Madras High Court
I. James Robert Nax vs Senior Intelligence Officer, ... on 22 March, 2004
Author: R. Banumathi
Bench: R. Banumathi
JUDGMENT
1. Second Accused in C.C.582/2003 on the file of Special Judge for E.C. Act and NDPS Act Cases, Madurai is the appellant. By the judgment dated 27.6.2003, the trial court convicted the Appellant/Accused under Section 8(c) read with 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act (for short "NDPS Act") and sentencing him to undergo rigorous imprisonment for ten years and to pay a fine of Rupees One Lakh.
2.Gist of charges framed against the accused and the finding of the trial court is as noted below:
Charge Gist of charge Against which accused Finding Sentence 1 u/s 29 of the NDPS Act For conspiracy to transport CHARAS A1 and A2 A1 and A2 found not guilty Acquitted 2 u/s. 8(c) r/w 20(b)(ii)-
NDPS Act possession of 3508 Kg of Charas-
worth Rs.3,50,80,000/-
A1 and A2 A2 found guilty A1 found guilty in split up case C.C.317/96 Convicted and Sentenced to Rigorous Imprisonment for ten years-
Fine of Rupees one lakh 3 u/s. 23 r/w 28 NDPS Act Transhipment of Narcotic drugs A1 and A2 A2 found not guilty Acquitted
3.An unique instance of huge recovery of 3,508 Kgs of CHARAS worth Rs.3,50,80,000 from private boats M.S. SONIA and EBENESER RATHINAM. Case of prosecution could be elaborated thus:
On 15.2.96-6.30 a.m, P.W.1 was working as Intelligence Officer, D.R.I, Tuticorin. At that time, an informer gave information about the concealment of 175 parcels of Narcotic Drug in two boats namely M.S. SONIA and EBENESER RATHINAM stationed at Fishing Harbour, Tuticorin. At about 7.00 hours on the same day he reduced the information into writing and submitted to P.W.2 who was camping at Tuticorin for further action. Ex.P1 is the Report.
4.Thereafter P.W.2 rushed to the fishing harbour referred in Ex.P1 along with other Customs Officials. He also requested P.W.4-Pauldona and Rajeswaran to be witnesses for search of Launches M.S. SONIA and EBENESER RATHINAM.
5.P.W.2 and his Team of Customs Officials, along with the independent witnesses, including P.W.4, went near the fishing Launch M.S. SONIA which was berthed in the southern side of the fishing harbour. A1 and A2 were available in the said Launch M.S. SONIA and they revealed their identity.
6.P.W.2 informed A1 and A2 that they have right to opt for their personal search by any other Government Gazetted Officer. For that, A1 and A2 opted to be searched by P.W.2 and his men. However, on search of A1 and A2, no incriminating things were recovered. Then P.W.2 searched the Launch M.S. SONIA in the presence of A1 and A2 and P.W.4 and other witnesses and found 37 polythene bags kept below the deck. On examination, it was found to contain 316 numbers of 1 Kg pocket.
7.Then P.W.2 along with the said persons including P.W.4 went near the Launch EBENESAR RATHINAM. No one was available in the Launch. P.W.2 searched the launch and found 139 polythene bags kept below the deck. On examination, it was found to contain 3192 numbers of 1 Kg pocket.
8.P.W.2 then opened all the 1 Kg pocket and tested a few pockets from both the Launches by Narcotic kit, which answered positive for the Narcotic Drug HASHISH. Then P.W.2 seized the above said drug totally in 179 polythene bags weighing 3508 Kgs., on the reasonable belief that they are liable for confiscation under NDPS Act. He also seized the two Mechanized Fishing Launches along with accessories and Fishing Nets which were used for the transport of the said drugs under NDPS Act.
9.P.W.2 thereafter arranged 176 polythene bags containing 3508 Kgs. into 44 lots and drew the representative samples from each lot weighing 30 grams totally 88 pockets and marked as L1S1, L1S2 to L44S1 and L44S2. All the samples and 44 lots were sealed in the presence of P.W.4 and A1 and A2 and obtained their acknowledgment. The value of HASHISH was arrived at Rs.3,50,80,000/-. These transactions took place between 8.00 hours to 21.00 hours. P.W.2 seized the same under Ex.P2- Mahazar. P.W.2 also gave a copy of the Mahazar to A1 and A2 and obtained their acknowledgment.
