Madras High Court
Ramesh vs State Rep By Its on 4 March, 2010
Author: S. Nagamuthu
Bench: S. Nagamuthu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:04.03.2010 CORAM THE HONOURABLE MR.JUSTICE S. NAGAMUTHU Crl.A.No. 457 of 2009 and M.P.2 of 2009 Ramesh .. . Appellant Vs. State rep by its Inspector of Police, NIB, CID, Salem ... Respondent PRAYER: Appeal filed under Section 374 (2) Cr.P.C against the judgment dated 27.06.2007 pronounced by the learned Special Judge (EC Act) Salem in C.C.No.185 of 2005. For Appellants : Mr.Sankara Subbu Mr.C.S.Dhanasekaran For Respondent : Mr. N.R.Ilango, Addl.Public Prosecutor O R D E R
Though the miscellaneous petition alone is listed for hearing, the learned counsel submitted that the appeal itself may be heard and disposed off. Accordingly, the appeal was heard and the same is disposed of.
2. The petitioner is the first accused in C.C.No.185 of 2005 on the file of the Special Court under the Essential commodities Act, Salem. There was yet another accused by name Chokkan @ Chokkanathan. The appellant stands convicted for offences under Sections 8( c ) read with 20(b)(ii)(c) and 25 of N.D.P.S Act and sentenced to undergo R.I for ten years and to pay a fine of Rs.1,00,000/- , in default to undergo further R.I for two years. The second accused Chokkan @ Chokkanathan has been acquitted. Challenging the said conviction and sentence, the appellant is before this Court with this appeal.
3. The case of the prosecution in brief is as follows:
i) P.W.1 was the Inspector of police, Prohibition Enforcement Wing, Dharmapuri during the year 2004. P.W.2 was the then Sub Inspector of Police of the said Wing. One M.Devendran (Head Constable No.1622), Police Constable Vivekanandan (P.C.No.1724) and another Constable Selvaraj (P.C.No.271) were also attached to the said Police Station. On 11.09.2004, at about 7.00 a.m. P.Ws 1 and 2 along with the above stated Police Constables were engaged in vehicle check up on Dharmapuri to Salem road at Elagiri road junction. At that time, a jeep bearing registration No.TN 20 D 919 was found proceeding towards Salem from Dharmapuri i.e. from North towards South. The registration number of the vehicle was not displayed on the front side of the jeep. P.W.1, with the help of others, intercepted the vehicle and as soon as the vehicle came to a halt, he caught hold the driver of the vehicle. Another person, who was also in the jeep fled away from the scene. From the information furnished by the driver of the vehicle, P.W.1 came to know that his name is Ramesh S/O.Ramiah (appellant). The appellant told him that the person who escaped from the scene was one Chokkan @ Chokkanathan (A2) P.W.1 was given to understand that Ganja was being stealthily transported in the jeep. Therefore, P.W.1 decided to make a search. Before doing the search, P.W.1 informed the appellant that he had the right to have search conducted in the presence of either a Gazetted Officer or a Judicial magistrate. Such information given in writing by P.W.1 is Ex.P.1. The appellant acknowledged the same. Thereafter, the appellant informed P.W.1 that it was not necessary for search in the presence of a Gazetted Officer or a Judicial Magistrate and instead, P.W.1 himself can do the same. Thereafter, P.W.1 along with others searched the jeep. He found 13 gunny bags in the jeep. He unloaded the same from the jeep. On opening the gunny bags, he found that all the bags contained Ganja mixed with seeds. From out of the smell, he could perceive that it was Ganja. with the help of a scale, when he weighed the bags, he found the same weighing 85Kgs, 85 Kgs, 60 Kgs, 10 Kgs, 30 Kgs, 25 Kgs, 17 Kgs, 22Kgs, 22kgs, 22 Kgs, 22 Kgs, 22 Kgs and 20Kgs respectively and the total weight was 442 kilograms. He drew two representative samples from each gunny bag. Likewise, he took 26 pockets of samples. P.W.1 tied the pockets with twine thread and stitched the Ganja bags. Then he affixed seals on the sample pockets and gunny bags. He obtained the signature of the appellant and the witnesses on slips and pasted the same on the sample pockets. He seized the Ganja bags and the jeep with a spare tyre under a mahazar-Ex.P.2. M.Os. 1 to 13 are the Ganja bags seized from the possession of the appellant. M.Os.14 to 39 are the sample pockets, of which, M.Os.27 to 39 are the sample pockets returned by the Forensic lab after examination. M.O.40 is the jeep. M.O.49 is the tyre. Then he recorded the statement of the accused. The accused was arrested and arrest memo was served on him under Ex.P.4. Then he took the accused and seized the articles to Prohibition Enforcement Wing, Police Station. P.W.2 and other constables also accompanied him. Then he registered a case at 10.00a.m. in Crime No.2284 of 2002 under Sections 8(c) read with 20(b)(ii)(c) and Section2 5 of N.D.P.S. Act. he forwarded the First Information Report to the Court through a constable. It was received by the learned Magistrate at 10.30 a.m on 11.09.2002. Then he forwarded a report as required under Section 57 of the N.D.P.S Act. to the Deputy Superintendent of Police Dharmapuri under Ex.P.6. The arrest of the petitioner was intimated to his father by means of a telegram under Ex.P.7.
