Madras High Court
Jagan Babu vs / on 1 March, 2019
Author: G.Jayachandran
Bench: G.Jayachandran
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 18.02.2019
Pronounced on : 01.03.2019
Coram:
The Honourable Dr.Justice G.Jayachandran
Criminal Appeal No.849 of 2011
and M.P.No.1 of 2012
1.Jagan Babu
2.Bhavani
3.Pushpavalli .. Appellants
/versus/
State by
The Inspector of Police,
NIBCID, Chennai .. Respondent
Criminal Appeal has been filed under Section 374 (2) of Criminal
Procedure Code praying to set aside the conviction and sentences passed by
the Principal Special Judge, Special Court under EC & NDPS Act, Chennai
and made in C.C.No.122 of 2003 by judgment dated 23.12.2011.
For Appellants :Mr.T.S.Srinivasan
For Respondent :Mr.T.Shanmuga Rajeswaran, GA
--------
JUDGMENT
The Criminal Appeal is directed against the judgment of conviction and sentence passed by the Special Court for NDPS Act Cases, Chennai in C.C.No.122 of 2003 dated 23.12.2011.
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2. Before the trial Court, the accused 1 to 3 who were found in possession of 5 kg of ganja, 50 grams heroine and 2350 numbers diazepam tablets respectively were held guilty. The 4th accused who was charged for abetting A1 to A3 was found not guilty and acquitted. The convicted accused are the appellants herein.
3. The brief facts of the prosecution case:
On 11.12.2002 at about 12.30 hours, Thiru. Prathap Singh, Deputy Superintendent of Police attached to NIBCID, Chennai received a secret information from his informant that (1) Jagan Babu, (2) Bhavani (3) Pushpavalli and (4) Neelammal are likely to come to Gopalchetti St., Rajaji Salai junction with ganja, heroine and narcotic tablets to sell it between 13.30 and 14.30 hours.
4. On receiving this information over phone, Thiru. Prathap Singh, Deputy Superintendent of Police (PW.3) reduced the information into writing (Ex.P.3). Directed Thiru.Manialagan (PW.2) to take necessary action on the information. As per the said direction, Manialagan (PW.2) formed a team consisting of Sub Inspector Rangasamy (Not examined) Women Constable Usha Nandhini (PW.4) and thus went to the Gopalchetti Street, Rajaji Salai junction. At about 14.30 hrs, the informant identified 2 women http://www.judis.nic.in 3 and a man. One among the woman was carrying a white colour polythene bag. The male was carrying a yellow colour bag. All three were intercepted and enquired. They disclosed their names as Bhavani, Pushpavalli and Jaganbabu. After explaining to them about the information received about them, option to be searched before a Gazetted Officer or a Judicial Magistrate was given. They all declined to exercise the above said option and requested the Inspector to conduct the search. The intimation to the accused persons about their right and their reply were recorded in writing Ex.P.4 to Ex.P.6. Since public refused to stand as witnesses Rangasamy, S.I. And Ushanandhini Constable were asked to stand as witnesses to search. In the yellow colour bag carried by Jagan Babu (A1), they found 5 kgs ganja. Two samples each 50 grams was drawn from the bulk. It was packed and sealed separately. Marked as S1 and S2. The remaining bulk 4.900 kg was packed and sealed. Marked as Ex.P.1. The details were written on a label and pasted.
