Madras High Court
Siva Kumar vs The Inspector Of Police on 11 August, 2010
Author: S. Palanivelu
Bench: S. Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11/08/2010 CORAM THE HONOURABLE MR.JUSTICE S. PALANIVELU and Criminal Appeal(MD)No.375 of 2009 1.Siva Kumar 2.Jone Paul ... Appellants Vs The Inspector of Police, NIBCID, Nagtapattinam, Thanjavur District (Crime No.47 of 2006) ... Respondent PRAYER Criminal Appeal filed under Section 378 of the Code of Criminal Procedure filed against the judgment of the Additional District and Sessions Judge, Special Court for E.C.Act Cases, Thanjavur in C.C.No.26 of 2007 dated 30.10.2008 convicting the appellants for the offences under Section 8(c) r/w.21(c) of NDPS Act and sentencing the appellants to undergo rigorous imprisonment for ten years each and to pay a fine of Rs.2,00,000/- and in default to undergo rigorous imprisonment for one year. !For Appellants ... Mr.T.K.Sampath ^For Respondent ... Mr.P.Rajendran Govt.Advocate (Crl.Side) **** :JUDGMENT
**** This Criminal Appeal filed under Section 378 of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge, Special Court for E.C.Act Cases, Thanjavur in C.C.No.26 of 2007 dated 30.10.2008 convicting the appellants for the offences under Section 8(c) r/w.21(c) of NDPS Act (for short 'the Act') and sentencing the appellants to undergo rigorous imprisonment for ten years each and to pay a fine of Rs.2,00,000/- and in default to undergo rigorous imprisonment for one year.
2. The factual matrix of the prosecution case is as follows:-
2.1. On 24.10.2006, while P.W.1 Sub-Inspector of Police, Nagapattinam, was on duty in the police station at about 10.00 a.m. his informer passed him an information to the effect that the three accused named in the case were smuggling heroin at about 11.00 a.m. from the bus stand near Kottai street in Nagapattinam and if he came with his party, he would identify them. The said information was reduced to writing by P.W.1 under Ex.P.1. He also conveyed the information to the Inspector of Police and got advice from him. Thereafter, he also appraised the Deputy Superintendent of Police and received his guidance also. P.W.1 explained the head constables Srinivasaraghavan, Ganeshamurthy, Veerannan and Muniyandi as to the information received from the informer and left for the occurrence place along with them, weighing balance and other equipments and reached the place at 11.00 a.m. They found three persons carrying one carry bag each. While they were standing in the above said bus stand, the informer told that they were the three persons whom he referred to over phone with regard to smuggling of heroin and left the place.
2.2. P.W.1 along with his police party apprehended all the three accused, introduced them by showing their identity cards. From the first accused, the carry bag with address "Mohan Textiles and Readymade,Nagapattinam"
was recovered. All the three were enquired by P.W.1. They maintained silence, when P.W.1 told them that reliable information was received that they were smuggling heroin. He further told them that whether search has to be made on them in the presence of Judicial Magistrate concerned or a gazetted officer and they had got right to be searched in their presence. But all the accused told him that there was no need to search them in that manner and P.W.1 himself might search them. P.W.1 asked the nearest shop owners and passersby to be the witnesses, but they hesitated and did not come forward. Hence, P.W.1 nominated the Head Constables Ganeshamurthy and Veeranan to be the witnesses and it was reduced to writing and the same was read over to the accused and their signatures were also obtained from them.
2.3. P.Ws.1 signed the copies of the said notice and the same was furnished to the accused separately on acknowledgment, which is Ex.P.2. On search the carry bag with possession by the first accused found to have contained a polythene carry bag covered by light green cover in which a powder was present and P.W.1 examined it by means of the equipment Kit and he learnt that it was heroin. On weighing, it was one and half kgs. He took two samples of 5 gms each in two polythene covers and covered it in a brown colour cover tied it with a thread and pasted a slip on it with NIB NGT Seal. P.W.1 also wrote his name and address in which he, witnesses and P.W.1 signed. The balance of 1.490 kgs heroin was again put into the polythene cover and thereafter, covered with a cloth and then, it was covered by paper cover which was kept inside the carry bag. It was tied with a thread and pasted with a seal slip with letters NIB NGT over which P.W.1 wrote the name and address of the accused and singed it and also he got the signatures of the accused. In the above said manner, the carry bags possessed by the second and third accused were also recovered, packed, pasted with a slip and singed. The second and third accused are reported to have possessed heroin weighing 1.5 kgs and 1.300 kgs respectively.
