Indian Kanoon - Search engine for Indian Law

10. On information that Accused-1 to 3 were selling medicines including Pethidine and Morphine. P.W.34 laid a trap on 18.3.1981 and sent P.W.1 as a decoy, giving one 50 rupee note after recording the number of the said Rs.50/- rupee note in the Mahazar, Ex.P.3; When P.W.1 went to the house of A.1, A.1 was not present; but A.2 and A.3 were present and A.2 sold 10 Pethidine and 10 Morphin injunctions for Rs.5 0/- that was handed over by P.W.1 to P.W.34. Then, P.W.34 prepared a Mahazar, Ex.P.4 and seized the 10 Pethidine and 10 Morphine injunctions. Immediately P.W.34 proceeded to the house of A.1 at Door No.18, Azad Street, Perambur along with the police party; A.2 and A.3 were in the house; A.3 was searched, the 50 rupee note given by P.W.34 to P.W.1 was found in the packet of A.3 and that was seized; Thereafter, the house was searched; large quantities of medicines and drugs were found and they were seized under the Mahazar Ex.P.2. P.W.34 took Ex.P.1, the thumb impression of A.2 in the seizure mahazar. During the search 16 ampules of Morphin and 688 ampules of Pethidine were also seized. Besides these narcotic drugs, a lot of drugs supplied to Government hospitals (some of them bearing Government Hospital stamp marks and some of them bearing E.S.I. Dispensary stamp marks) were found in card-board boxes as well as strewn on the floor; From the bed room of the house, another quantity of hospital goods, surgical instruments, (some of them had Government hospital logo/stamp marks) were also seized. A.2's thumb impression was also obtained in the seizure mahazar. They were found in the place and in possession of persons who had no licence or authority to purchase or stock or to deal with the goods. Further, they had no authority to possess Government Hospital drugs in such large quantities. Immediately, A.3 was arrested. A Search List was handed over to A.2. Thereafter, the case was registered against A.1 to A.3 by P.W.34; Ex.P.144 is the F.I.R.

11. On interrogation of A.3, it came to light to P.W.34, that there was a big racket by which the narcotic drugs like Morphine and Pethidine were regularly brought from Andhra Pradesh and sold in Tamil Nadu and that also the drugs supplied to various Government Hospitals as well as E.S.I. Dispensaries were illegally removed by the staff working in those Hospitals; they were purchased by A.1 and sold to A,5 and A.11 in Andhra Pradesh at a cheaper rate. On 23.3.1981, A.1 was arrested in his house. A.1 produced five piece of papers, Exs.P.126 to 130, in which names of hospital drugs , Exs.P.126 to 130 found written. A.1 also produced seven prescriptions, Ex.P.146 series for purchase of Morphine injections at Vijayawada at various dates prior to the registering of this case. On 1.4.1981, A.1 pointed out A.4 and his house was searched in the presence of P.W.6; From the house of A.4, six items of drugs bearing hospital stamp marks, M.Os.253 to 258 were seized under Ex.P.13 search list attested by witnesses. The search list, Ex.P.13 was also signed by A.4. Thereafter, A.1 took P.W.34 to the house of A.8 and his house was also searched in the presence of P.W.6 and M.Os.259 to 261 and Hospital store note book Ex. P.14 were recovered under search list Ex.P.15. Thereafter, on 7.4.19 81, A.12 and A.13 pharmacists employed in E.S.I. Hospital, Tiruvottiyur were arrested and examined. Thereafter, P.W.34 went to Vijayawada for investigation along with P.W.5 and a Drug Inspector and perused the records of the firm, "Siris" pertaining to manufacture and distribution of Pethidine injection. Ex.P.148 is the letter written by the Investigating Officer to M/s. Siris and Company seeking certain particulars relating to Pethidine injection manufactured in Batch No.011 14; Ex.P.149 is the reply by "Siris" giving the list of persons to whom the Pethidine manufactured in that batch No.01114 was sent; Ex.P.150 is the list of supply of a portion of pethidine injections, the name of A.5 is found in the list; on perusal of the records, it was found that 50 boxes each containing 10 ampules of Pethidine have not been accounted for by Guntur Medical Hall belonging to A.5; but no complaint was made for non-receipt by A.5.

12. Thereafter, P.W.34 arrested A.14 and he pointed out the house of A.7 at Jegannatha Nagar, Arumbakkam. The house of A.14 was searched in the presence of A.6; 13 items of drugs and surgical items, M.Os.239 to 252 belonged to various Government Hospital and some of them bearing the Government logo marks and they were seized under Search List, Ex.P.5. On 1.8.1981, P.W.34 searched the house of A.9 on information at Door No.130, M.M.D.A. Colony, Arumbakkam; A.9 and A.10 were in the house. When the house was searched in the presence of witnesses, two suit cases, M.Os.262 and 264 and three card board boxes, M.Os.265 to 367 containing drugs bearing Hospital stamp marks or logo marks were seized. A railway ticket in the name of A.10 was also seized in Ex.P.31; Search Mahazar Ex.P.32 contains the list of drugs that were seized in the presence of witness, P.W.8; Copy of the Search List was handed over to the accused-9 and 10. The drugs that were seized also contained 25 ampules of Morphine injection; a Railway ticket in the name of A.10 for travelling from Chennai to kammam on 3.8.1981 along with reservation ticket was also found. These drugs were marked as M.Os.67, 265, 269, 270, 273, 276, 277, 278, 280, 282, 284, 286, 287, 288, 289; the seals were sent to Forensic Department. P.W.31 examined them and gave the opinion that the specimen seal of the hospital and the seals found in the drugs were found to be similar; the injections were examined and certified by Scientific Assistant, P.W.31, as pethidine and Morphine.