ii) P.W.6, was then the then Inspector of Police, Norcotic Wing at Salem. He took up the investigation of the case on 20.12.2004. He examined the person in whose name the registration Certificate of the Jeep then stood and recorded his statement. He examined P.Ws.1 and 2 and few more witnesses and recorded their statements. A request was made by the Police to the trial Court to forward M.os. 27 to 39 for chemical examinations. P.W.5, chemical examiner verified the same and found that seals were intact. Then he examined the same and found that the contents of the pockets were Ganja. Ex.P.14 is the report of the Chemical examiner. P.W.6, after getting the analysis report and after perusing the record filed a final report against both the accused for offences under Sections 8(c) read with 20(b)(ii)(c) of N.D.P.S Act.
4. On considering the above materials, the trial Court framed charges against the accused under Sections 8(c) read with 20(b)(ii)(c) of N.D.P.S Act. When questioned, the appellant denied the charges. Therefore, he was put on trial.
5. During trial of the case, on the side of the prosecution as many as six witnesses were examined as P.Ws 1 to 6 and 14 documents were exhibited as Ex.P.1 to P.14. When the appellant was questioned under 313 Cr.P.C., he denied the incriminating materials and claimed them to be false. The second accused examined D.W.1 , in order to prove alibi. The appellant examined D.W.2, to speak about the fact that the appellant had gone out from his workshop on 10.09.2004 itself for the purpose of repairing a jeep. Later on, according to D.W.2, he came to know from the sister of the accused that he was involved in a Ganja case. Two documents relating to the ownership of the jeep were marked as EXs.D1 and D.2. on the side of the accused.
6. Having considered all the above materials, the trial Court acquitted the second accused but convicted the appellant and imposed appropriate punishment. It is against the same, this appeal has been preferred.
7. P.W.2 has also spoken to about the entire facts relating to the interception of the vehicle, arrest of the appellant, seizure of the contraband etc. His evidence fully supports the evidence of P.W.1. P.W.3, who is the Regional Transport Officer, has spoken to about the ownership of the jeep. According to him, the jeep stood in the name of one R.Gunaseelan. P.W.4 was examined to speak about the fact that the said jeep was purchased by the second accused, but R.C. was not changed in his name. But, P.W.4 has turned hostile and did not support the case of the prosecution.P.W.5 is the analyst who has spoken to about his report. P.W.6 is the Investigating Officer who has spoken to about the investigation done by him and the charge sheet laid.
8. The learned counsel for the appellant would assail the conviction and sentence on the following grounds.
i. The evidence of P.Ws 1 and 2 who are the police Officials cannot be either undoubted or acted upon for want of corroboration from independent witnesses.
ii. The mandatory provision contained in Section 50 of the N.D.P.S Act has not been followed, which vitiates the entire conviction. Further Section 42 of the Act has not been followed;
iii. The report under Section 57 of the Act (Ex.P.6) was sent with enormous delay, which creates doubt in the case of the prosecution;
iv. The contraband allegedly possessed by the accused was also sent belatedly to the Court, for which there is no explanation, which also creates doubt in the case of the prosecution;
v. The First Information Report cannot be believed as there are materials to establish that it is a concocted document;
vi. Section 52 of the Act has not been followed by P.W.1 which creates doubt in the case of the prosecution;
vii. P.W.1 had no power to investigate the crime since he was then working only in Prohibition Enforcement Wing of the police Station, which is ear marked for investigating exclusively, the cases under the Tamil Nadu Prohibition Act.
viii. Assuming that the contraband was seized from the jeep, the accused cannot be stated to have conscious possession of the contraband; as there are indications that the contraband could have been kept in the jeep by A.2 or by somebody without the knowledge of the appellant.
ix. Purity test to know the exact weight of Ganja has not been done and therefore, it cannot be stated that Ganja allegedly seized from the appellant is commercial quantity. At the most, it can be construed to be between small quantity and commercial quantity and therefore, the punishment imposed is not correct.
