Inspector of Police\nNIB CID, Salem.                         .. Respondent\n\n        This criminal appeal  is  preferred  under  Sec.374  of  The  Code  of\nCriminal Procedure against the judgment of the Special Judge (NDPS Act), Salem\nmade in C.C.No.242 of 1999 and dated 25.9.2000.\n\n!For Appellant :  Mr.R.C.Paul Kanagaraj\n\n^For Respondent :  Mr.V.Jaya Prakash Narayanan\n                Government Advocate (Crl.  Side)\n\n:JUDGMENT\n<\/pre>\n
        What is challenged herein is the judgment of the learned Special Judge
\n(NDPS Act), Salem made in C.C.No.242\/99 wherein the appellant\/  accused  stood
\ncharged,  tried  and  found guilty under Sec.8(c) read with 21 of the N.D.P.S.
\nAct and sentenced to undergo R.I.  for 10 years and to pay a fine  of  Rs.1.00
\nlakh in default to undergo 2 years R.I.\n<\/p>\n
        2.  The brief facts necessary for the disposal of this appeal  can  be
\nstated thus:\n<\/p>\n
        On  30.8.1999,  P.W.1  Veerannan  Sub Inspector of Police, NIB CID and
\nP.W.4 Velliangari and teammates were on regular supervision.   On  information
\nfrom an informer, they reached Thathakapatti gate.  The accused was pointed to
\nP.W.1 by  the  informer.  P.W.1 introduced himself and questioned the accused.
\nHe asked the accused whether he was carrying  contraband.    He  informed  the
\naccused that he wanted to effect a search.  The right of the accused under the
\nAct to be searched before a gazetted Officer or a Magistrate was also informed
\nto him.   The  accused  replied  that  he  could  be searched by P.W.1.  P.W.1
\narrested the accused in front of Ganesan.  Inspector of Police,  Anadhanapatti
\nPolice Station,  Venkatesan, Head Constable and Krishnan, Head Constable.  The
\naccused was enquired in front of  P.W.2  Elango  and  P.W.5  Rajendran.    The
\nconsent  given  by the accused was reduced in writing by the Head Constable as
\ndictated by P.W.1 and it was duly signed by the accused, marked as Ex.P1.   On
\none  side of the yellow colour bag marked as M.O.1, held by the accused, there
\nwas an advertisement by Prabu Jewellery, 150 Main Road, Salem.  The  polythene
\nbag  which  was  inside  the yellow colour bag contained brown colour material
\nweighing 100 grams.  P.  W.1 put a hole in the polythene bag and took  1  gram
\nof powder  for  sample  and came to know that it was brown sugar.  Two samples
\nweighing 5 grams each were  taken  for  chemical  analysis,  and  the  balance
\nweighing 89  grams  was  tied  separately  under  M.O.3.  Ex.P3 is the seizure
\nmahazar.  The accused was arrested, and he gave a confessional statement under
\nEx.P2.  A case in Crime No.68 of 1999 was registered under Ss 8 C  and  21  of
\nthe NDPS  Act.    Ex.P4  printed  FIR was sent to the concerned Court, and the
\ndocuments were forwarded to the higher officials.  Ex.P5  express  report  was
\nforwarded to  the  Inspector  of  Police.  The accused and the contraband were
\nproduced before the Court under Form 95 .   The  Court  sample  is  marked  as
\nM.O.2.   The  bag  containing the contraband received from the Forensic Lab is
\nmarked as M.O.4.  P.W.6 Sankarapandiyan, Inspector of Police on receipt of the
\ndocuments from P.W.1 on 30.8.99 at about 1.50 P.M., enquired the  accused  and
\nrecorded his  statement.    The  statement of the accused was forwarded to the
\nJudicial Magistrate No.IV, Salem.  P.W.6 along with his teammates searched the
\nhouse of the accused in front of the  witnesses  and  found  no  incriminating
\nmaterials.  The search report is marked as Ex.P8.  He prepared Ex.P9 sketch in
\nthe place of  occurrence.    The accused was remanded to judicial custody.  He
\nrecorded statements from the witnesses.  The material  objects  were  sent  to
\nForensic Lab  through Court.  P.W.3 Ezhilarasi, an Officer in the Forensic Lab
\nreceived the sample on 6.9.1999 and tested the same.    P.W.3  gave  a  report
\nunder  Ex.P6  opining  that  the  said  sample  contained  Di Acetyle Morphine
\n(Heroin).  P.W.6 received Ex.P6 report.  He examined P.W.3  and  recorded  her
\nstatement.   On  completion  of  the  investigation,  he  filed a charge sheet
\nagainst the accused under Ss 8C and 21 of NDPS Act.\n<\/p>\n
        3.  In order to prove the charges levelled against  the  accused,  the
\nprosecution examined 6 witnesses and marked 9 exhibits and 4 material objects.
