Madras High Court
Mathi Alias Mathiyalagan vs State on 4 March, 2010
Author: T.Mathivanan
Bench: T.Mathivanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04/03/2010 CORAM THE HONOURABLE MR. JUSTICE T.MATHIVANAN Criminal Appeal (MD) No.53 of 2008 Mathi alias Mathiyalagan .. Appellant vs State, rep. by Inspector of Police, Ariyamangalam Police Station, Trichy District (Crime No.286/2003) .. Respondent Appeal against the judgment and conviction dated 27.11.2007, by the learned Additional District and Sessions Judge and Presiding Officer, Special Court for EC Act and NDPS Act Cases, Pudukkottai in C.C.No.336 of 2004. !For appellant ... M/s.S.Deenadhayalan. ^For respondent ... Mr.P.Rajendran Government Advocate (Crl.Side) :JUDGMENT
This memorandum of Criminal Appeal has been brought before this Court by the appellant who was the accused in C.C.No.336 of 2004, on the file of the learned Additional District and Sessions Judge (Special Court for EC Act and NDPS Act Cases), Pudukkottai, challenging the judgment and conviction dated 27.11.2007 and made in C.C.No.336 of 2004 convicting the appellant under Section 8(c) read with 20(b)(ii)(B) of NDPS Act sentencing to undergo 66 days Rigorous Imprisonment and imposing fine of Rs.3,000/-, in default, to undergo further two weeks Rigorous Imprisonment.
2. For easy reference the appellant herein may hereinafter be referred to as accused.
3. The facts and circumstances which giving rise to the memorandum of criminal appeal may be summarised as briefly as follows:-
2.1. That on 14.11.2003, when P.W.3 the Sub Inspector of Police attached to Ariamangalam Police Station was present in his office, had received a discreet information from his informer saying that the accused Mathi @ Mathiyalagan had been transporting kanja for the past several days near the hand-pump located on the northern bank of Uyyakondan canal. The informer had also informed that on 14.11.2003, at about 10.00 a.m, he would be coming along with kanja to the said place and if strict vigilance was kept, he would be caught hold. The statement of informer (Ex.P3) was recorded by P.W.3 and after getting permission from P.W.4, the Inspector of Police, attached to Ariamangalam Police Station, at about 10.30 a.m. P.W.3 along with Head Constable 1044 and Selection Grade Constable 1634 went to that place and kept vigilance. While so, a person was coming there. On identification by the informer, P.W.3 had caught hold of him and thereafter in the presence of P.W.1 Velayuthamkudi Village Administrative Officer and one Agastin, Village menial he had informed the accused about his right that he might be searched either in the presence of the Special Judge or Government Gazetted Officer. For that, the accused had replied that he might be searched in the presence of the witnesses. The search information was marked as Ex.P4. Thereafter, P.W.3 had searched the yellow cotton bag which was found in the possession of the accused. During the course of the search, kanja weighing about 1.100 grms. was found in his possession.
Then, he took two samples weighing about 50 grms each packed and SHO seal was affixed and at about 11.00 a.m. the contraband was seized in the presence of the witnesses and the remaining contraband was also sealed. At about 12.00 noon, the accused was arrested after issuing arrest memo under Ex.P5 and brought to the Police Station along with the contraband and thereafter, P.W.3 had registered a case in Crime No.286/2003 which was marked as Ex.P6, under Section 8(c) read with 20(b)(ii)(A) of NDPS Act. Then, the accused was produced before P.W.4 - the Inspector of Police along with the contraband and P.W.3 had also submitted a detailed report under Section 57 of the NDPS Act (Ex.P.7). Thereafter, the P.W.4 took up the investigation, went to the place of occurrence, examined the witnesses and recorded their statements. Then, he had given a requisition to the Special Judge, requesting to send the samples to the chemical examination. On 06.02.2004, he had received the analysis report and he had also examined the chemical examiner and the Head Clerk attached to the Special Court. He had also examined P.W.3 and after completion of his investigation, he had laid a final report against the accused.
2.2. After the copies of the final report were issued to the accused, the learned Special Judge, Pudukkottai had framed a charge under Section 8(c) read with 20(b)(ii)(B) of NDPS Act against the accused. When the charges were explained and questioned, the accused had pleaded innocent and claimed to be tried.
