Madras High Court
Mary Alias Meharunnisa vs State Represented By The on 17 June, 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.06.2010 CORAM THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM CRL.A.Nos.405, 1019 and 616 of 2005 Mary alias Meharunnisa .. Appellant/Accused-1 in Crl.A.No.405 of 2005 Mohammad Yusuf .. Appellant/accused-2 in Crl.A.No.1019 of 2005 Prakash .. Appellant/accused-3 in Crl.A.No.616 of 2005 versus State represented by the Inspector of Police NIB CID, Chennai. ..Respondent/Complainant in all Crl.As. Criminal Appeals filed against the Judgment passed in C.C.No.169 of 2003, on the file of the Principal Special Judge, Special Court under NDPS Act, Chennai, dated 29.04.2005. For Appellants : Mr.R.Rajan in Crl.A.No.405 of 2005 Mr.G.M.Shankar in Crl.A.No.1019 of 2005 Mr.R.C.Paul Kanagaraj in Crl.A.No.616 of 2005 For Respondent : Mr.V.R.Balasubramaniam Additional Public Prosecutor in all Crl.As. ----- J U D G M E N T
The appellants in Crl.A.No.405 of 2005, Crl.A.No.1019 of 2005 and Crl.A.No.616 of 2005 are accused 1 to 3 in C.C.No.169 of 2003, on the file of the learned Principal Special Judge, Special Court under NDPS Act, Chennai, and they all stand convicted for the offences under Sections 8(c) read with 21(b) of NDPS Act, 1985, and they are sentenced to undergo five years rigorous imprisonment and to pay a fine amount of Rs.25,000/- each, in default to undergo six months rigorous imprisonment. Aggrieved by the said conviction and sentence all the appellants have preferred these criminal appeals.
2.The prosecution case in brief is as follows:
P.W.1 who is the Sub Inspector of Police, NIB CID, was on duty on 07.02.2003 and at about 7.45a.m, he received an information that three persons by name Mary, Mohammad Yusuf and Prakash were to come near Dr. Ambedkar Government Arts College, Vyasarpadi to sell heroin between 9.30a.m and 1.15p.m. P.W.1 recorded the said information in Ex.P.1 and placed it before the Deputy Superintendent of Police - P.W.2. At about 8.00a.m., he left the NIB CID office along with the police party and reached the spot at about 9.30a.m., and while keeping surveillance, at about 9.30a.m, one lady and two male persons came near the place and they were identified by the informant who are the accused 1 to 3. P.W.1 intercepted the accused and enquired their names and addresses. He also informed that they were required to be searched and informed them about their right to be searched either before a learned Judicial Magistrate or before a gazetted officer. The accused declined the option and stated that they could be searched by the officers themselves. Then P.W.1 called two persons to stand as witnesses by name Arul and Mariammal who were present at the scene of occurrence, but they have declined. Therefore, P.W.2 required the Sub Inspector of Police, NIB CID - P.W.4 and another woman constable to stand as witnesses. The first accused was searched with the help of the woman constable Vijayalakshmi. On search, heroin was found in a white polythene bag which was kept in a white colour bag. The heroin was weighed and it was found to be 200 grams. P.W.1 took two samples, each weighing 5 grams. The second accused was searched and he was carrying one green colour bag and inside the bag, heroin was found inside a white polythene cover and the heroin was weighing about 150 grams. Similarly two sample packets weighing 5 grams were taken. The third accused was searched and he was carrying a blue colour bag and inside the bag, a white colour polythene bag containing heroin was found which was weighing about 150 grams. Two sample packets were taken. The remaining heroin seized from the accused were sealed and a mahazar Ex.P.5 was prepared, in which the signatures of P.W.4 and another woman constable were obtained. All the accused were arrested and they were brought to the NIB Office along with the properties seized. P.W.1 came to the police station and registered a case in Crime No.8 of 2003 under Section 8(c) r/w 21(b) of the NDPS Act.
3.P.W.5, Inspector of Police who took up investigation recorded the statement of witnesses and also sent the properties to the Court and Form-95 and also gave requisition for sending the properties for chemical analysis.
4. P.W.3, Chemical Analyst on analysing the sample properties gave a report Ex.P.21 stating that the samples were found to be heroin containing Di-Acetyl-Morphine. P.W.5 after completing investigation laid the final report.
5. The prosecution in order to establish its case, examined P.Ws.1 to 5, marked Exs.P.1 to P.22 and produced material objects M.O.1 to M.O.9. When the accused were questioned under Section 313 Cr.P.C., with regard to the incriminating materials available against them, they denied their complicity and they have not chosen to examine any defence witness. The trial Court after analysing the evidence, convicted the accused as stated above.
6. The learned counsel appearing for the appellants/accused submitted that all the evidence recorded in this case are prepared falsely and the first accused being a lady, should have been searched only by a lady officer as per Section 50(4) of NDPS Act, but the prosecution has not complied with the said provision and Vijayalakshmi woman constable not examined before the Court. The learned counsel further submitted that the prosecution has not examined any independent witnesses to prove the seizure and search from the accused.
7. Per contra, learned Additional Public Prosecutor submitted that though P.W.1 called two persons by name Arul and Mariammal to stand as witnesses, as they refused, P.W.1 called P.W.4 and and another Head constable to stand as witnesses. The first accused was searched only with the help of the woman constable Vijayalakshmi and she also signed in the mahazar and therefore there is no violation of Section 50(4) of NDPS Act.
8. This court considered the submissions made both parties and perused the records. It is the evidence of P.W.1 that he went to the spot only on receiving the information, but has not gone to the spot with any independent witness. He had seen all the three accused at the time of seizure. According to him, he called two independent witnesses Arul and Mariammal and as they refused to stand as witnesses for the search and seizure, P.W.4 and another woman constable were called to stand as witnesses. Though according to P.W.1, near the shop, number of persons were available, P.W.4 had stated that they did not make any attempt to call any other person to stand as a witness when Arul and Mariammal refused to stand as witness. Further when Arul and Mariammal refused to stand as witness, P.W.1 has not taken any action as per Section 100(8) Cr.P.C which is as follows:
"100. Persons in charge of closed place to allow search.
(1) to (7).........
(8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code (45 of 1860)."
9. Further the woman constable Vijayalakshmi with the help of whom the first accused lady was searched, is not examined before the court and no reason is given by prosecution for the non-examination.
10. The evidence let by the prosecution through PWs.1 and 4 regarding the search and seizure of the contraband is not credible and so convincing to this Court.
11. In the result, the conviction and sentence imposed on the appellants/accused are set aside and they are acquitted. All the three criminal appeals are allowed. The fine amount if any paid shall be refunded to the accused forthwith.
ksr To
1.The Principal Sessions Judge, Special Court under NDPS Act, Chennai
2.The Inspector of Police, NIB CID, Chennai.
3.The Public Prosecutor, High Court, Chennai