\nAfter  the  evidence  of  the  prosecution was over, the appellant\/accused was
\nquestioned under Sec.313 of Cr.P.C.  as  to  the  incriminating  circumstances
\nfound  in the evidence of the prosecution witnesses, which he flatly denied as
\nfalse.  No defence witness was examined.  Neither any exhibit nor any material
\nobject was marked on the side of the defence.  On consideration of  the  rival
\nsubmissions  and  scrutiny  of the materials, the trial Court found him guilty
\nunder S.8C read with  21  of  the  NDPS  Act  and  sentenced  him  to  undergo
\nimprisonment, as stated supra.  Hence, this appeal.\n<\/p>\n
        4.   Arguing  for  the  appellant,  the  learned  Counsel  Mr.R.C.Paul
\nKanagaraj interalia raised the following submissions:\n<\/p>\n
        The lower Court has not considered  the  entire  evidence  to  base  a
\nconviction.   It  is  pertinent  to  note  that  the information, by which the
\nInspector arrested the accused and seized the contraband, was neither  reduced
\nin writing  nor sent to the immediate superior officer.  The same is violative
\nof Sec.42(2) of the NDPS Act, and on  that  ground  alone,  the  trial  became
\nvitiated.  P.W.1 after the alleged seizure, handed over the property to P.W.6,
\nand  P.W.6  has not affixed the seal on the properties, which was violative of
\nSec.55 of the NDPS Act.  It remains to be stated that there is no report under
\nSec.57 of the Act sent by P.W.1 to his immediate  superior  regarding  seizure
\nand arrest.    In  view  of  the  non-compliance  of  Sec.57  of  the Act, the
\nconviction against the appellant is bad in law.  P.W.4  has  stated  that  the
\nInspector  of  Police from Annathanapatti Police Station arrested the accused,
\nwhich is contrary to the evidence of P.W.1, who deposed that he  has  arrested
\nthe accused.     It  is  pertinent  to  note  that  there  is  no  independent
\ncorroboration regarding the alleged search and seizure.  According  to  P.W.4,
\nhe  brought  the  accused  to  his  vehicle  and  prepared the mahazar in that
\nvehicle.  But a reading of the evidence  of  P.W.1  would  indicate  that  the
\npreparation of  mahazar and seizure had been done on the spot itself.  In view
\nof  the  above  said  non-compliance  of  the  provisions  of  the  Act,   the
\nappellant\/accused is entitled for an acquittal.\n<\/p>\n
        5.   Added  further  the  learned  Counsel  for the appellant that the
\nentire trial  is  vitiated,  since  the  appellant\/accused  was  not  properly
\nquestioned under  Sec.313  of  Cr.P.C.  informing him the actual incriminating
\ncircumstances found in the evidence of the prosecution witnesses, and  thus  a
\nvaluable  right  of  the  accused  was  taken  away,  and  the same has caused
\nprejudice to him, and hence, on that score also  the  judgment  of  the  lower
\nCourt has got to be set aside.\n<\/p>\n
        6.   The  learned  Government  Advocate  (Criminal Side) opposed those
\ncontentions of the appellant’s side strongly by stating that the  trial  Court
\nonly  on  proper appreciation of the evidence available, has found him guilty;
\nthat the  prosecution  has  clearly  proved  the  illegal  possession  of  the
\ncontraband  by the accused at the time of search, and apart from that, all the
\nprocedural formalities as contemplated under the NDPS Act  had  been  strictly
\ncomplied with by the officials.  Added further the learned Government Advocate
\nthat  the  contention  of  the  appellant’s  side that the trial Court has not
\nproperly examined the accused under Sec.313 of Cr.P.C.  is not correct, and no
\nprejudice has also been caused to him, and hence, the judgment  of  the  lower
\nCourt has got to be sustained.\n<\/p>\n
        7.   On  careful  analysis  of  the  entire  materials  available  and
\nconsideration of the rival submissions,  the  Court  without  going  into  the
\nmerits  or otherwise of the rival contentions as to the merits of the case and
\nas to the question whether the mandatory  provisions  of  the  NDPS  Act  were
\nstrictly  followed  by  the  officials  at  the time of the alleged search and
\narrest, has to set aside the judgment of the Court below on the  short  ground
\nthat  the  trial Court after the completion of the evidence on the side of the
\nprosecution has neither properly framed the questions  nor  put  them  to  the
\nappellant\/accused   so   as  to  make  him  understand  of  the  incriminating