10.On 16.2.96, Papainston Samuel recorded the statement of the first accused under Section 67 of the NDPS Act in the presence of P.W.2. Ex.P3 is the statement of the first accused wherein he signed on the same day the second accused on his own writing given a statement under Section 67 of the NDPS Act in the presence of P.W.2. Ex.P4 is the statement of the second accused.
11.On 16.2.96 at about 12.15 hours P.W.2 arrested the first accused, after explaining the reasons for the same. Ex.P5 is the Arrest Memo of the first accused. At the same time,P.W.2 arrested the second accused after explaining the reasons for the same. Ex.P6 is the Arrest Memo of the second accused.
12.Then P.W.2 submitted a detailed report Ex.P7 about this case under Section 67 of the NDPS Act to the Assistant Director of Customs and detailed his acknowledgment.
13.On 16.2.96 he submitted the accused along with the properties to Judicial Magistrate No.1, Tuticorin with Ex.P8-Remand Report.
14.P.W.2 then prepared a forwarding memo on 17.2.96. Submitted the sample pockets and 44 bags containing HASHISH through P.W.7 to the Customs seized Goods Godown, Tuticorin for safe custody. P.W.6 who was incharge of the Godown received the seized property and given the acknowledgment Ex.P9 forwarding Note with acknowledgment.
15.Similarly P.W.2 has also submitted Wooden Launch M.S. SONIA and its contents to P.W.6 with a survey and History and obtained acknowledgment from him. Ex.P10 is the Report.
16.On the same day, P.W.2 has also submitted the Wooden Launch EBENESER RATHINAM to P.W.6 with a Survey and History Report and obtained acknowledgment from him. Ex.P11 is the Report.
17.Samples S1 to S44 were sent to Chief Chemist, Customs House, Chennai for chemical test under Ex.P12. The samples were sent back from the Chemist Department of Customs on the ground that Chief Chemist Department of Customs is not possessed of the instrument to find out the quantitative test of the sample. Therefore the samples were sent back at the first instance without any test. Once again the samples were re-sent to the Chief Chemist of Customs, Chennai on 14.3.96 under Ex.P14-Forwarding Note. Under the supervision of Chemist Shantha P.W.3-Subbulakshmi had conducted the test on 44 samples and found each of the samples is in the form of dark brown coloured solid mass with the characteristics odor of HASHISH. Ex.P15 is the Report. Remnant samples were sent back to the court on 10.5.96.
18.The contraband was kept in safe custody with the Customs House. Following the procedure under Section 52A of the NDPS Act, Camp Court was constituted at Tuticorin Customs Office. Pre-trial samples were drawn. Photographs were also taken with the permission of the court. Thereafter the court has permitted the destruction of the contraband. Pre-trial samples drawn in the Customs House were again sent to Central Revenue Control Laboratory, New Delhi through court under Ex.P18. On analysis, all the 44 samples were found to be containing CHARAS. Ex.P19 is the Report. Remnant samples (M.O.2) were returned from the Delhi Laboratory. After obtaining the Report from the Delhi Central Laboratory (Ex.P19) necessary steps were taken for disposal of the contraband following the procedure under Section 52A of the NDPS Act.
19.House Search was conducted in the house of Parthis Fernando (Ex.P21) on 16.2.96 and no incriminating articles were seized. Houses of the accused were also searched in the presence of inmates of the house on 15.2.96. Ex.P22 and P23 are the Mahazars. No incriminating articles were seized. Upon completion of the investigation, P.W.2 laid the complaint against the first accused Suresh (against whom the case was split up in C.C.317/96 and disposed of) and the appellant and other absconding accused SIMEON FERNANDO and RATHINAM on 10.5.96. Ex.P20 is the complaint.
20.To substantiate the charges against the accused, in the trial court, P.Ws.1 to 8 were examined. Ex.P1 to P28 are marked. The accused were questioned under Section 313 Cr.P.C about the incriminating evidence and the circumstances. The accused denied the same and pleaded that a false case is foisted against him.
21.Upon consideration of the evidence, the learned Special Judge found that the prosecution has proved possession of the contraband by the accused from the evidence of P.Ws.2 and 4 coupled with Ex.P1 to P4. Pointing out that the accused had not accounted for the possession satisfactorily, the learned Special Judge raised presumption under Section 54 of the NDPS Act in finding that the possession of the accused was conscious possession. Considering the huge value and other circumstances, Appellant/A2 was sentenced to imprisonment of ten years and fine of Rupees One Lakh was imposed upon him as aforesaid in para 2.
