Madras High Court
Madasamy vs State on 21 January, 2002
Author: V.Kanagaraj
Bench: V.Kanagaraj
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21/01/2002
CORAM
THE HONOURABLE MR.JUSTICE V.KANAGARAJ
CRIMINAL APPEAL NO.747 OF 2001
Madasamy ... Appellant
-Vs-
State, rep. by
Inspector of Police,
Narcotics Intelligence Bureau,
Nagapattinam ... Respondent
Criminal Appeal preferred under Section 374(2) Cr.P.C. as against the
judgment dated 7.6.2001 rendered in C.C.No.95 of 2000 by the Court of Special
Judge for Essential Commodities Act Cases, Thanjavur.
!For appellant : Mr.M.Balasubramanian
^For respondent : Mr.A.N.Thambidurai,
Govt.Advocate (crl.side)
:JUDGMENT
The above criminal appeal is directed against the judgment of conviction dated 7.6.2001 rendered in C.C.No.95 of 2000 by the Court of Special Judge for Essential Commodities Act Cases, Thanjavur thereby convicting the appellant for the offence punishable under Section 8(c) r/w.22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( hereinafter referred to as the `Act') and sentencing him to undergo Rigorous Imprisonment for a period of ten years and to pay a fine of Rs.1 lakh in default to undergo further Rigorous Imprisonment for a period of three years.
2. The case of the prosecution is that on 23.3.2000 at 9.30 a.m., P.W.4, H.C.505 of NIB CID, Nagapattinam having received information regarding the illicit trafficking of the Narcotic substances, recorded the same in writing and submitting the same to the Inspector, reached the Thiruvarur-Nagapattinam Road, Kivalur Arasanikulam Bus Stop at 11 .00 a.m. with his party and since nobody came forward to stand as witnesses, the accused was searched in the presence of P.W.1-M.Paul Raj, Grade-I P.C.408 and one A.S.Subramanian, Grade-I P.C.2092, after informing the accused of his right to be searched before either a Judicial Magistrate or a Gazetted Officer; that during the course of search, the accused was found in possession of a polythene bag containing Diazepam weighing 250 gms. and drawing two samples of 5 gms. each Diazepam, rest of the contraband was seized under a cover of mahazar signed by P.Ws.1,4 and the said A.S.Subrasmanian and complying with all other formalities as directed by the Hosnourable Supreme Court, they arrested the accused and hence the charge.
3. The prosecution, which is burdened to prove the case put up by it,beyond all reasonable doubts, has examined five witnesses for oral evidence as P.Ws.1 to 5 and marked ten documents for documentary evidence as Exs.P.1 to P.10 besides marking three material objects as M. Os.1 to 3. On the part of the defence, no oral or documentary evidence has been adduced.
4. The Court below, in consideration of the facts and circumstances of the case, in the light of the evidence adduced, would ultimately convict and sentence the accused as aforementioned. Aggrieved, the appellant/accused has come forward to prefer the above criminal appeal on certain grounds as brought forth in the grounds of appeal.
5. The case of the prosecution as put up before the trial Court is that on 23.03.2000 at about 9.30 a.m. at the Keevalur Arasanikulam bus stop in Tanjure - Nagapattinam road, the accused was found in possession of 250 gms. of Diazepam kept in a polythene bag, which is a Narcotic substance, without any valid permit or licence and thus he committed an offence punishable under Sections 8(c) r/w 22 of the NDPS Act, 1985 and hence the charge.
6. P.W.1, the first grade constable attached to Nagapattinam NIB CID unit would depose to the effect that on reliable information given on 23.03.2000 at about 9.00 a.m, when he was in the Head Quarters that the appellant/accused was in possession of a psychotropic substance called Diazepam and was standing in the bus stop, this witness accompanied by another first grade constable Subramaniam started at 10.00 a.m that day and reached the bus stop at 11.00 a.m and at about 11.45 a.m, the Head Constable pointed the appellant and surrounding him, they identified themselves to the appellant and expressed their desire to conduct a body search and asked whether he was willing for the body search to be done in the presence of either a Gazetted Officer or a Magistrate and the appellant giving his consent for the body search by the Police themselves and since no individual witness came forward to witness the occurrence, with the Police witnesses, they started searching the appellant/accused and the Head Constable found the polythene bag which was kept in the left hand of the appellant; that on verification, the polythene bag found to contain a powder in a light sandalwood colour and the accused himself informed them that it was Diazepam meant for diluting toddy and the same was weighing 250 grams and having taken for sample 5 grams each in two packets and the rest of 240 grams was kept in the same polythene bag with NIB Seal affixing a slip containing the details signed by the accused and the Head Constable and all the events that took place having got reduced into a mahazar, they arrested the accused. The search notice would be marked as Ex.P.1, the seizure mahazar would be marked as Ex.P.2 and contraband seized would be marked as M.O.2 through this witness. This witness would also depose that when he questioned the accused, he informed that he did not possess either any licence or permit for being in possession of the Diazepam that was seized from him that day at 3.30 p.m and they have caused his arrest under Ex.P.3, Arrest Nama attested by the witnesses and they went back to their office.