9. In order to substantiate the above contentions, the learned counsel has taken me through the evidence both oral and documentary, and has also cited various judgments of the Hon'ble Supreme Court as well as this Court about which, I will make reference at the appropriate places of this judgment.
10. Per contra, the learned Additional Public prosecutor would make the following submissions:
i. Though the occurrence was in a public place, there is no evidence that there were General Public available and so, non examination of independent witnesses has not in any manner created dent in the case of the prosecution;
ii. Simply because P.Ws 1 and 2 are police officials, their evidences cannot be straightaway rejected and their evidences require full acceptance since no material has been elicited during cross examination to discredit their evidence;
iii. The mandatory provision contained in Section 50 of the N.D.P.S Act is not at all applicable in respect of the search made in the vehicle as the said provision is applicable only to personal search;
iv. There is no delay in forwarding the report under Section 57 of the Act and the delay pointed out by the learned counsel for the appellant is immaterial and the same would not in any manner affect the case of the prosecution;
v. Section 52 is not applicable to the facts of this case;
vi. Similarly, there is no delay in forwarding the contraband to the Court and the delay pointed out by the learned counsel for the appellant, does not in any manner create doubt in the case of the prosecution;
vii. P.W.1, being a police officer is fully empowered to investigate the case and it is immaterial as to whether he is attached to Prohibition Enforcement Wing or some other Wing of Police Department;
viii. Section 42 of the Act is not at all applicable to the facts of the present case because the requirements of Section 42 are expected to be complied with only in the case where the police officer acts either on his personal knowledge or on any information that such an offence is being committed;
ix. First Information Report has been entered in the book specified by the government and therefore, it cannot be stated to be a concocted document;
x. Going by the huge quantity of the contraband kept in the jeep and also the fact that the petitioner was the driver of the jeep, it cannot be stated at any stretch of imagination that he did not have knowledge and therefore, the contention that the possession was not conscious possession is only fallacious;
xi. Purity test in respect of Ganja is not at all required as held by the Hon'ble Supreme Court in 2009 (2) SCC 26. Therefore, the quantity of contraband seized from the appellant is a commercial quantity and thus the lower Court is right in appropriately punishing the accused.
11. I have considered the rival submissions. Before going to analyse the facts involved in this case, it would be worthwhile to refer to the judgment of the Honble Supreme Court in Raju Premji VS Customs NER Shillong Unit reported in 2009 (3) Crimes 109 (SC) on which much reliance has been placed by the learned counsel for the appellant. In paragraph 7 of the said judgment, the Honble Supreme Court has recorded a word of caution as follows:
The Act provides for stringent punishment. Where a statue provides for stringent penal provisions including the matter relating to grant of a bail, the conditions precedent therefor must be scrupulously complied with The above observation came to be made by the Honble Supreme Court while dealing with a criminal appeal relating to the N.D.P.S Act. Keeping the above caution in mind, let me analyse the facts.
12. P.Ws.1 to 3 claim to be the eye witnesses. According to them, while they were engaged in vehicle check up, a jeep driven by the appellant was intercepted and the same was found carrying Ganja. The foremost contention of the learned counsel for the appellant is that the evidence of P.Ws 1 to 3 cannot be made the foundation for conviction as they happened to be police officials who are interested in the prosecution case, more so, because there has been no independent witnesses examined. In this regard, I have to state that it is not the rule of evidence that the evidence of police officials are to be always doubted and invariably rejected. It all depends on the facts and circumstances of each case. If the Court finds that the evidences of the police officials inspire the confidence of the Court, absolutely there is no legal bar to act upon such testimonies of police officials even in the absence of any other independent witness to corroborate. In the case on hand, I have carefully gone through the entire evidence of P.Ws 1 to 3 where nothing has been elicited during cross examination to discredit the evidences of any of these witnesses. Though they were subjected to a lengthy and incisive cross examination by the defence counsel, they have withstood the same. As I have already stated nothing has been brought on record which would create any doubt in the version of their evidences. In this context, I have to refer to the judgment of the Honble Supreme Court in Pradeep Narayan Madgaonkar and others VS State of Maharashtra reported in 1995 Supreme Court Cases (Cri) 708 wherein the Honble Supreme Court has made the following observation in respect of the evidence of police officials:
"Indeed, the evidence of the officials (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are, either interested in the investigating or the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation, requires greater care to appreciate their testimony."