5. In the white colour polythene bag carried by Bhavani (A2) they found 100 small packets they found the packets contain hereoin. The total weight was 100 grams. Same was packed and sealed. Marked as Ex.P.2. The details were written and labelled. The other lady Pushpavalli was searched by Ushanandhini (PW.4), in the white colour polythene bag carried by http://www.judis.nic.in 4 Pushpavalli (A.3) they found 2350 ampuls of diazepam in 4 packets and 350 vial of abin. From each packet 5 sets of ampuls were taken for analysis. They were marked as S1 to S10. From the said samples 2 ampuls from each packets were drawn and marked as S11 to S14. The samples were sealed separately and labelled. The contrabands were seized vide Mahazar (EX.P.7). The accused were arrested. The confession statement of the accused A1 to A3, were recorded. The enquiry with A1 to A3 disclosed that narcotic and psychotropic-substances were given to them by one Neelavathi. The accused and the contraband were brought to the police station FIR under Crime No. 115 of 2002 was registered under Section 8 (c) r/w 20 (a) (ii) (B) ; 8 (c) r/w 21(b), 8(c) r/w 22 (b) r/w 22 and 29 of the NDPS Act. A full report about seizure and arrest was forwarded by the Inspector of Police (PW.2) to the Deputy Superintendent of Police (PW.3). The investigation was taken up by the Inspector Muthaghir (PW.5) sample packets of ganja, heroine and the samples of Diazypam vials seized from the accused persons were sent for analysis. Tmt.Devaki (PW.1) who received the samples at State forensic laboratory along with the requisition letter Ex.P1 of the Special Judge, NDPS Court compared the seal found tallied and intact. Received it and subjected the samples to analysis. She sent her report Ex.P.2 confirming presence of cannabinoid in S1 packet, sample drawn from the bulk 5 kg leaves and buds of ganja from A1. Diacetyl http://www.judis.nic.in 5 morphine in the powder in all packets 100 in numbers marked as Ex.P.2. In the vials marked as S3, S5, S7 and S9 found presence of diazepam. In the 5 vials marked as S.15 presence of pherramine maleate was found. cannabinoid is the chemical present in ganja. Diacetyl morphine is a derivative of opium a psychotropic-substances. Diazepam is a psychotropic- substances.
6. Based on the final report filed by the respondent police on completion of investigation, the trial Court has framed the following charges:
A1-Jagan Babu - 8(c) r/w 20(a) (11) (b) of NDPS Act A2-Bhavani - 8(c) r/w 21 (b) of NDPS Act A3-Pushpavalli - 8(c) r/w 22 (b) of NDPS Act A4-Neelambal -Section 29 r/w 20 (a) (11) (b) and 21 (a) r/w 22 (b) of NDPS Act The trial Court on appreciating the evidence before it found A1 to A3 guilty of the offence charged. Acquitted A4.
7. In the appeal preferred by A1 to A3, aggrieved by the conviction and sentence it is contended that, the respondents failed to follow the mandatory provisions under the NDPS Act before conducting the http://www.judis.nic.in 6 search. The seizure of the alleged contraband not proved through independent witnesses PW.2 to PW.5 are all police witnesses and the contradiction in the testimony not properly appreciated by the trial Court.
8. The learned counsel for the appellants submitted that Ex.P.3 secret information though contains 4 persons name, who are likely to bring ganja, heroine and narcotic drug vials in general, whereas, when the accused were asked to exercise their option under Section 50 of the NDPS Act. It is recorded specifically that PW.2, has received information that A1 carrying ganja, A2 carrying heroine and A3 carrying narcotic drug vials. Neither PW.2 who recorded the prior intimation before search nor PW.3 who recorded the secret information could explain how PW.2 got the knowledge that A1 to A3 possess ganja, heroine and narcotic drug vial respectively.
9. According to Ex.P.2 information, 4 named persons likely to come with the contrabands to the junction Gopal chetty, Rajaji Salai junction at rave area 4th Beach Road. Only 3 persons were identified and arrested with respective contrabands. The 4th accused Neelammal was shown as absconding accused. The prosecution case is that A1 to A3 confessed that 4th accused supplied the contraband to them. The http://www.judis.nic.in 7 respondent has failed to investigate the role of 4th accused Neelammal. They did not place before the Court how and when the absconding accused Neelammal was secured. Whether she and the accused A1 to A3 had any meeting of mind connected in the drug trafficking, in the absence of evidence, the trial Court has rightly acquitted A4. For the same reasons, these appellants ought to have been acquitted for want of proof.