2.4. P.W.1 also prepared Ex.P.3 got signatures of the witnesses and the accused as well and furnished copies to them separately. He also recovered confessional statement voluntarily given by them separately. Ex.P.4 arrest report was prepared and he arrested all the accused in the presence of witnesses, namely, one Mathiyalagan and Thirukumar and copies of the same were given to the accused separately. He informed the accused that they have been arrested and told them that they might engage an Advocate to get bail and to defend the case.
2.5. P.W.1 proceeded to the police station along with the accused, witnesses and case properties and case in Crime No.47 of 2006 under Section 8(c) r/w 21(c) of NDPS Act, 1985 was registered against the accused. Ex.P.5 is FIR. He prepared a detailed report under Ex.P.6 under Section 57 of the Act and sent it to the Inspector of Police. Under Form 95, he despatched the case properties to the Court. He also sent the accused for judicial custody.
2.6. P.W.5, the Inspector of Police concerned received the FIR and taken up the case for investigation. He examined P.W.1 and other witnesses, namely, the head constables and recorded their statements. He went to the scene of crime at 9 p.m. on the same day along with P.W.1. He gave a requisition to the Court on 30.10.2006 to send the case properties for analysis. He examined the witnesses Pandi, Senthilkumar, Ayyapan, Raju, and Maheswaran and he did not record any statement from them since they stated that they did not know about the occurrence. He got the analytical report, Ex.P.9 which shows that the sample powder contained Diacetyl morphine and the samples were again subjected to analysis and a report was received stating as follows:- A.1 .... 36.34% A.2 .... 34.37% A.3 .... 31.65% 2.7. On conclusion of investigation, on 27.02.2007, charge sheet was laid by P.W.5. When all the accused were questioned under Section 313 Cr.P.C by the trial Court, as regards incriminating materials available against them, they denied complicity in the offences. They did not examine any witnesses and they have not marked any documents. The trial Court convicted and sentenced the accused as stated above.
3. The following point has arisen for consideration:-
"Whether the prosecution has brought home the guilt of the accused and established the charges as against the accused beyond all reasonable doubt?
4. Point P.W.1, the Sub-Inspector of Police, NIB CID, Nagapattinam has stated about the receipt of information with regard to smuggling of heroin and possessing of the same to his superior, namely, the Inspector of Police and the Deputy Superintendent of Police and subsequent events as well. He has deposed that on receipt of information, he reduced the same in writing as Ex.P.1 and he conveyed the message to the Inspector of Police, Nagapattinam over phone and got his advice and thereafter, he informed to the Deputy Superintendent of Police. His immediate superior officer to whom he informed over phone in respect of crime.
5. But Section 42(2) of the Act contemplates that the information recorded by him should be sent to his immediate official superior within 72 hours. Section 42(1) of the Act envisages the receipt of the information and with regard to the movement of the narcotics substances by the authority prescribed and further procedure to be adopted by him. Section 42(2) of the Act goes thus:-
"2.Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior"
6. The Supreme Court while discussing this point in 2002 (3) Supreme 597, Beckodan Abdul Rahiman Vs. State of Kerala has held as follows:-
"6.In State of Punjab V. Balbir Singh (1994 (3) SCC 299) it was held that under Section 42(2) the empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is a total non-compliance of the provisions the same affects the prosecution case. To that extent it is mandatory. The same effect is the judgment in Saiyad Mohd. Saiyad Umar Saiyad & Others V. State of Gujarat (1995 (3) SCC 610)."