13. Of course, it is true that no independent witness has been examined to corroborate the evidences of P.Ws 1 to 3. The learned counsel for the petitioner would submit that since the occurrence was in a public place, independent witness would have been certainly available and therefore, failure to examine any one of the independent witnesses is fatal to the case of the prosecution. In this regard, I have to state that it is not in evidence that though the jeep was intercepted at a public place, any independent witness was available anywhere near the place of occurrence at the crucial time. Simply because the vehicle was intercepted at a public place, it cannot be automatically presumed that there would have been independent witnesses. A perusal of Exs.P.9 and P.10 ( Observation mahazar and sketch) would go to show that there were no habitations anywhere near the place of occurrence. There were only a Flour and Oil Mill and a school situated somewhere near the place of occurrence. These two documents were prepared by P.W.1 and proved through him. There was no cross examination in respect of these two documents disputing the correctness of the observations in the documents. However, it is in evidence of P.W.1 during cross examination as though he called independent witnesses but they declined. Of course, P.W.1 has not so recorded in the case diary about the same. It is, to some extent, a flaw. But it cannot be forgotten that none can be compelled to be a witness. In such circumstances, when there was no independent witness either available or coming forward, non examination of such independent witnesses is quite natural and therefore, it cannot be a ground to doubt the evidence of P.Ws 1 to 3.
14. The learned counsel would nextly submit that as provided under Section 100(4) Cr.P.C P.W.1 ought to have taken to the place of occurrence two independent witnesses and the failure to follow the said provision is again fatal to the case of the prosecution. The learned Additional Public Prosecutor would however submit that Section 100 (4) of the Code is not at all applicable to the facts of the present case as the said provision would come into operation only in a case where the police officer receives either reliable information or has got reason to believe that an offence is committed. It is in those circumstances only, before proceeding to the place of occurrence, he is required to take two independent witnesses, he added.
15. The learned counsel for the appellant would however submit that in view of Section 51 of the Act, which declares that the provisions of the Code of Criminal Procedure 1983 shall apply to all searches and seizures made under N.D.P.S Act, the police officer ought to have followed Section 100(4) Cr.P.C. In this regard, I may refer to Section 49 of the N.D.P.S Act which empowers a police officer to stop the vehicle and to search the same. Section 49 reads as follows:
"Power to stop and search conveyance: Any officer authorized under Section 42, may, if he has reason to suspect that any animal; or conveyance is, or is about to be, used for the transport of any narcotic drug or psychotropic substance, (or controlled substance), in respect of which he suspects that any provision of this Act has been , or is being, or is about to be, contravened at any time, stop such animal or conveyance, or, in the case of an aircraft, compel it to land and :
a) rummage and search the conveyance or part thereof;
b) examine and search any goods on the animal or in the conveyance;
c) if it becomes necessary to stop the animal or the conveyance, he may use all lawful means for stopping it, and where such means fail, the animal or the conveyance may be fired upon."
16. A close scrutiny of Section 49 of the N.D.P.S Act would show that the said provision alone is applicable to the facts of the present case and not Section 100(4) Cr.P.C. As rightly pointed out by the learned Additional Public Prosecutor, Section 100 (4) Cr.P.C. relates only to search in closed places. Therefore, the contention of the learned counsel for the appellant that the police officer ought to have followed Section 100(4) Cr.P.C is rejected. As provided under Section 49 of the Act, P.W.1 is empowered to stop the vehicle and to search and so the search and seizure conducted by him cannot be stated to be illegal or irregular.
17. Nextly, the learned counsel for the appellant would contend that Section 50 of the N.D.P.S Act has not been followed and on this ground itself, the appellant is entitled for acquittal. There can be no doubt that Section 50 of the Act is mandatory and failure to follow the same itself is a ground for acquittal. But the learned Additional Public Prosecutor would submit that Section 50 of the Act is applicable only in respect of searches of persons and the same is not applicable to search of the vehicles. This legal position does not require a great deal of discussion as the law has been well settled by the Honble Supreme Court. In this regard, a reference may be made usefully to the following judgments of the Honble Supreme Court.
(i) State of Punjab VS Balbir Singh and others reported in (2004) 8 Supreme Court Cases 702:
"Sections 42 and 43, therefore, contemplate two different situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 of the NDPS Act for searching the vehicle between sunset and sunrise.
We, therefore, hold that in the facts of this case Section 50 of the NDPS Act was not applicable since the contraband was recovered on search of a vehicle and there was no personal search involved. The requirement of the proviso to Section 42 was also not required to be complied with since the recovery was made at a public place and was, therefore, governed by Section 43 of the Act which did not lay down any such requirement. Additionally, since the Superintendent of police was a member of the search party and was exercising his authority under Section 41 of the NDPS Act, the proviso to Section 42 was not attracted."