10. The learned Government Advocate for the respondent would contend that on 11.12.2003 at about 12.30 hours PW.3 received the information about drug trafficking, same was recorded by PW.3 and directed PW.2 the Inspector of Police to take necessary action. Thereafter, PW.3 has forwarded a report to his superior officer under Section 57 of the NDPS Act. This report is marked as Ex.P.20. In this report the Superintendent of Police has noted 'seen' and signed. PW.2 and his team went to the spot along with the informant. On identification of the accused by the informant they were searched after intimating about their right under Section 50 of NDPS Act. The accused have understood their right and signed. The search was in a public road and seizure was from the bags carried by the respective accused. Since the public did not come forward to be as a witnesses, after recording the same, the seizure was effected under Mahazar. The specific mentioning of the nature of the contraband, they http://www.judis.nic.in 8 suspect to carry will not vitiate the search since the information, search and seizure were all part of same transaction which started at 12.30 p.m., at NIB office and ended at about 14.30 hrs at Gopalchetty-Rajaji Salai junction. The contraband seized from the respective accused were duly labelled and the accused persons have affixed their signatures on it. Thus, the prosecution has proved the possession of Ganja by A1, Heroine by A2 and diazepam a narcotic drug by A3. The seizure was done after complying the mandatory conditions of the Act.
11. Regarding the contention of the appellants that there was violation of mandatory provisions of the NDPS Act. To start with, on the perusal of Ex.P.2 the information regarding the accused which has been reduced into writing and forwarded to immediate superior officer it does not indicates any violation of the provisions of the NDPS Act. Under Section 42(2) of the Act, which says, “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” Ex.P.2 and the testimony of PW.2 and PW.3 proves the respondent have completed the above provision of NDPS Act.
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12. Next, the seizure and arrest of the appellants were in a public place. Based on the reasons to believe that they were in possession of substance prohibited under the NDPS Act, PW.2 has conducted the search. Before conducting the search he has informed the accused persons about their right under Section 50 of the NDPS Act. This fact is proved through Ex.P.4 to Ex.P.6. In these exhibits the respective accused persons have affixed their signatures indicating their consent to be searched by the Inspector of Police PW.2. According to PW.2, the informant came along with the team to identify the accused persons. So after intercepting the accused persons in the spot expected, during the prior intimation before search the nature of the contraband the suspected possess is specifically mentioned. When the search and seizure is based on prior information and at public place coupled with the fact that the informant was present this addition in the search memo does not appears to be doubtful. Further the accused have affixed their signatures in the Seizure Mahazar and on the contraband. So there is no scope to doubt the prosecution case to further strengthen the case DW.1 Ganesan, the Court staff has deposed from the records that he found the seized contraband were produced before the Judicial Magistrate on 11.12.2002, the very same day of it seizure and it was returned to be produced before the Special Court for NDPS Cases. On 27.12.2002, the http://www.judis.nic.in 10 property along with requisition letter to forward the sample to chemical analysis was sent to the Special Court.
13. The evidence of DW.1 would prove that there was no delay in forwarding the seized property to the Court. When the prosecution has proved through evidence about the possession of contraband by the accused which are prohibited substance under the NDPS Act, the accused are bound to account satisfactorily the illicit possession under Section 54 of the Act. Having failed to satisfactorily account for its possession, it has to be presumed to be illicit possession and the accused persons prescribed to have the culpability.
14. For the reasons stated above, the appeal is dismissed. The Trial Court conviction and sentence imposed on the accused is confirmed. Bail band if any shall stand cancelled. The accused shall be secured to undergo the remaining period of sentence. Period of imprisonment already undergone shall be set off under Section 428 of Cr.P.C.
01.03.2019 Speaking order/Non speaking order Index: Yes/No rpl http://www.judis.nic.in 11 To
1.The Principal Special Judge, Special Court under EC & NDPS Act, Chennai
2.The Section Officer, Criminal Section, High Court, Madras.
http://www.judis.nic.in 12 Dr.G.JAYACHANDRAN,J.
rpl Pre Delivery Judgment made in Criminal Appeal No.849 of 2011 01.03.2019 http://www.judis.nic.in