7. P.W.2 who is the Chemical Analyst would depose that on 03.04.200 0, he received a letter No.74 of 2000 from the Court through Constable Rajendran, P.C.406, dated 31.03.2000 and the sample in a paper packet concerned with NIB CID Crime No.10 of 2000; that he chemically analysed the said article and found that it was diazepam; that thereafter he sent the analyst report to the Court and the report would be marked as Ex.P.4 and the remaining contraband after analysis would be marked as M.O.3. This witness would also opine that diazepam is a psychotropic substance. P.W.3 is the Police constable who would carry the contraband to the Court on 23.03.2000, and again on 29.03.2000 and then to the Chemical analyst on 04.04.2000. The requisition sent to the Court would be marked as Ex.P.5 and form-95 in which entry has been put up which would be marked as Ex.P.6 through this witness.
8. P.W.4 is the Head Constable attached to NIB CID and he would depose that on 23.03.2000 at about 9.00 a.m, he received information over phone to the effect that the appellant/accused coming to the bus stop with the contraband used for mixing with toddy which is a psychotropic substance; that submitting information with the Inspector of Police at 9.45 a.m and getting the authorisation from him and keeping surveillance at the bus stop at 11.45 a.m. that day, they surrounded the accused and found that he was in possession of the diazepam powder and after finding out whether he was willing to be searched in the presence of the Gazetted Officer or the Magistrate and with his consent, they themselves made a search and found that he was in possession of 250 grams of Diazepam keeping it in a polythene bag in his left hand and taking a sample of 5 grams each in two packets in the presence of the witnesses attested by them and signed by the accused and the witnesses, they affixed the NIB Seal and the rest of 240 grams of Diazepam was put in the same packet in the NIB Seal and signed by the witnesses; that they came to know from the accused that he had no licence or permit to be in possession of the said contraband and with all the facts, he prepared the mahazar which would be attested by the accused and the witnesses; that he was arrested and dropped to the station along with the contraband and the case under Crime No.10 of 2000 under Section 8(c) r/w 20(b)(i) of the NDPS Act,1985 was registered and the FIR would be prepared which would be marked as Ex.P.8 and then this witness would also prepare a detailed report under Section 57 which would be submitted at 4.00 p.m that day to the Inspector of Police.
9. P.W.5 is the Inspector of Police and Investigation Officer and this witness would speak to the investigation done by him after taking up the matter for investigation such as preparing Ex.P.10, observation mahazar on the spot, examining witnesses particularly the mahazar witness namely Paulraj PC-408, Subramaniam Grade-I constable 2092 and Ranganathan Head Constable 505 would also sent the accused for remand besides sending the seized contraband to the Court that day itself; that he would also examine the Chemical Analyst on 26.05.2000 and record his statement and on completion of his investigation on 27.03.20 00, he would lay the charge sheet against the accused under Section 8 (3) r/w 23(b)(i) of NDPS Act, 1985; that the contraband and all material documents would be sent to the Court then and there, particularly the contraband on 23.02.2000 and in the mean time, the contraband was under his custody in the station.
10. In consideration of these evidence made available, the trial Court, appreciating the same in its own way, has ultimately arrived at the conclusion to convict and sentence the accused in the manner aforementioned, testifying the validity of which the appellant has come forward to prefer the above appeal on certain grounds as pleaded in the grounds of appeal.