(ii) State of Haryana VS Jarnail Singh and others reported in (2004) 5 Supreme Court Cases 188:
"The same view has been reiterated in several decisions of this Court including Kalema Tumba V.State of maharashtra, Gurbax Singh V.State of Haryana, Madan Lal V. State of H.P., Birakishore Kar V.State of Orissa and Saikou Jabbi V.State of Maharashtra. The language of Section 50 is clear and unambiguous and the law so well settled that it is not possible to take a different view. We must, therefore, hold that Section 50 of the NDPS Act did not apply to the facts of this case, where on search of a tanker, a vehicle, poppy husk was recovered. This not being a case of personal search, Section 50 was not applicable. Moreover, there was no prior information regarding the contraband being carried in a vehicle, and the recovery was the result of checking of the vehicle in the normal course."
18. The learned counsel would submit that it is not the case of the investigating officer that Section 50 of the Act is not applicable and that is the reason why he has recorded that he complied with Section 50 of the Act. In this regard, I have to say that the officer would have been under the mistaken impression that even for searching the vehicle Section 50 of the Act has to be followed. The learned counsel would submit that though P.W.1 has stated that he informed the accused that he can exercise the option of having the search conducted either in the presence of a Gazetted Officer or a Magistrate, there is nothing to indicate in his evidence that he apprised the accused of the right to exercise the said option so as to have search conducted in the presence of a Gazetted officer or a Magistrate. This contention is only to be negatived, for the simple reason, as I have already stated, that Section 50 is not applicable in respect of search made in the vehicle. In this regard we may refer to the law laid down by the Hon'ble Supreme Court in State of Punjab VS Baldev Singh reported in 1999 Supreme Court Cases (Cri) 1080, wherein in para 12, the Supreme Court has held as follows:
"On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted."
Though the leaned counsel has relied on a number of judgments to appraise this Court of the legal position that Section 50 of N.D.P.S Act is mandatory, I do not want to refer to those judgments because it would only add to the length of this judgment. More so, because there can be no controversy regarding the said legal position that failure to follow Section 50 of the Act is itself a ground for acquittal. To repeat, Section 50 of the Act is not applicable to the search made in the vehicle and so, it need not be gone into in this case as to whether Section 50 of the Act has been duly complied with as stated by P.W.1.
19. The learned counsel would further contend that though Section 52 of the Act is not a mandatory provision, still the same should have been scrupulously followed and if the same has not been done, it creates dent in the case of the prosecution. He would submit that as soon as arrest was made, and contrabands were seized, P,.W.1 ought to have taken the accused and the contraband to the nearest police station as required under Section 52 of the Act. This argument does not have any merit. In my considered opinion, the necessity to take the arrestee and the contraband to the nearest police station will arise only in the case where the officer who arrested the accused himself is not a police officer.
20. In the case on hand, P.W.1 himself is a police officer and he was also a station house officer of the Prohibition Enforcement Wing Police Station which has been duly notified as Police Station under Section 2(s) of Cr.P.C. Therefore, there was no necessity for P.W.1 to take the arrestee as well as the contraband to the nearest police station.
21. The learned counsel would submit that there is enormous delay in forwarding the First Information Report to the Court and the same has not been explained away. This, according to the learned counsel, creates doubt in the veracity of the evidence of P.W.1 insofar as it relates to the alleged arrest and seizure. A perusal of the records would go to show that the F.I.R has been received by the Magistrate at 10.30.a.m.on the same day. The above time cannot be construed to be a delay at any stretch of imagination.
22. The learned counsel would stoutly contend that Section 57 of the Act has also not been followed. In this regard, it is to be stated that Section 57 is not mandatory and it is only directory. Nevertheless, it is a provision to be followed by the police officer. But mere failure to follow the said provision itself is not a ground for acquittal. Anyhow, as contended by the learned counsel for the petitioner, if there is total failure to follow Section 57 of the Act, certainly it would be a favourable point in support of the defence. Applying the above legal position to the facts of the present case, it has to be analysed whether there is any violation on the part of P.W.1 to follow such provision. According to P.W.1, Ex.P.6 was prepared on the spot as soon as arrest of the accused and seizure of the contraband and the same was forwarded immediately to the higher officer, viz. D.S.P. of Prohibition Enforcement Wing. The learned counsel would submit that Ex.P.6 was not prepared at the time as it is spoken to by P.W.1 and the same is only a concocted document subsequently. The D.S.P has not been examined to speak about the receipt of Ex.P.6. Further there is no endorsement by D.S.P to mark the receipt of the same by him. This, of course creates doubt regarding the genuineness of Ex.P.6. But, only for this flaw, I am of the view, the entire case of the prosecution cannot be thrown out.