22.The first accused absconded after questioning under Section 313 Cr.P.C. The case against the first accused was split up in C.C.317/96 on 23.6.2003. Upon consideration of the evidence and the materials, the first accused was also convicted under Section 8(c) read with 20(b)(i) of NDPS Act and sentenced to undergo imprisonment and fine is also imposed.
23.Aggrieved over the conviction, Appellant/A2 has preferred this appeal. Taking me through the evidence, the learned counsel for the appellant Mr.O. Venkatachalam assailed the reasonings of conviction and contended that no conscious possession could be attributed to the Appellant/A2. Submitting that the appellant was only a Clerk under his employer-SIMEON FERNANDO and that he was only acting under the direction of his employer, it is submitted that no conscious possession could be attributed to the appellant. Findings of the trial court is attacked contending that the trial court erred in raising the presumption under Section 54 of the NDPS Act even when the actual possession was not proved by cogent and reliable evidence. Prosecution case is mainly assailed on the ground of non-compliance of mandatory requirements of Section 52-A-procedure adopted for the disposal of the property. The procedure followed in sending the sample to the Chennai Laboratory and to the Central Laboratory at New Delhi is also attacked by the appellant.
24.Submitting that all the mandatory requirements are well complied with, the learned Special Public Prosecutor for Customs has laid emphasis upon the recovery of big haul of HASHISH/CHARAS from the private Launches and submitted that considering the seizure of huge quantity of CHARAS the accused cannot disown knowledge of possession. Placing reliance upon Section 35 and Section 54 of the NDPS Act the learned Special Public Prosecutor further submitted that under Section 35 the trial court has rightly raised the presumption of mental state and under Section 54 the presumption of actus res. Pointing out that there is no satisfactory explanation by the accused rebutting the presumption, the learned Special Public Prosecutor submitted that when no reasonable explanation is forthcoming from the accused, the trial court rightly convicted the accused. Drawing the attention of the court to the process adopted in disposing the property, it is submitted that the requirements of Section 52A well complied with and the accused cannot have any valid grievance.
25.Upon careful reassessment of the evidence, materials on record, judgment of the Special Court and submissions of both sides, the following points arise for determination in this appeal:-
(i)Whether the Complainant/Prosecution seized the contraband viz., HASHISH at the time, place and date in the manner alleged by them from the Wooden Launches M.S. SONIA, EBENESER RATHINAM?
(ii)Whether the appellant is right in contending that there was no conscious possession and that no presumption could be raised under Section 35 of the NDPS Act?
(iii)Whether the procedure adopted for search, seizure and sending the contraband to the Chemical Analysis suffer from non-compliance of mandatory provision?
(iv)Whether the conviction of the Appellant/A2 under Section 8(c) read with 20(b)(i) of NDPS Act and the sentence of imprisonment and quantum of fine warrant any interference?
26.On information received by P.W.1, as per Ex.P1 and as per his direction, on 15.2.96-8.00 a.m, at the Fishing Harbour at Tuticorin, P.W.2 in the presence of P.W.4 and another Official Witness Rajeswaran and other Customs Officials inspected the Wooden Launch M.S. SONIA and EBINESER RATHINAM. The Wooden Launches found to be having M.S. SONIA Launch .. 316 Pockets (1 Kg each) kept in 37 polythene bags EBENESER RATHINAM .. 3192 Pockets (1 Kg each) kept in 139 polythene bags
----
3508 pockets each weighing one Kg Totalling 3508 Kg.
27.Evidence of P.Ws.2 and 4 as to Search and Seizure is cogent and consistent. Their evidence of Search and Seizure of 3,508 Kgs pockets of HASHISH is strengthened by the contemporaneous Mahazar-Ex.P2 which is also signed by the accused.
28.Samples taken from the bags were labelled as S1 to S4 and sent to the Chemical Analysis. In the first instance, Chemist Department of Customs, Chennai returned the samples stating that the Department was not possessed of the instrument to find out the quantitative test of the sample. Thereafter the court again sent the samples. Under the supervision of Chemist Shantha-P.W.3-Subbulakshmi had conducted the test on 44 samples and found:-
"Each of the forty four samples is in the form of dark brown coloured solid mass with the characteristics odour of hashish. Each is charas and is covered under NDPS Act, 1985."
