Madras High Court
Katturaja vs The Inspector Of Police on 25 February, 2015
Author: M.Sathyanarayanan
Bench: M.Sathyanarayanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 25.02.2015 CORAM THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN Criminal Appeal(MD)No.186 of 2008 Katturaja ... Appellant/Accused Vs. The Inspector of Police, N.I.B. C.I.D. Police, Thoothukudi, Cr.No.56/04. ... Respondent/Complainant Appeal filed under Section 374 of the Criminal Procedure Code, to set aside the conviction and sentence imposed in C.C.No.577/2014 dated 04.10.2007 by the Hon'ble Special District & Sessions Court for EC & NDPS Cases, Madurai. For Appellant : Mr.G.Bhagavath Singh For Respondent : Mrs.S.Prabha, Government Advocate (Crl.Side) :JUDGMENT
The accused in C.C.No.577/2014 on the file of the Special District & Sessions Court for EC & NDPS Cases, Madurai, is the appellant and vide impugned judgment dated 04.10.2007, he stood tried and convicted for the commission of offence under Section 8C r/w 20(b)(ii)(b) of NDPS Act and sentenced to undergo four years Rigorous Imprisonment and to pay a fine of Rs.30,000/- in default, to undergo six months Rigorous Imprisonment. The accused aggrieved by the said conviction and sentence passed by the trial Court, has filed this appeal.
2.Facts leading to the filing of this appeal briefly narrated are as follows:-
2.1.PW4 was the Head Constable attached to N.I.B Police, Thoothukudi and at about 10.00 A.M on 07.08.2004, while he was on duty, received an information from the informant through telephone and the said information was recorded in the general diary and he has also prepared a report under Section 42(2) of the NDPS Act and forwarded the same to his immediate official superior and it is marked as Ex.P6. PW4 along with PW2 and another Constable namely, Malaiyan, took necessary equipments/kit and proceeded to Thoothukudi-
Tiruchendur road and alighted near the over bridge and in that place, the informant was present. They mounted surveillance and at about 10.30 A.M. they saw two persons in the bus stop and each of them having a plastic bag and they were identified by the informant. PW4 produced his identity card and enquired them and both of them had disclosed their names as Katturaja (appellant herein) and Arumugam. PW4 told them that he received the information that they are in possession of the contraband namely, "Ganja" and they are to be searched and it can be done so in the presence of the Judicial Magistrate or in the presence of the Gazetted official. However, they have expressed their consent to be examined by the police officials themselves. A letter in that regard was also prepared and it was signed by Head Constable Malaiyan, PW2 as well as by both the accused. One of the accused namely, Arumugam has put his left hand thumb impression. A search was effected in the bags possessed by both the accused and each bags contained 1+ kilograms of Ganja. Samples were drawn from each bags and it was separately put in seal and assigned with S1 to S4. The remaining portion of Ganja were also sealed and assigned the mark as B1 and B2. A Mahazar was also prepared in that regard. Both the accused were arrested at about 11.45 P.M on 07.08.2004 and they were brought to the police station and cases in Crime Nos.56 and 57 of 2004 were registered for the commission of offence under Section 8C r/w 20(b)(ii)(b) of NDPS Act. The arrest information was also given to the wife of the accused. The arrest report was marked as Ex.P9. Thereafter, the accused were sent for judicial custody and seized articles were also deposited in the jurisdictional Court in Form-95 and the report was also prepared under Section 57 of the NDPS Act.
2.2.PW5 was the Inspector of Police of N.I.B. C.I.D. Police, Thoothukudi, at the relevant point of time and the case diary was produced by the Sub-Inspector of Police namely, Sivasankaran and PW5 examined PW3- Tmt.R.Meenakshi, Chemical Analyst who has given Chemical Analysis Report of the seizure of contraband under Ex.P5 and on coming to know that it is a narcotic substance (Ganja), prepared the final report charging the appellant/accused for the commission of offence under Section 8C r/w 20(b)(ii)(b) of NDPS Act. The Court of Judicial Magistrate, on receipt of the final report, took it on file in C.C.No.577 of 2004 and issued summons to the accused and on his appearance, framed charges under Section 8C r/w 20(b)(ii)(b) of NDPS Act and questioned him and he pleaded not guilty to the charges framed against him. The prosecution in order to sustain their case has examined PWs.1 to 6 and marked Exs.P1 to P9.