31. The counsel appearing for the Revision Petitioner filed by A.9 and A.10 argued that P.W.34 has stated nothing was recovered from the house of A.9; A.10 has no connection with the house from which these medicines were seized; It was seized from one Padma; who has been examined only as a witness; A.9 and A.10 are not related to each other. From this evidence, it is not sufficient to hold that A.9 and A.10 were found to be in possession of these medicines. Apart from this, there is no evidence except the confession of A.3 to connect A.1 0; Since A.3's confession is the confession of the co-accused, it cannot be relied upon. The charge against A.10 cannot be said to be proved. Therefore, the conviction of A.9 and A.10 is not sustainable and it has to be set aside. In his evidence, P.W.8 has stated that the house at Door No.130, "J" Block, M.M.D.A. Colony, Arumbakkam was searched and at that time, A.9 and A.10 were present along with one Padma. From that house, two suit cases, M.Os.263 and 264 and three card board boxes were seized. In the suit case and in the card board boxes, M.Os.265 to 367 were seized; They were seized by mahazar attested by witnesses; these medicines contained the Government logos and Government Hospital seals and rubber stamps; He also states that in the search list, signatures of A.9 and A.10 were obtained; Ex.P.32 is the search list. P.W.34 has also stated A.9 and A.10 were in the house at M.M.D.A. Colony and when it was searched, and M.Os.263 to 367 were seized from the house. Among the documents which were seized from that house, a railway ticket in the name of A.10 and a marriage invitation issued to A.10 were also seized under the mahazar, Exs.P.31 and P.32. A copy of the search list was given to A.9 and A.10. It contained morphine injections. In the cross-examination by A.9 to A.11, P.W.34 has stated that A.9's usual residence is at Nehru Nagar, Madras and the recovery of M.Os. was at his another residence at Arumbakkam which he had taken for rent; he denied the suggestion that A.9 and A.10 were not arrested from that house. Accused-9 and 10 in the statement under Section 313 Cr.P.C. has stated that they had no connection with the house from which these M.Os. were seized. P.W.12 who is the owner of the house at No.J.130, M.M.D.A. Colony, Arumbakkam has stated in his evidence that this house was rented to one Padma. According to him, A.10 Venugopal is Padma's father's brother. After coming to know the fact that contraband medicines were seized from that house, he asked them to vacate the house. In the crossexamination, he has stated that the house was rented out only to Padma. Further, he has stated that during his examination by the police, he did not say that A.10 accompanied Padma at the time of getting the house for rent. From this evidence of P.W.12, that A.9 was the tenant of this house has not been proved. There is n o evidence even to show that A.9 was residing in that house. No other witness has been examined to prove that A.9 was in fact residing in that house. Similarly, there is no evidence that A.10 was residing in that house along with Padma. Therefore, the only evidence against A.9 and A.10 is the fact that they were present in the house when that house was searched. In the circumstances, it is difficult to hold that the house was rented by A.9 and the contraband was in exclusive possession either of A.9 or A.10, since the house was rented by one Padma who was examined only as a witness, and not been arrayed as an accused. The presumption is the person who has rented the house is in possession of the contrabands seized from that. There is no material to corroborate the evidence of P.W.34 that Padma was the concubine of A.9 and therefore, from this evidence, it cannot be held that A.9 or A.10 were in exclusive possession of the medicines. This proposition gets strengthened by the fact that even according to the prosecution, A.9 was residing in Nungambakkam. Therefore, in the absence of any evidence that this house was rented by A.9 and was in possession of A.9, it is not possible to hold that A.9 was in exclusive possession of the contrabands. Therefore, the conviction and sentence against A.9 and A.10 cannot be sustained. The appellate Court convicted A.9 and A.10 only on the ground that they were present in the house and the search list was signed. The mere presence of A.9 and A.10 cannot be a proof that they were in exclusive possession of the house. Therefore, a reasonable doubt arises as to whether A.9 was a tenant in that house and whether it was in exclusive possession of A.9 and A.10. The accused are entitled to the benefit of doubt. Therefore, A.9 and A.10 are liable to be acquitted on the basis of the benefit of doubt. The invitation given to A.10 and the railway ticket of A.10 would not be the conclusive proof that A.9 and A.10 were residing in that house. Therefore, the conviction of A.9 and A.10 is liable to be set aside. Hence, it is set aside.