It was a huge haul and unique seizure of this kind, being one of the biggest seizure of HASHISH in India. Before destruction of the property, pre-trial samples were again drawn from the contraband. For confirmation of the result of the analysis (under Ex.P15) the samples were sent to Central Revenue Control Laboratory, New Delhi. The samples were tested. Each of the forty four samples is CHARAS and is covered under NDPS Act 1985. Thus the contraband is proved to be CHARAS-Tetrhydro Cannabipol.
29.At the time of Search and Seizure, Appellant/A2 and the absconding accused Suresh were present in the Launches M.S. SONIA and EBENESER RATHINAM. Now the main contention of the appellant is that he has no knowledge about the contraband and that there was no conscious possession of the contraband and the trial court has not properly appreciated the evidence from that angle.
30.According to the appellant, he is employed under one SIMEON FERNANDO as a Clerk. On 15.2.96 his owner called him to accompany him to go over the ship, since other fishermen are on leave. According to the appellant, he had reluctantly accompanied his employer and that Suresh (A1) had also accompanied them. In the middle of the sea, there was exchange of polythene bags from EBENESER RATHINAM to M.S. SONIA and that the bags were kept down below the deck and the appellant has no knowledge about the contraband. In his statement-Ex.P4, the appellant has pleaded ignorance about the contraband and stated that he came to know about the contraband only when the officials had inspected the Launch conducting search and seizure. The following is the excerpts of the statement of the appellant in Ex.P4:-
"vq;fs; Kd;dpiyapy; nrhjid bra;J vq;fs; glfpy; ,Ue;J 37 ghypjPd; K:l;ilfisa[k; bgndrh; glfpy; ,Ue;J 139 ghypjPd; K:l;ilfisa[k; ifg;gw;wpdPh;fs;. ghypjPd; K:l;ilfspd; ,Ue;j bghUs; mjpfhhpahd ePq;fs; vq;fs; Kd;dpiyapy; nrhjid bra;J ghh;j;J gpd;g[ nghij kUe;J vd Tw nkw;go ghypjPd; igfspy; ,Ue;jit nghij kUe;J vd mwpe;J bfhz;nld;. vdf;Fk; ifg;gw;wg;gl;l nghij kUe;Jf;Fk; ve;jtpjkhd rk;ge;jKk; fpilahJ."
31.Thus the main contention urged by the appellant is that there was no conscious possession of the contraband. He pleads ignorance-
(i) of the Polythene bags;
(ii)the contents thereon From the facts culled out from the evidence and Ex.P4-Statement of the accused, the presence of the accused in the Launch at the time of Search and Seizure is well established. His contention that he had no knowledge of the contraband and that the same was concealed in the Launch is to be considered in the light of the evidence and other circumstances.
32.Section 20(b)(i) of the NDPS Act provides punishment for possession or transportation of Ganja or Cannabis/Charas. Possession is made up of two elements, firstly corpus - the element of physical control and secondly the animus or intent with which such control is exercised. It is conscious possession, which is contemplated by penal statute, which provides and penalises possession of any contraband article or thing. Possession for the purpose of NDPS Act must not be in the sense of physical control over the article but the second element of animus or intent to possession must also be there. That only conscious possession invites penal consequences. Thus possession means conscious possession and not mere custody without awareness of such possession.
33.Section 35 of the NDPS Act provides for presumption of culpable mental state. It provides that in any prosecution for an offence under this Act, which requires culpable mental state of the accused, the Court shall presume the existence of such mental state.
Before that presumption could be raised, prosecution is obliged to establish by cogent and reliable evidence that the appellant was in exclusive and conscious possession of the contraband in order to sustain the conviction for illegal possession of the contraband. Onbehalf of the appellant elaborate arguments are advanced contending that the prosecution lacks in evidence showing the appellant's conscious and exclusive possession and that no presumption could be raised under Section 35 of the NDPS Act. In this regard the learned counsel for the appellant has placed reliance upon 1996 Crl.L.J 148 and 2001 Crl.L.J 1949.