\ncircumstances found against him in the evidence adduced by the prosecution, as
\nenvisaged under Sec.313 of Cr.P.C.\n<\/p>\n
        8.  The learned Counsel for the appellant brought to the notice of the
\nCourt certain vital questions which were not properly framed.  It is true that
\nquestioning under Sec.313 of Cr.P.C.  as to the incriminating circumstances in
\nthe evidence of the prosecution witnesses was intended  to  make  the  accused
\nunderstand  what  was  the  evidence  adduced  against  him by the prosecution
\nwitnesses.  If the incriminating circumstances found in the  evidence  of  the
\nprosecution  witnesses  were  not put to the accused under Sec.313 of Cr.P.C.,
\nthey should be completely excluded from consideration, since the  accused  was
\nnot given any chance to explain them.  This Court has uniformly taken the view
\nthat  unless  the  circumstance appearing against the accused is put to him in
\nhis examination under Sec.313 of Cr.P.C., the same cannot be used against him.
\nNeedless to say that it is a valuable right available to him, and it is not an
\nempty formality.  The Apex Court has held in a decision reported in  AIR  1962
\nSUPREME COURT  1239  (RAMA  SHANKAR SINGH AND OTHERS V.  STATE OF WEST BENGAL)
\nthus:\n<\/p>\n
“Duty is thereby imposed upon the Court to question the accused generally in a
\ncase after the witnesses for the prosecution have been examined to enable  the
\naccused to  explain  any  circumstance  appearing  against  him.    This  is a
\nnecessary corollary of the presumption of  innocence  on  which  our  criminal
\njurisprudence is  founded.    The  object  of  the section is to afford to the
\naccused an opportunity of showing that the circumstance  relied  upon  by  the
\nprosecution which may be prima facie against him, is not true or is consistent
\nwith his innocence.    The  opportunity  must be real and adequate.  Questions
\nmust be so framed as to give to the accused clear notice of the  circumstances
\nrelied  upon  by  the  prosecution, and must give him an opportunity to render
\nsuch explanation as he can of that circumstance.  Each  question  must  be  so
\nframed  that  the  accused may be able to understand it and to appreciate what
\nuse the prosecution desires to make of the evidence against him.   Examination
\nof  the accused under S.342 is not intended to be an idle formality, it has to
\nbe carried out in the interest of justice and fair play to the accused:  by  a
\nslipshod  examination  which  is  the  result of imperfect appreciation of the
\nevidence, idleness or  negligence  the  position  of  the  accused  cannot  be
\npermitted to be made more difficult than what it is in a trial for an offence.
\nThis Court  pointed  out  in  Ajmer  Singh v.  State of Punjab, 1953 SCR 418 :
\n(AIR 1953 SC 7 6) that “it is not a sufficient  compliance  with  the  section
\n(S.342  Code  of  Criminal Procedure) to generally ask the accused that having
\nheard the prosecution evidence what he has to  say  about  it.    He  must  be
\nquestioned separately about each material circumstance which is intended to be
\nused against  him.  The whole object of the section is to afford the accused a
\nfair and proper opportunity of explaining circumstances which  appear  against
\nhim  and  the  questions  must  be fair and must be couched in a form which an
\nignorant or illiterate person may be able to appreciate and  understand.”  The
\nexamination  by  the  Sessions Judge of the appellants was perfunctory, but as
\nobserved in Ajmer Singh’s case, 1953 SCR 418 :  (AIR 1953 SC 76)  every  error
\nor omission  in  complying  with S.342 does not vitiate the trial.  “Errors of
\nthis type fall within the category of curable irregularities and the  question
\nwhether  the  trial  has been vitiated depends in each case upon the degree of
\nerror and upon whether prejudice has been or is likely to have been caused  to
\nthe accused”.    To the questions asked by the Judge, the answers given by the
\nappelants were either “I am innocent” or ” the story is false”.    Failure  on
\nthe  part  of  the Sessions Judge to split up the questions so as to deal with
\neach distinct feature or material piece of evidence separately, however,  does
\nnot,  in  the  circumstances  of  the  present case, justify an inference that
\nprejudice was thereby caused to the appellants.  Counsel  for  the  appellants