P.W.1 has miserably failed to abide by the statutory requirement of sending a copy of Ex.P.1 to his immediate superior Officer, namely, the Inspector of Police and hence, it is the violation of the provision. Information over phone does not satisfy the statutory requirement.
7. The learned counsel for the appellants Mr.T.K.Sampath would strenuously contend that even though there was every possibility for the Sub-Inspector of Police who apprehended the accused in a place which is used by the public as evident from his deposition, he has not examined any independent witnesses to establish the genuineness of the arrest and recovery of the contraband. It is his evidence that he asked the passersby and the nearest shop owners to be the witnesses, but they did not come forward due to fear and hence, he nominated two head constables of his department to be the witnesses. If the investigating officer failed to take effective steps to procure independent witness for search of the accused and explanation for it was not believable, then search could be vitiated.
8. Time and again, the Apex Court and various High Courts have been holding the importance of securing independent witnesses during the search of the accused by the investigating officer to show the genuineness of the case and his failure in this regard would vitiate the search itself.
9. In support of his contention, the learned counsel for the appellants cited the following authorities on this point:-
(i)2008 Drugs Cases (Narcotics) 352, Noor Aga Vs. State of Punjab and another.
(ii)2002 2 Drugs Cases 26, Koluttumottil Razak Vs. State of Kerala.
(iii)2004 Drugs Cases (Narcotics) 104, State of Punjab Vs. Partap Singh.
(iv)2006(8) Supreme 902, Ritesh Chakarvarti Vs. State of Madhya Pradesh.
(v)2003(2) Law Weekly (Crl) 514, Madasamy V. State etc.
(vi) The judgment of this Court in Crl.A.No.1169 of 2004, dated 07.06.2010.
(vii)The order of this Court in Criminal revision case No.416 of 1990, dated 16.12.1994.
(viii)Copy of judgment passed in Crl.A.No.249 of 2009 dated 02.04.2008.
10. In view of the enunciation of law in the above said decisions on this position, it has to be held that failure to secure independent witnesses for search of the accused and adopting subsequent procedures would vitiate the investigation.
11. Even though P.W.1 has stated that all the three accused each carrying a carry bag, those carry hags have not been produced before the Court. This fact also taints the investigation.
12. Much was said about the delay occurred in sending the contraband to the analysis. The contraband was recovered from the accused on 24.10.2006 at about 11.00 a.m. and it is stated by P.W.1 that the properties, namely, contraband were despatched on the same day to the Judicial Magistrate Court No.1, Nagapttinam. P.W.5, Inspector of Police says that he gave requisition to the Court on 30.10.2006 to send the contraband for analysis to the Forensic Science Department. But the Court Head Clerk P.W.3 would state that on 21.11.2006 he received the contraband from the police station through P.W.2, Veerannan, the Head Constable and sent the same for analysis with covering letter, Ex.P.8 from the Court. In his cross-examination, he has reiterated that it is true to state that the contraband was received in the Court on 21.11.2006 and was sent on 22.11.2006. When the contraband was seized on 24.10.2006, it reached the Court only on 21.11.2006. Hence, the evidence of P.W.5 that he sent the contraband to the Court on 30.10.2006 is not believable. There is a delay between 25.10.2006 till 20.11.2006 in sending the contraband to the Court. During the interregnum period, where the property was kept and preserved is not spoken to by either P.W.1 or P.W.5.
13. In this regard, Standing Orders 1/88 under Customs Act 1962, Chapter XIII under the Searches, Seizure and Arrest, Sl.No.13 shows that samples must be despatched to the laboratory within 72 hours of seizure to avoid any legal objection.
14. The learned counsel for the appellants draws attention of this Court to a decision rendered by this Court in Crl.A.No.249 of 2007 dated 02.04.2008 in which T.Sudanthiram.J has referred to the delay from 26.06.2005 to 20.07.2005 and observed that as the delay in sending the property being not explained by the prosecution along with the fact that search and seizure being not established by any independent witness, under the circumstances of the case, lead to the irresistible conclusion that the contraband could not have been recovered in the time and manner alleged by the prosecution. In this case also, the concerned officials have not given any explanation for the delay occurred as above stated. The unexplained delay in this regard would lead to lay suspicion over the prosecution case.