23. The learned counsel would contend that the contraband was not forwarded to the Court immediately. According to him because of this delay, a reasonable doubt should surface and on such doubt the accused should be acquitted. Of course, it is settled law that in any case, if contraband or any other property is seized, it is absolutely necessary for the officer concerned to forward the said materials to the Court without any delay. The said legal position should be very strictly followed, in a case of this nature where punishment is very stringent. But in the case on hand, in my considered opinion, there is no enormous delay in forwarding the material objects to the Court. The delay is very normal and it does not require any explanation. Apart from that there is no denial of the fact that they were forwarded to the Court. According to the Court, they were received by the Court with the seals and slips intact, which would go to establish that there was no tampering of material objects. Therefore, in this view of the mater, I hold that absolutely there is no delay in forwarding the material objects to the Court so as to raise any doubt in the case of the prosecution.
24. The next argument of the learned counsel for the appellant is with regard to the power of P.W.1 to investigate the case. The learned counsel would submit that P.W.1 was attached to Prohibition Enforcement Wing which is a separate wing constituted only to investigate the offences under Tamil Nadu Prohibition Act and therefore, P.W.1 did not have the power to stop the vehicle and search the vehicle and to further investigate the case. In my considered opinion, this argument is only fallacious. As I have already referred to, under Section 49 of the Act, any police officer above the rank of a Constable has got power to stop the vehicle, to search the same and to seize the contraband. There can be no controversy that P.W.1 is a police officer though he was attached to Prohibition Enforcement Wing. Simply because P.W.1 was a station house officer of Prohibition Enforcement Wing, it does not mean that he ceases to be a police officer. The said Police Station has been declared as a Police Station under Section 2(s) of Cr.P.C. and therefore, any officer attached to the said police station may investigate any offence. If the argument of the learned counsel is to be accepted, then in a given case, where a murder is committed in his presence, can it be said that an Inspector of Police attached to the Prohibition Enforcement Wing has to simply keep quiet without arresting the accused. Thus, I find neither logic nor correct legal proposition in this contention. So, I hold that P.W.1 is fully empowered not only to stop the vehicle, to search the vehicle, to arrest the accused, and to seize the contraband but also to proceed with further investigation. Above all, the further investigation was done only by P.W.6 about whose competency and power, no challenge could be made by the learned counsel for the appellant.
25. Nextly, the learned counsel would submit that even assuming that the contraband was found in the jeep, it cannot be automatically presumed that the petitioner possessed the said contraband; for it requires consciousness that the contraband was kept in the vehicle. In order to appreciate this contention, it is worthwhile to refer to the judgment of the Hon'ble Supreme Court in Megh Singh VS State of Punjab reported in (2003) 8 Supreme Court Cases 666, wherein in paragraphs 13 and 14, it has been held as follows:
" 13. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. This position was highlighted in Madan Lal VS State of H.P.
14. In the factual scenario of the presence case not only possession but conscious possession has been established. It has not been shown by the accused-appellant that the possession was not conscious in the logical background of Sections 35 and 54 of the Act."
26. 'Possession' in terms of the Act, must be 'conscious possession' and regarding the said legal position, there can be no doubt at all. Conscious possession presupposes "knowledge". What the learned counsel would try to say is that the appellant is stated to be only the driver of the vehicle and there was yet another person in the vehicle who had fled away from the scene of occurrence and therefore, it can also be presumed that the contrabands would have been kept in the vehicle by the said accused without the knowledge of the appellant. This assumption will only be far fetched. It is not as though what was found in the jeep was a very small quantity, which can be concealed in the vehicle by somebody without the knowledge of the driver. It is the case of the prosecution that there were 13 bags containing Ganja which were kept behind the driver's seat in the jeep. It cannot be said that such a huge quantity could have been kept in the vehicle by other accused without the knowledge of the appellant. This would go to show that certainly, this appellant had knowledge and so, his possession was nothing short of 'conscious possession'. It is not at all the case of the accused/appellant that he drove the vehicle without knowing that the contents of gunny bags were atleast Ganja. If it is the positive case of the accused that the second accused or somebody else loaded these gunny bags into the vehicle mis-representing to him that they contained some other substance and if it is the further case of the appellant that he also believed the same to be true, then it may require a great deal of analysis as to whether the possession of the accused in such a situation would amount to 'conscious possession'. Here, in the instant case, the accused has not made any such plea and instead, his defence is a total denial. As held by the Hon'ble Supreme Court, the accused has failed to show that his possession was not 'conscious possession' in the logical background of Sections 35 and 54 of the Act. Therefore, I have got every reason to hold that the possession of these contraband in the jeep was a 'conscious possession ' on the part of the appellant.
27. The next contention is that the contraband could have been kept in the jeep by A.2 and therefore, the appellant cannot be held to have possession of the entire quantity. This argument does not persuade me. It need not necessarily be exclusive possession by accused and even if it is a joined possession of more than one accused, every such accused shall be deemed to have possession of the entire quantity for the purpose of the penal provisions of the Act.