\nhas  not  been able to suggest, having regard to the line of cross-examination
\nadopted and the criticism of the evidence of the prosecution witnesses offered
\nby him, what explanation besides complete denial of the prosecution story, the
\nappellants could have offered in answer  to  the  questions  relating  to  the
\ndifferent  circumstances  and  pieces  or  features  of  evidence on which the
\nprosecution relied.  It is true that the prosecution strongly relied upon  two
\ncircumstances against Bimala (1) that when she came out of the house of Ramdeo
\nAhir,  she  had  a  bloodstained  knife  in her hand and (2) that when she was
\narrested from the godown of Bhola Singh, the knife was in her hand.  To  these
\nmatters  of  evidence  attention of the accused Bimala does not appear to have
\nbeen invited.  Similarly, attention of Ram Shankar to the evidence  that  when
\nhe  came  out  of  the room of Ramdeo Ahir, he had a knife in his hand was not
\ninvited.  But we have already observed  beyond  a  bare  denial,  the  learned
\ncounsel was unable to suggest any other answer which the accused could give to
\nthese pieces  of  evidence even if they had been specifically put to them.  It
\nis also to be noticed that the plea that the appellants had not been  properly
\nexamined  under  S.342 of the Code of Criminal Procedure was not raised before
\nthe High Court :  at least there is no reference in the judgment of  the  High
\nCourt to any such argument.  Failure to comply with the provisions of S.342 is
\nan  irregularity;  and  unless injustice is shown to have resulted therefrom a
\nmere irregularity is by itself not sufficient to justify an order of  retrial.
\nThe  appellate  court  must  always  consider  whether by reason of failure to
\ncomply with a procedural provision, which does not affect the jurisdiction  of
\nthe court, the accused have been materially prejudiced.”\n<\/p>\n
        9.   In the instant case, the lower Court has not framed the necessary
\nquestions regarding the contraband, the very subject matter of the  case,  and
\nhence, it  has caused prejudice to the interest of the accused.  Therefore, in
\nthe absence of proper framing of question and putting the same to the  accused
\nin respect of the vital aspects of the matter, in particular the contraband in
\nquestion  marked  as  M.O.1  and in consideration of the valuable right of the
\naccused, the Court has to necessarily set aside  the  judgment  of  the  Court
\nbelow and remand the matter back to the trial Court for disposal in accordance
\nwith law.\n<\/p>\n
        10.  In the result, this criminal appeal is allowed, setting aside the
\njudgment of  the  lower Court.  The matter is remitted back to the trial Court
\nwith a direction to keep the evidence already recorded by it, proceed with the
\nquestioning of the appellant\/accused under Sec.31 3 of Cr.P.C.  and dispose of
\nthe case in accordance with law within a period of two months from the date of
\nreceipt of copy of this judgment.\n<\/p>\n
Index:  Yes
\nInternet:  Yes<\/p>\n
To:\n<\/p>\n
1) The Special Judge (NDPS Act), Salem.\n<\/p>\n
2) The Principal Sessions Judge, Salem.\n<\/p>\n
3) The Superintendent, Central Prison, Vellore.\n<\/p>\n
4) The Public Prosecutor, High Court, Madras.\n<\/p>\n
5) The D.I.G.  of Police, Chennai 4.\n<\/p>\n
6) Mr.V.Jaya Prakash Narayanan, Government Advocate
\n(Crl.  Side), High Court, Madras.\n<\/p>\n
7) The Inspector of Police, NIB CID, Salem.\n<\/p>\n
8) The Section Officer, Criminal Section, High Court, Madras
\nnsv\/<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Murugan vs State By Inspector Of Police on 5 August, 2003 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05\/08\/2003 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM C.A.No.952 of 2002 Murugan .. Appellant -Vs- State by Inspector of Police NIB CID, Salem. .. Respondent This criminal appeal is preferred under Sec.374 of The […]<\/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-97290","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nMurugan vs State By Inspector Of Police on 5 August, 2003 - 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\/murugan-vs-state-by-inspector-of-police-on-5-august-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Murugan vs State By Inspector Of Police on 5 August, 2003 - 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