13. Ex.P.4 is the arrest report prepared by P.W.1 in the place where the police apprehended and searched, in which it is stated that Crime No.47 of 2006 under Section 8(c) read with 21(c) of the NDPS Act,1985. But it is not in evidence of P.W.1 that he prepared arrest report in the place where the accused were secured and then proceeded to the police station. He says that he registered the case at 16.30 hours in Crime No.47 of 2006 under Section 8(C) read with 21(C) of NDPS Act. The above said circumstances show that the investigation precedes the registration of the case since the arrest report contains the crime no and provisions of law. The arrest of the accused is a stage in investigation which has to come after the registration of the case. This circumstance also constitutes a ground to suspect the genuineness of the prosecution case.
14. The learned counsel for the accused appellants also contend that the magazar Ex.P.3 does not contain the office seal which would raise a doubt that it would have been created afterwards. This Court sees the considerable force in his arguments.
15. P.W.5 says that after completion of the investigation, he laid charge sheet on 27.02.2007. But the analytical report is dated 20.06.2007. This report was obtained for the second time. First of all, Ex.P.9 report was received on 30.11.2006 which would state that the three copies contained Diacetyl morphine. The purity of the contraband, namely, the percentage of Diacetyl morphine was not ascertained during the first examination. When the contraband was sent for analysis for the second time, the report was prepared dated 20.06.2007 and the same should have been received by P.W.5 on a later date. The percentage is ascertained under the second report only. Even before the said report was received, the charge sheet was laid by P.W.5 under Section 21(C) of the Act with a definite premise that the accused were smuggling heroin of commercial quantity. The quantity of 250 gms of heroin is a commercial quantity and as per the conclusion by the trial Court 1 and 2 accused were possessing 540 gms each and the third accused 411 gms heroin exceeding the commercial quantity. Hence, even before ascertaining the percentage of heroin in the contraband, the charge sheet was laid under Section 21(c) of the Act which is patently irregular.
16. Much was said on behalf of the appellants as regards the analysis of the samples of the contraband for the second time. The learned counsel for the appellants raises a query that how the analyst got the property for the second analysis and who has given request to the Court to send the contraband for examination for the second time. Apparently, there is no record to show that necessary request was made by the investigating officer to the Court to send the remaining samples of contraband for the second analysis. Neither P.W.5 nor P.W.3, the Court Clerk has stated about the requisition letter to the Court. P.W.3 in the Chief examination has added that for the purpose of getting reward from the Government, the samples of contraband were sent for analysis for the second time to find out the percentage.
17. As adverted to supra, there is no request from the investigating agency nor had there been a covering letter from the Court requesting the analyst to analyse the sample for the second time. In this context, the investigating agency cannot rely upon the second report which shows the percentage of Diacetyl morphine in the contraband.
18. This Court has scrutinized the materials on record carefully and all other attendant circumstances as narrated supra and found that the prosecution has miserably failed to bring home the guilt of the appellants beyond a reasonable doubt. Very many doubts have surfaced in the prosecution case which would lead the Court to extend the benefit of doubt to the appellants. Therefore, the charges framed against the accused have no legs to stand which remain unestablished. Hence, the judgment of conviction and sentence passed by the trial Court have to be set aside and they are accordingly set aside. I answer the point as indicated above.
19. In fine, the appeal is allowed acquitting the appellants from all the charges framed against them. The disposal of the case properties shall be in accordance with the direction of the trial Court. The appellants are directed to be released forth with unless their presence are required in connection with any other case.
ssm To
(i) The Additional District and Sessions Judge, Special Court for E.C.Act Cases, Thanjavur.
(ii)The Inspector of Police, NIBCID, Nagtapattinam, Thanjavur District (Crime No.47 of 2006)
(iii)The Superintendent of Prison, Central Prison, Trichy.