28. The learned counsel would then contend that the First Information Report in this case does not satisfy the requirements of Section 154 of Cr.P.C. inasmuch as it is not in the format which is usually used in Police Stations in the State of Tamil Nadu. To substantiate this contention, the learned counsel would rely on certain answers elicited from P.W.1 where he has stated that a different format of F.I.R book is normally used in the State. Per contra, the learned Additional Public Prosecutor would submit that the First Information Report in this case is in the proper format as prescribed by the Government of Tamil Nadu. I have perused the original first information report. Admittedly, it is in a printed format. Though it is not like that of the format of other first information reports which is normally used in the State of Tamil nadu, this is also a book prescribed by the Government of Tamil Nadu under Section 154 Cr.P.C. Therefore, the first information has been entered only in the book specified by the State of Tamil nadu. There is no illegality in the same. I may also say that in the given case, even if the information has not been entered in the prescribed book, that cannot be a ground to doubt the entire case of the prosecution.
29. Then the learned counsel would rely on the evidence of D.W. 2 to say that the accused would not have been arrested at the place, the time and in the manner alleged by the prosecution. He would submit that the accused is a mechanic. According to the evidence of D.W.2, 2 = years before the date of examination before the lower Court on 10.05.2007, when the accused was in the workshop, an individual came and wanted him to come near the Collector's office to repair a jeep parked there. Accordingly, the accused went to repair the vehicle . Thereafter, the accused did not return. Subsequently, after 3 days, he was informed by the sister of the accused that he had been involved in a Ganja case. In my considered opinion, no weightage could be given to this evidence for the reason that there is no reference about the date and time on which the accused was taken to the Collector's Office. Assuming that what was deposed by D.W.2 is true, even then that will not come to the help of the accused to probabalise his defence that he was not arrested on 11.09.2004 while he found driving the jeep.
30. A perusal of the statement made by the accused under Section 313 Cr.P.C would go to show that according to him, on 10.09.2004, a person by name, Mani took him from the motor workshop to a place near the Collector's office for repairing a jeep. When he was so doing repairs, the police took him into custody and booked him in this case by using the contraband. By examining D.W.2, the accused is not successful in proving the said defence of the accused. Had it been true that he was kept in illegal custody from 10.09.2009, by all probability, he would have told this fact to the Judge at the earliest opportunity when he was produced for remand. This would only go to show that the defence of the appellant is only an afterthought and that D.W.2 cannot be believed. Further, it is not explained by him as to what happened to Mani at the crucial time. It is also not explained as to why Mani was not examined by him to probabilise his defence.
31. The next contention of the learned counsel for the appellant is that under Ex.P.8 (form 95) the contrabands were handed over to the Court only on 13.09.2004. According to him, it is not in evidence as to where and in whose custody, the contrabands were kept safely in the meanwhile. In order to appreciate this argument, I have perused the records, which would reveal that the contrabands along with Form 95 were handed over to the Court on 11.09.2004 itself. But the learned Magistrate has returned the same to the police officer for safe custody as it happened to be Saturday holiday. According to the evidence of P.W.1, thereafter he kept the contrabands in his safe custody as directed by the Court and thereafter, he handed over the same to the Magistrate on 13.09.2004.i.e. On the next immediate working day . Thus, there is clear evidence that it was only in the safe custody of P.W.1. At this juncture, it cannot be lost sight of the fact that the seals and slips were intact when the contrabands were again produced before the Court on 15.09.2004. Therefore, it cannot be said that in the intervening period, the contents of the contrabands when they were in the custody of inspector of Police, were tampered with.
32. The learned counsel would lastly submit that assuming that the contraband was found in possession of the appellant, since the said contraband contained seeds and leaves also, the entire quantity can be construed as Ganja as per the definition of the term 'Ganja' in the Act. To substantiate this , the learned counsel would take me though the definition of Ganja as found in Section 2(b) of the Act which reads as follows:
"ganja, that is, the flowering of fruiting tops of the cannabis plant (Excluding the seeds and leaves when not accompanied by the tops) by whatever, name they may be known or designated )"
33. The learned counsel would attempt to interpret the said provision to say that Ganja means flowering of fruiting tops excluding seeds and leaves. He would take me though the analysis report Ex.P.14, wherein it is stated that the contents of the samples contain small leaves, seeds and crushed leaves also. From this, the learned counsel would submit that there was no purity test conducted to know the weight of the Ganja by excluding the leaves. The learned counsel would rely on two judgments in support of this contention. The first one is the judgment of the Hon'ble Supreme Court in 2008 Cri.L.J.1131 (Raju Mohanrao Rathod Vs State of Maharashtra) and the second one is the judgment of a learned single Judge of this court in K.V.Ramasamy Vs The Superintendent of Police, preventive Unit, Salem reported in 2010(1) T.N.L.R 51(Madras).