2.3. In order to establish the case, the prosecuting agency had totally examined four witnesses and during the course of their examination, Ex.P1 to Ex.P7 and MOs 1 to 3 were marked. On a careful appreciation of the testimonies of the witnesses as well as the documentary evidences, the learned Special Judge has proceeded to pronounce the judgment on 27.11.2007, finding the accused guilty under Section8(c) read with 20(b)(ii)(B) of NDPS Act convicting and sentencing him to undergo RI for 66 days and to pay a fine of Rs.3,000/-, in default, to undergo another 2 weeks of Rigorous Imprisonment. It was also ordered that the period of incarceration already undergone by the accused would be given set-off under Section 428 of IPC. Challenging the finding, conviction and sentence of the Trial Court, the present memorandum of criminal appeal has been filed before this Court by the accused.
3. The learned counsel appearing for the accused would submit that the judgment of the Trial Court is suffered from several infirmities and as such it has to be set aside. During the course of his argument, he has taken this Court through the testimonies of P.W.1 to P.W.4 and identified several contradictions and complications which arose during the investigation as well as during the examination of the witnesses. The learned counsel has made stress on the evidence of P.W.1 and submitted that P.W.1 during the course of his cross- examination has admitted that the crime number which is found on M.O.3 was written in the place of occurrence at the time of seizure. In this regard, he would submit that mere writing of crime number on the contraband itself would go to show that the contraband was not seized and packed at the place of occurrence and if it was done so, the crime number would not have been written on the material object M.O.3. He has also brought to the notice of this Court that as per the evidence given by P.W.3, after the seizure of contraband in the presence of P.W.1 and the Village menial, he went back to the Police Station and registered the First Information Report and then only he could have written the crime number on M.O.3. When such being the case, it is surprise to note as to how the crime number came to be in existence when the contraband was seized and packed. The existence of crime number on M.O.3 at the time of its seizure would go to establish that every thing was done only in the Police Station and not in the place of occurrence.
4. Insofar as this case is concerned, no independent witness was examined. Further, the presence of P.W.1 Village Administrative Officer along with his Village menial in the place of occurrence at the time of arrest and seizure of the contraband is suspected. In Ex.P6, it is stated that the time of receipt of the information by P.W.3 is 12.30 p.m. But P.W.3 would state in his evidence that on 14.11.2003 at about 10.30 a.m. when he was present in the Police Station he had received the discreet information from his informer and that at about 12.30 noon, he had produced the accused along with contraband before P.W.4.
5. While advancing his argument, the learned counsel has made stress on the evidence given by the P.W.3 and Ex.P2 Chemical analysis report. In his evidence P.W.3 would state that when the samples were prepared SHO seal was affixed even in the presence of the witnesses. But, whereas in Ex.P2 it does not have any reference to show that SHO seal was affixed in the samples which were received by the Forensic Sciences Laboratory. The evidence given by P.W.2 chemical examiner would substantiate this fact. Moreover, the constable who had taken the samples to the Forensic Science Laboratory had not been examined by the prosecuting agency for the reasons best known to them. In this regard, the learned counsel for the accused would submit that there is one day delay in reaching contraband to the Court which has not been satisfactorily explained by the prosecuting agency. In this regard, he has placed reliance upon the decision reported in 1993 SCC (Cri) 1082 (Valsala v. State of Kerala) wherein it is observed by the Apex Court that in absence of evidence to show that during the long period (of over three months in this case) between the seizure and production in Court, the seized article was in the custody of the Officer-in- Charge of Police Station and that the same was kept under seal. It is also observed that it was doubtful whether the very article that was seized was sent to Chemical Examiner.
6. On coming to the present case on hand, since there is a delay in reaching the contraband to the Court the non-examination of the Head Constable who took the contraband to the Court has created doubt in the case of the prosecution. As per the case of the prosecution, the contraband was seized on 14.11.2003, and it appears that it was reached the Court only on 17.11.2003. Though no specific question was put to the Investigating Officer with regard to the delay, it appears explicitly to the Court that it affects the very root of the case of the prosecution.
7. The learned counsel appearing for the accused in order to fortify his argument has also placed reliance upon a decision reported in 2001 Cri. L.J.4602 (Savitri @ Shoobha and others v. State of Chattisgarh). This Court has gone through the judgment delivered by the Trial Court Judge and in the opinion of this Court it appears that the Trial Judge has accepted the prosecution case in toto without applying his own mind into the contradictions and infirmities arising from the case of the prosecution. Having given careful consideration to the available material on record, this Court is of the considered view that the prosecuting agency has miserably failed to bring home the guilt of the accused and therefore, the accused shall necessarily have to be acquitted.
8. In the result, this Criminal Appeal is allowed. The judgment of the Trial Court is set aside and the accused is set at liberty. The fine amount paid by the accused shall be refunded to him. The bail bond, if any, executed by him and on behalf of the accused are cancelled.
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