11. During the arguments, the learned counsel appearing on behalf of the appellant would submit that it is P.W.4, Head Constable, who is said to have received information regarding the accused travelling in the bus proceeding from Tiruvarur to Nagapattinam and while he changed the bus from Keevalur Arasanikulam bus stop, P.W.4 and his party consisting of P.W.1 and yet another constable, namely, Subramaniam intercepted the accused at the said bus stop on 23.03.2000 and found him in possession of the contraband namely Diazepam which is a psychotropic substance used for the purpose of mixing in toddy; that it is this witness P.W.4 who recorded Ex.P.7 information and having shown to P.W.5 with his authorisation said to have proceeded to the spot accompanied by P.W.1 and another Subramaniam who is not examined and they are said to have seen the accused at 11.45 a.m that day when he got down from the bus and that he was in possession of 250 grams of Diazepam kept in a polythene bag; that this witness would further depose that the said information was not reduced into writing in Ex.P.7 by himself in his own hand writing, but it was recorded by somebody else; that the prosecution has not identified or revealed the person who identified the accused nor he has been examined; that under Section 42(2 ) of the NDPS Act, the person who receives information must record the same; that even though Exs.P.1 to P.3 have been prepared at the NIB Office with the help of some constables, in order to appear that they complied with relevant section, they have made it as though recorded on the spot; that it is an admitted fact that all these vital documents have not at all ben prepared by P.W.4 in his own hand as it comes to be revealed from the evidence of P.W.4; that there is no mention as to in which bus the accused was travelling and got down at the time that they intercepted him and had these vital documents been prepared on the spot, this information would have been supplied with.
12. The learned counsel would further argue that under Section 50, it is mandatory that the accused must be informed of all his right to be searched in the presence of a Gazetted Officer or a Magistrate and this information has not been conveyed to the accused in a reliable manner and Ex.P.1 is not the answer for the compliance of mandatory provision of Section 50 of the Act, since it is the admitted part of the prosecution evidence that P.W.4 who is the author of all these documents Exs.P.1 to P.3 has not reduced the same into writing, but by somebody else who has not been examined at all.
13. At this juncture, the learned counsel would cite a judgment of the Honourable Apex Court delivered in K.MOHANAN Vs. STATE OF KERALA reported in 2000 SCC (Cri) 1228, wherein it has been held:
"The Constitution Bench of this Court in State of Punjab Vs. Baldev Singh has considered various aspects of the compliance with Section 5 0 of the Act. The Bench has laid down the propositions of law of which the first and second are extracted below: (SCC pp.208-09, para 57)
57.(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under subsection (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing.
(2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused".
If the accused, who was subjected to search was merely asked whether he required to be searched in the presence of a gazetted officer or a Magistrate it cannot be treated as communicating to him that he had a right under law to be searched so. What P.W.1 has done in this case was to seek the opinion of the accused whether he wanted it or not. If he was told that he had a right under law to have it (sic himself) searched what would have been the answer given by the accused cannot be gauged by us at this distance of time. This is particularly so when the main defence adopted by the appellant at all stages was that Section 50 of the Act was not complied with.
We, therefore, hold that there was non-compliance with Section 50 of the A and consequently the evidence of search spoken to by P.W.1 cannot be acted upon in the absence of any other independent evidence to show that the appellant was in possession of the contraband article.
14. Another Judgment cited in this regard is one reported in NAYAGAM Vs. STATE BY INSPECTOR OF POLICE (2002 (2) Crimes 34), wherein it is held that:
"In this context, it would be relevant to refer about the observations made by the Supreme Court in K.Mohanan Vs. State of Kerala (Supra), which is as follows:
The main legal point canvassed before us is that the mandatory requirement in Section 50 of the Act has not been complied with. It is recited in the Judgment that P.W.1 before the search was conducted, asked the appellant whether he required to be produced before a Gazetted Officer or a Magistrate for the purpose of search and that the appellant answered in the negative. In order to ascertain whether the said recital is authentic , we called for the original records. Though the evidence is recorded in vernacular we found from the testimony of P.W.1 that the aforesaid recital is substantially correct.
If the accused, who was subjected to search was merely asked whether he required to be searched before a Gazetted Officer or a Magistrate, it cannot be treated as communicating to him that he had a right under law to be searched so. What P.W.1 has done in this case was to seek the opinion of the accused whether he wanted it or not. If he was told that he had a right under law to have it(sic himself) searched what would have been the answer given by the accused cannot be gauged by us at this distance of time. This is particularly so when the main defence adopted by the appellant at all stages was that Section 5 0 of the Act was not complied with."
15. The learned counsel would then remark that it is a case where there is absolutely no independent witness nor corroboration of the Official witnesses; that admittedly Exs.P.1 to P.3 and P.7 were not recorded by P.W.4; that in spite of the prosecution case being that Exs.P.1 to P.3 have not been recorded on the spot; that the scene of occurrence being the bus stop and having further admitted that it is a crowded place, they would come forward to say that no independent witness came forward to support their case.
16. At this juncture, the learned counsel would cite yet another Judgment delivered by a learned single Judge of this Court in Ravi and Others Vs. State by Inspector of Police reported in 2000(4) Crimes 1, wherein it is held:
"the seizing officials had ample opportunity to secure independent witnesses and their evident that no independent witness could be secured was unbelievable. If the Investigating Officer failed to take effective steps to procure independent witnesses and explanation was not believable, search get vitiated. Property recovered on 06.07.1996 was produced before the Special Court on 17.07.1996 and the constable who received the property on 18.07.1996 produced before the Chemical Examiner on 22.07.1996 - No explanation for delay
- conviction was unsustainable."