34.Main point for consideration is whether such conscious possession of the appellant is established by the prosecution. Recovery of 3,508 Kgs of CHARAS in a private Launch was an unusual circumstance and stated to be one of the biggest seizure of its kind in HASHISH in India. In its application filed under Section 52A of the NDPS Act (Ex.P25) P.W.2 has noted the following remarks about the seizure:-
"This is a unique seizure of this kind, being one of the biggest in India. Unlike Opium, Heroin or Dry Ganja seizure of Hashish is an uncommon occurrence."
35.Whether the accused had knowledge and conscious possession could be gathered from the wealth of information elaborated in Ex.P4-statement by the accused. According to the appellant, he was employed by his employer to sell the fishes and to hand over the account and is incharge of the maintaining accounts of his employer. Being incharge of maintaining the accounts, on 15.2.96 the appellant had no reason to be in the Launch. On 15.2.96-absence of the workmen and absence of driver of the boat appear to be deliberate and intentional. The other indications are that they were purposely kept out of the work on 15.2.96. According to the appellant, he has obliged his employer-Simeon Fernando. This plea of the accused lacks any force. The circumstances that other workmen were kept out and that the appellant and A1-Suresh were taken clearly indicates that some confidential persons were required in the Launch to take care of the contraband.
35.Everything appears to be pre-planned, deliberate and intentional. As said earlier, on 15.2.96 the Driver was also absent. The owner himself had driven the boat. The other workers were kept away. The appellant, A1-Suresh and Anthony Raj (brother of Simeon Fernando) and a new person by name Nesan went in the boat. The appellant was quite conscious of the absence of other workmen and driver. In other words, he was conscious of the happenings around. He knew about the signal in the mid sea and transshipment of polythene bags from EBENESER RATHINAM to M.S. SONIA. The Launcher arrived in Fishing Harbour, Tuticorin in the mid-night. While Nesan, Simeon Fernando and Ebineser left, the appellant and A1-Suresh were directed to be in the boats obviously to keep watch on the contraband. The appellant and other accused were thus keeping watch over the contraband. Travel of the appellant in the sea boat, his knowledge of transshipment and narration of other happenings are spontaneous. One is to be too nave to accept the contention of the appellant that he had no knowledge of the contraband. By the facts and circumstances and the statement of the accused in Ex.P4, the prosecution has established by cogent evidence the possession of the contraband by the appellant. Relying upon the same, the trial court rightly found that the appellant was in lawful possession of CHARAS and was consciously in possession of the same.
36.Under Section 35 of the NDPS Act the presumption is for the existence of culpable mental state and the burden shifts on the accused, in case the possession of narcotic drug or psychotropic substances is established and under Section 54, the presumption is for the offence under Chapter IV and the burden shifts on the accused to account satisfactorily for the possession of the narcotic drug or psychotropic substance. Once that presumption of guilty of animus and knowledge is proved, burden shifts on the accused to establish that he was not aware of the contraband. No such explanation is forthcoming from the accused. In the light of eloquent facts and circumstances appearing in the prosecution evidence, the accused cannot be said to have discharged the burden. The contention of the accused that the prosecution has not established his actual possession does not merit acceptance.'
37.Compliance of Section 50 and 52A: Main grievance of the appellant are:-
(i)Non-compliance of Section 52-in sending the contraband to the court and to the chemical analysis;
(ii)Section 52A-Non-compliance of the procedure to be adopted in destruction of the contraband.
Elaborate arguments are advanced on the non-compliance of Section 52A in the destruction of the contraband.
38.Section 52 of the NDPS Act comes into operation after the arrest and seizure under the Act. The seized contraband and objects are remanded to the court which are enumerated in Ex.P8-Remand Report. As per Ex.P8-List of Properties remanded are:-
1.Hashish weighing 3508 Kgs (Leass samples drawn in 44 sealed covers)
2.Representative samples - L1S2,L2S2,L3S3-L44S44 (44 Nos.)
3.One Wooden mechanised launch - M.S. Sonia
4.One wooden mechanised launch - Ebenezer Rathinam
5.Fishing nuts - 22 nos.
Materials Objects were remanded to court on 16.2.96. Thus it is clear that the recovered properties were immediately remanded to the court on 16.2.96. (R.P.R.No.299/96). Accused were remanded on 16.2.96. Along with the same, Survey and History Sheet of the Wooden Launch M.S. SONIA and EBENESER RATHINAM (Exs.P10 and P11) were also produced. Since the properties were remanded to the court at the earliest opportunity, the appellant can have no valid grievance in non-compliance of Section 52 of the NDPS Act.