34. I have carefully gone through the above judgments. In my considered opinion, the above judgments do not come to the help of the accused in any manner . The definition of the term "Ganja" would go to show that seeds and leaves are to be excluded only when they are not accompanied by flowering tops or fruiting tops. If they are accompanied by flowering tops or fruiting tops, they cannot be excluded from the definition of 'Ganja". This was the view taken by the Hon'ble Supreme Court in Raju Mohanrao Rathod's Case wherein in paragraph 12 the Supreme Court has held as follows:
" 12. A bare reading of the above definition would make it manifest that the seeds and the leaves are excluded from the operation of the definition of word "ganja" only when the same are not accompanied by the flowering tops or the fruiting tops. The report of the C.A reveals that greenish leaves, seeds and stalks were noticed at the time of analysis. Thus, when the leaves and seeds were accompanied by the fruiting tops, then it will have to be said that the seized stock was of ganja".
35. In an identical situation, while considering the above definition of the term 'ganja' in the light of the judgment of the Honble Supreme Court, a learned judge of this Court (Hon'ble Justice T.Sudanthiram) in K.V.Ramasamy's case has analysed the definition in detail and has correctly understood the judgment of the Hon'ble Supreme Court and has held ultimately as under:
" The first thing to be noted is that as per the report, apart from flowering top, seeds, leaves, stem was found in the samples. The definition of ganja excludes the seeds and leaves when not accompanied by the tops. Therefore, when the ganja is seized, with the flowering or fruiting tops, seeds and leaves, totally it has to be taken as ganja. If the seeds and leaves are separate, not accompanied with the flowering or fruiting tops, they could not be terms as ganja. This makes it clear that mainly the flowering or fruiting tops of the cannabis plant is a ganja. As far as the stem is concerned, it is doubtful whether it could be regarded as ganja. Normally, the plant includes stem and therefore, the cannabis plant must be with stem and also with other parts such as flowering or fruiting tops, seeds and leaves. Therefore, when a cannabis plant is seized, if it contains flowering or fruiting tops,seeds and leaves being accompanied, it is not necessary to mention separately, it contains stem also. As mentioned above stem also is part of the plant. At the same time, like seeds and leaves, stem is not accompanying the flowering top and broken stem is available, it could not be terms as ganja. The stem may be long or short, normally it is long thin part of the plant."
However, the learned Judge in paragraph 20 of the said judgment has held as follows:
" This Court is to conclude that thought he prosecution has established that contraband was 'Ganja', failed to establish that the total weight of the ganja seized was above 20 kgms."
36. Placing reliance on this, the learned counsel would argue that the learned judge has held that ganja shall not include seeds and leaves. But the learned Judge has not taken such a view. He has only said that stem of the Ganja plant should be excluded as they cannot be accompanied by flowering tops and fruiting tops. . To repeat, I have to state that the learned Judge has held that having regard to the fact that the weight of the ganja including stems together with two gunny bags was only 21 kgms and since it was marginally above 20 kgms, it cannot be safely concluded that the total ganja seized excluding the weight of gunny bags and stems was above 20 kgms. In the case on hand, the ganja seized is not marginally above the prescribed quantity.
37. Applying the said principles to the facts of the present case, if we look into Ex.P.14, it is crystal clear that seeds and leaves were found along with the flowering tops and fruiting tops. So, the conclusion of the expert that the entire sample is 'ganja' needs to be accepted. Therefore, the question of conducting purity test to exclude leaves and seeds does not arise in the case on hand at all. In view of all the above, at any rate, it cannot be held that the quantity seized from the possession of the accused is not a commercial quantity. Therefore, the accused is liable for conviction under Section 8(c) and 20(b)(ii)(c) of the N.D.P.S Act as held by the trial Court.
38. Coming to the question of sentence, the trial court has imposed minimum sentence as provided under section 20(b)(ii)(c) of the Act and therefore, it does not require any interference at the hands of this Court.
39. In the result, the appeal fails and the same is accordingly, dismissed. The judgement of conviction and sentence dated 27.06.2007 recorded by the learned Special Judge [Essential Commodities Act], Salem in C.C.No.185 of 2005 is confirmed. Consequently, connected MP is closed.
Index : yes/no Internet: yes/no 04.03.2010 pal To 1. The Special Judge, Court under EC Act, Salem. 2. The Public Prosecutor, High Court, Madras. ..o.. S.NAGAMUTHU,J. Pal Pre-delivery Judgment in Crl.A.No.457 of 2009 Dt. 04 .03.2010