17. In reply, the learned Government Advocate on the Criminal side would submit that in the case in hand, it is P.W.4, the empowered Officer, who goes to the spot on reliable information having been empowered by P.W.5, the Inspector of Police and the empowered Officer and conducted the raid and seized the contraband, besides securing the accused apart from preparing Exs.P.1 to P.3 on the spot and since no independent witness came forward to stand as the witness, he has conducted the raid in the presence of the Police witnesses making use of them as mahazar witnesses and the same is perfectly agreeable in law particularly when P.W.4, the Head Constable is acting under the empowerment granted by P.W.5 in Ex.P.7 and there is no question of noncompliance of the provisions of law.
18. Regarding the mandatory compliance under Section 50 also, the learned Government Advocate on the criminal side would submit that it has been fully complied with as per Ex.P.1. But, it is the case of the appellant that in the grounds of arrest, the quantity is not mentioned, whereas it need not be mentioned in the grounds of arrest at all, i.e., in Ex.P.3, however, it has been mentioned in Ex.P.2 mahazar which is sufficient, regarding Section 55 of the NDPS Act. The learned counsel would argue that it is only directory and not mandatory. On such arguments, the learned Government Advocate would seek to dismiss the appeal confirming the Judgment of the trial Court.
19. A careful perusal of the trial Court Judgment would reveal that the learned Judge having traced the facts pleaded and having gone through the evidence adduced by each witness, has accepted the same, since barely the compliance of the provisions of law have been shown to be complied with which according to the trial Court is sufficient to sustain the conviction and hence it has convicted the accused in the manner extracted supra. However, it has beco me necessary on the part of this Court to find out `whether the prosecution has put up the real case following the procedures established by law particularly the mandatory provisions embodied under Sections 42(2), 50 and 55 of the NDPS Act,1985 and whether the appreciation of the evidence by the trial Court is proper?'
20. At the outset, on the part of the defence, the case of the prosecution would be attacked on ground that no such incident ever occurred in the bus stop as it is alleged on the part of the prosecution and the prosecuting officials have manipulated the documents particularly Exs.P.1 to P.3 and P.7 at the office itself, since no iota of independent evidence comesforth in proof of the occurrence having taken place on the date, time, place and in the manner alleged. It is the open case of the prosecution that excepting the Police witnesses, not a single independent evidence nor corroboration comesforth. They do not even have any support from the individuals to freely come forward to support the case of the prosecution. In fact, it would be admitted by P.W.4, who is said to be the author of Exs.P.1 to P.3 and P.7, that all the said documents could very well be prepared at the Police station itself. Since all those who are connected with coming into being of all these documents are only Police personnel and not even a single individual outside the purview of the Office of the NIB CID has played any role and therefore fundamentally and basically the case of the prosecution is doubted by the defence. Whether it is for the mahazar or for the rough sketch which has to be prepared on the spot the Police do not get an independent witness in support of their case and even though they are permitted to record the materials in the manner that they have done for which there is no bar in law under pretext that they do not get support from the independent witness, but still whether trusting such evidence, it is prudent to decide the case in the manner that it has been done by the trial Court is the point for deeper consideration.
21. It is not the case of non-corroboration of the evidence of the prosecution by the independent witnesses, but the non availability of the evidence itself as a result of which only with the Police witnesses the whole show has to be managed and therefore it has become highly necessary on the part of this Court to find out whether the case put up by the prosecution is really true and that whether they would have complied with the mandatory provisions of law particularly Section 50 of the NDPS Act.
22. From the cross examination of P.W.4, who is the author of Exs. P.1 to P.3 and P.6, it is clearly admitted that he has not reduced into writing Exs.P.1 ti P.3 and P.6 and according to him, they have been written by the Constables to his dictation. On these admitted facts, the next question that arises is whether really to his dictation, the constables reduced them into writing is to be proved. No one else excepting this witness comes forward either to speak to the truth that to the dictation of P.W.4, these documents Exs.P.1 to P.3 and P.6 have been reduced into writing by the constables and therefore the other witnesses who appear in the scene as P.Ws.1 and 3 cannot also be trusted so far as coming into being of these vital documents Exs.P.1 to P.3 and P.6. Likewise, very many inconsistencies have been brought-forth in the intimation given under Section 57 of the NDPS Act as it comes to be seen from the effective cross examination of this witness. Moreover, this witness would not offer any reason for himself having not reduced these documents into writing but he would make a mention of the names of two constables one Subramaniam and the other Paulraj who have written the information mahazar and Form-95, whereas the said Subramaniam has not been examined as a witness at all and the said Paulraj, even-though examined as P.W.1, has not spoken anything about this information regarding recording of this document Ex.P.6. No explanation comes-forth as to why P.W.4 himself has not reduced these documents into writing when it is incombent on his part to do the same.