39.There was no sufficient space in the property room of the court to keep the property safe. Since the properties were valuable, the court has directed the property to be returned and handed over to D.R.I, Trichy for safe custody with a direction to produce the same as and when required by the court. This order of return of the property to D.R.I, Trichy for safe custody was passed by the court on 20.6.96. Ex.P26-order of return of property by the court reads:-
"The case property concerned in F.No.VIII/48/5/96-DRI, Trichy has been remanded in RPRNo.299/1996 ordered to be returned since there is no sufficient space in the property room to keep the property safe.
The Superintendent,D.R.I, Trichy is required to produce the same before this court as and when required by this court."
Thus it was only the court which ordered the return of the contraband to D.R.I, Trichy for safe custody. Thus there is compliance of Section 52 of the NDPS Act. The grievance of the appellant of non-compliance of Section 52 has no merits.
40.Main contention urged by the appellant is non-compliance of Section 52A. Sub-section (1) of Section 52A of the NDPS Act gives power to Central Government for prescribing the procedure from time to time for disposal of the seized Narcotic Drug. Thus, Section 52A of the Act postulates disposal of seized Narcotic Drugs and Psychotropic Substances and lays down the procedure for disposal. Section 52(2) lays down inventory to be made and that the inventory certified by the Magistrate. Section 52A(2) of the NDPS Act reads thus:
"...The officer referred to in sub-section (1) shall prepare an inventory of such Narcotic Drugs or Psychotropic Substance containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of-
(a)certifying the correctness of the inventory so prepared; or
(b)taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or
(c)allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.
41.Now the main contention advanced is that such inventory was not taken by the Senior Intelligence Officer nor was it certified by the Special Judge before destruction of the property. Upon careful consideration of the materials on record, in my view, this contention is devoid of merits. In Ex.P2-Mahazar list of seized contraband is clearly enumerated. For each one polythene bag of seizure from M.S. SONIA Launch identification marks are given. Illustratively we may refer to one such identification marks:-
Sl.No Identifica tion Number Number of pockets in each bag Weight of each polythene bag 1 MSSB-1 20 20.500 Likewise for the seizure from EBENESER RATHINAM identification marks were given. Illustratively we mayk refer to one such identification marks:-
Sl.No Identifica tion Number Number of pockets in each bag Weight of each polythene bag 1 ERA-1 20 21.000 Ex.P2-Mahazar is signed by the appellant and the absconding accused Suresh. The details relating to the quantity and identification particulars of the contraband and the packing is substantial compliance of the inventory. It is to be noted that Ex.P2-Mahazar was sent to the court at the earliest opportunity on 16.2.96 when the accused were remanded.
42.Ex.P24-Crl.M.P.960/96: Before the Special Court, this application was filed praying "to have a sitting at Tuticorin Customs and to draw pre-trial samples of the seized drug and also to order for destruction of the seized drug."
On the orders passed by the court, pre-trial samples were drawn from the seized property at the Camp Court, Tuticorin on 20.6.96.
43.Crl.M.P.1298/96: Thereafter this application was filed seeking permission of the court for the destruction of the sample. On that application, the following order was passed:-
"Notice given. Heard. Accused have no objection. Petition is allowed. The Department viz., D.R.I, Trichy is hereby permitted to dispose of property in this case as per the procedure under N.D.P.S Act keeping the pre-trial samples. The petitioner is directed to intimate this court regarding the disposal of the property in this case C.C.No.317/96 viz., Hasish within 30 days from the date of the disposal according to law."
44.From para 24 of the judgment of the trial court it is clear that in pursuance of the orders passed in Crl.M.P.960/96 and Crl.M.P.961/96 (Ex.P24 and P25) Camp Court was constituted at Tuticorin Customs Office and pre-trial samples were drawn. Photographs were also taken with the permission of the court. Samples and other properties were once again handed over to the complainant for safe custody. Thus permission was obtained from the court for drawing pre-trial sample. Pre-trial sample was drawn before the Special Judge, Camp Court and photographs were also taken with the permission of the court. Thus there is substantial compliance of Section 52A of the NDPS Act.