3.The appellant was questioned under Section 313(1)(b) of the Code of Criminal Procedure, 1973, with regard to the incriminating circumstances made out against him in the evidence tendered by the prosecution and he denied it as false.
4.On behalf of the appellant/accused, DW1 was examined and no documents were marked. The trial court on consideration of oral and documentary evidence and other materials, convicted the appellant/accused and sentenced as stated above and hence this appeal.
5.Mr.G.Bhagavath Singh, learned counsel for the appellant has invited the attention of this Court to the oral and documentary evidence and would submit that immediately after arrest and seizure, the report under Section 57 of the NDPS Act has not been sent and though PW4 had deposed that he did send such a report, it was not corroborated by PW6 who completed the preliminary investigation and in the cross-examination, he has deposed that the report sent to the superior official, in turn sent to higher official was not found place in the case diary.
6.It is the further submission of the learned counsel for the appellant, in so far as the other accused namely, Arumugam is concerned, he was separately tried and since he has pleaded guilty, he was let off by taking note of the fact with regard to the period of incarceration already undergone and alternatively would submit, in any event, imposition of punishment of four years Rigorous Imprisonment with the fine of Rs.30,000/- with the default sentence is very much on the higher side and prays for appropriate orders.
7.Per contra, Mrs.S.Prabha, learned Government Advocate (Crl.Side) has drawn the attention of this Court to the evidence of PW4 and would submit that PW4 has categorically stated that he has sent a report under Section 57 of the NDPS Act to his immediate official superior and though PW6 would state that no such document is available in the case diary, in the light of the testimony of PW4, the trial Court has rightly reached the conclusion that all the procedural formalities have been strictly complied with and rightly recorded conviction and prays for dismissal of the appeal.
8.This Court has carefully considered the submission made by the learned counsel for the appellant and the learned Government Advocate (Crl.Side) and also perused the oral and documentary evidence and the original records.
9.The primordial question arises for consideration is whether Section 57 of the NDPS Act is complied with and if it is not so, whether it vitiates the conviction and sentence recorded by the trial court? PW4 on receipt of the information has registered the same in writing and sent a report to his immediate official superior in terms of Section 42(2) of the NDPS Act and it is marked as Ex.P6. After complying with the post-arrest formalities, under Section 57 of the NDPS Act, the concerned official who effects the arrest or the seizure, shall within 48 hours next after such arrest or seizure, make a full report of the particulars of such arrest to his immediate official superior.
10.In the case on hand, though PW4 deposed that he sent such a report, the testimony of PW6 did not support his version and it contradicts the testimony of PW4. The scope of Sections 50, 52, 55, 57 and 15 of NDPS Act came up for consideration before the Hon'ble Supreme Court in Gurbax Singh vs. State of Haryana, reported in 2001 (3) SCC 28 and it has been held that the provisions of Sections 52 and 57 are directory and violation of the said provisions would not ipso facto violate the trial or conviction. However, the investigation officer cannot totally ignore these provisions and such a failure will have a bearing on the appreciation of evidence regarding the arrest of accused or seizure of the articles. In the case on hand, the arrest and seizure was spoken to by PWs 2 and 4. However, immediately after arrest and seizure of the contraband, PW4 is under the mandate to send a report to his immediate official superior under Section 57 of the NDPS Act. This Court in the earlier paragraph has recorded a finding that though PW4 deposed that he did send such a report to his immediate official superior, it was not corroborated by PW6 and the report sent under Section 57 of the NDPS Act was also not marked as exhibit before the trial court.
11.Therefore, in the light of the ratio laid down in the above cited decision reported in 2001 (3) SCC 28, the arrest and seizure become doubtful and therefore, it would not be safe to sustain the conviction recorded by the trial court against the appellant/accused.
12.In the result, the Criminal Appeal is allowed and the conviction and sentence passed in the judgment dated 04.10.2007 in C.C.No.577/2014 on the file of the Special District & Sessions Court for EC & NDPS Cases, Madurai, are set aside and the appellant/accused is acquitted of the charge under Section 8C r/w 20(b)(ii)(b) of NDPS Act. The bail bond stands terminated and the fine amount, if any, paid by the appellant shall be refunded to him.
25.02.2015 Index : Yes / No Internet : Yes / No NB2 To The Judge, Special District & Sessions Court for EC & NDPS Cases, Madurai.
M.SATHYANARAYANAN, J.
NB2 ORDER MADE IN CRL.A(MD)No.186 of 2008 DATED : 25.02.2015