23. While such being the admitted facts of these vital documents Exs.P.1 to P.3, P.6 and P.7 coming into existence, needless to mention the contents of these documents regarding veracity of the case of the prosecution pertaining to the information said to have been received, inspection to the spot, search and arrest which have absolutely no independent attestation available, the entire prosecution case has to be looked with the suspicious mind and not beyond the reasonable doubt. The place of occurrence wherein the accused was spotted, the search and seizure was done is admittedly a bus stand and it is also an admitted fact that there were lot of individuals, but according to the prosecution, no individual has come forward to attest the mahazar of the other documents and therefore in spite of having all the facilities, since the occurrence has taken place at the bus stand in the day light, if no individual has come forward to stand as a witness or to attest the documents prepared by the Police, no mention need be necessary that the prosecution case at this score has to be viewed with suspicion. Though for name sake, the bare necessity of law has been complied with regarding the registration of the case whether the same has been done in a reliable manner so as to approve is relevant for consideration, which test the prosecution case cannot be said to have surpassed.
24. Coming to the mandatory compliance of Section 50 of NDPS Act also, though Ex.P.1 has been reduced into writing by P.W.4, it is doubtful whether really the accused would have been appraised of his legal right to be searched before a Gazzetted Officer or the Magistrate as it is mandatory on the part of the prosecution officials to appraise him of his right and then to act in accordance with the willingness of the accused. Even though it has been reduced into writing by P.W.4 in Ex.P.1, as already seen he has not written the same by himself, but some of the constables to his dicta tion and therefore, since such facts do not find place in this Exhibit, the same becomes fainted and it further becomes doubtful whether really the accused would have been apprised of his right under this section and whether he opted for being searched by the Police themselves, as it is projected by the prosecution. Therefore under this score also the prosecution cannot be said to have proved its case beyond reasonable doubts.
25. It is further the admitted case that the documents and the seizure have been produced before the Court and before the Chemical Examiner in a belated manner with no proper explanation coming forth and hence this delay also affects the case of the prosecution in no smaller measure.
26. In short, this Court is unable to accept that on the spot no independent witness was able to be secured to witness the occurrence and to sign the documents in spite of the place of occurrence wherein the accused is alleged to have sighted and searched and the contraband seized being a bus stand. This Court is also unable to accept the manner in which P.W.4 has not reduced Exs.P.1 to P.3 and P.6 into writing by himself for no reason assigned nor examining those who reduced them into writing as witnesses to these aspects and hence these documents become fainted with illegality relying on which no valid decision could be arrived at. The manner in which under Ex.P.1, the mandatory provision of law under Section 50 is said to have complied with is also highly doubtful and in fact these documents - Exs.P.1 to P.3 and P.6 - could only be taken as a self-serving documents without having much validity or force to be used as material documents in proof of the case, and therefore, it has to be concluded that neither the prosecution has put up a strong case nor has it let in abundant, voluminous and overflowing evidence in proof of its case to prove the same in the manner required by law and in these circumstances, this Court is left with no choice, but to cause its interference into the Judgment of the trial Court.
27. The trial Court has appreciated the evidence in strips and in segments without looking into the entire case in an integrated manner, on an overall consideration of all the facts and circumstances and the evidence adduced therein and thus has failed to arrive at the right conclusion and therefore, the appreciation of evidence by the trial Court is nothing but perverse and unacceptable in law. Like any other Criminal case, a case arising out of NDPS Act is also to be proved with such standard of proof beyond reasonable doubts and the case in hand is no exception for the general rule and in these circumstances, the only course open for this Court is to arrive at the following decision:
In result,
(i) the above Criminal appeal succeeds and the same is allowed.
(ii) The Judgement dated 07.06.2001, made in CC.No.95 of 2000, by the Court of Special Judge for Essential Commodities Act Cases, Thanjavur, is set aside.
(iii) The appellant/accused is found not guilty of the offences charged.
(iv) The appellant/accused is ordered to be set at liberty forthwith, if he is not required in any other case.
Index:Yes Internet:Yes ksr To
1.The Special Judge for Essential Commodities Act Cases, Thanjavur.
2. The Public Prosecutor (Criminal side) High Court, Chennai.