45.Pursuant to Ex.P17-Requisition (20.6.96) from P.W.2-Senior Intelligence Officer, pre-trial samples were again sent for Chemical Analysis to the Chief Chemist at Central Revenue Control Laboratory, New Delhi. The samples were tested and found to be containing CHARAS as noted earlier (Ex.P19). There could be no valid grievance against the mode of drawing representative sample and sending them again to Central Revenue Control Laboratory, New Delhi which was only an additional test to confirm the earlier Analysis Report.
46.In this appeal, much arguments are advanced assailing the procedure adopted for drawing pre-trial sample in Tuticorin Customs Office and the destruction of the property. It is to be noted in all the applications Crl.M.P.960/96 and Crl.M.P.1298/96 notice was served upon the accused and by perusal of the order in Crl.M.P.1298/96 it is seen that the accused had no objection. Non-raising of any objection before the trial court only indicates that the accused was satisfied about the procedure adopted. That being so, now it is not open to the accused in raising the objection as to the drawing of the pre-trial sample and destruction of the property.
47.The procedure contemplated under Section 52A is only directory. Drawing of pre-trial sample and the destruction of the contraband is an official act. Under Illustration (e) of Section 114 of the Indian Evidence Act presumption is to be raised that all the official acts were properly done.
48.At this juncture, we may refer to yet another objection raised by the Appellant/Accused. In Crl.M.P.1298/96 contraband was ordered to be disposed of on 26.8.96. But the contraband was destroyed only on 4.5.98. The delay in the destruction of the property is yet another argument advanced by the accused. The learned counsel for the appellant contended that the court has ordered for destruction of the contraband keeping in view the nature of contraband that it is hazardous. While so, the Department had taken at least two years time to destroy the contraband. The Certificate of Destruction of Narcotic Drugs and Psychotropic Substances (Standing Order No.1/89) and the details of the Drugs and Substances destroyed is produced. This Certificate contains particulars of the drugs, Godown Register Entry Number, Name and address of the witnesses and other details. The contraband was destroyed in the presence of Commissioner of Customs, Trichy, Additional Director General, D.R.I, Chennai and Director General, DRI, New Delhi. These Officers are said to be constituting a Committee for destruction of the contraband under the Act. The learned Special Public Prosecutor has submitted that the said Committee constituted for destruction of the contraband makes periodical visit to the respective States and destroy the property and that the accused cannot complain of any delay. The accused has got nothing to complain about the delay in destruction of the property. More so, when the accused has not complained any prejudice being caused to him.
49.In Ex.P2-Mahazar the samples taken were packed in polythene bags and described as:-
",urhad ghpnrhjidf;fhf xt;bthU gphptpYk; (Lot) cs;s 4 K:l;ilfspy; ,Ue;J bkhj;jj;jpy; 30 fpuhk; mlq;fpa ,uz;L khjphpfs; vLf;fg;gl;L ghypjPd; ghf;bfl;Lfspy; nghlg;gl;ld."
When the samples were sent for Chemical Analysis, the office of the Deputy Chief Chemist has described the samples being kept in a small plastic bag. Much arguments are advanced contending that the sample pockets received by the laboratory could have been different from the one drawn from the contraband. This contention lacks any force and does not merit acceptance. The description of the sample pocket i.e., "polythene pocket" and "plastic pocket" is only mode of describing the pocket and makes no difference. In as much as 44 samples were drawn, it is well nigh impossible for the Investigating Agency to substitute their own sample pockets. This contention is liable to be rejected.
50.The prosecution has established possession of the contraband by the accused and his knowledge about the possession. The accused had failed to rebut the statutory presumption arising against him. The reasonings and findings of the trial court for convicting the Appellant/Accused are well balanced. The finding of guilt and conviction is to be sustained. Section 20(b)(i) of the NDPS Act provides for the sentence of imprisonment extending upto ten years and fine of Rupees One Lakh. The sentence of imprisonment and the quantum of fine imposed on the appellant is also in conformity with Section 20(b)(i) of the N.D.P.S Act and warrants no interference.
51.Therefore, the conviction of the Appellant/Accused in C.C.582/2003 (dated 27.6.2003) by the Special Judge and Sessions Judge for E.C Act and NDPS Act Cases, Madurai, convicting the Appellant/Accused under Section 8(c) read with 20(b)(i) of the NDPS Act and the sentence of imprisonment and the quantum of fine are confirmed and this appeal is dismissed.