PONNUTHAYEE AMMAL ALIAS MAYAKKA Vs. STATE

JUDGEMENT

(1.) THIS appeal has been filed by the accused challenging the judgment and sentence of the Special Court, N.D.P.S., Thanjavur, dated 12.10.1994 made in C.C.66 of 1994 convicting the appellants under Sec.20(b)(1) of the N.D.P.S. Act and imposing a sentence of three years rigorous imprisonment for A-1 apart from a fine of Rs.3,000 and in default to pay fine, to undergo a further period of imprisonment of 12 months, sentencing the second and the third appellants to undergo one year rigorous imprisonment apart from a fine amount of Rs.1,000 and in default to pay fine, to undergo three months rigorous imprisonment.

(2.) THE case of the prosecution was that on 25.3.1993 around 12.10 p.m., P.W.4 received an information as recorded in Ex.P-4 to the effect that ganja was being sold in large quantities at the behest of one lady Mayakka in the premises situated at hut No.39, Alagappan Street, Kumbakonam along with her associates, that after recording the said information under Ex.P-4, he forwarded it to the higher authority namely the Deputy Superintendent of Police, NIB, CID, Madras, who was camping at Kumbakonam on that day, that under Ex.P-5, the said higher authority namely the D.S.P., NIB, CID, authorised P.W.4 to proceed to the spot immediately, search the place and the persons and to take action by observing legal formalities, that after around 1 o"clock, he went to the All Women Police Station and took P.W.2, a lady constable, along with him and the other parties, that on the way to the premises in question, P.W.1 and Thiru Balraj, two independent persons were also requested to accompany them, who acceded to the request and accompanied the party, that on entering the premises in question, all the three appellants were found inside the house, that A-1 was at that point of time, weighing ganja from a gunny bag in a balance that was available with her and was collecting it on the floor, that A-2 and A-3 were making small packets of ganja from the ganja heaped on the floor, that P.W.4 entered along with the party, that he got himself introduced and informed that he wanted to search the house to take further action, that he also showed the authorisation made in his favour, that A-1 identified herself by stating that her name as Ponnuthayee Ammal alias Mayakka residing at 39, Alagappan Street, Kumbakonam, that A-2 and A-3 also revealed their names as Saminathan and Manoharan, that thereafter, P.W.4 after ascertaining as to whether the first accused would like to get herself searched in the presence of a Magistrate or a Gazetted Officer to which, she answered in the negative, that thereafter with the assistance of the lady constable P.W.2, P.W.4 weighed the ganja heaped on the floor with the weighing balance available with A-1, that it weighed to the extent of 7,350 kgs, that when the ganja found in another bundle near A-1 was weighed along with the gunny bag, it weighed to the extent of 6.500 kgs, that he took the samples of 50 gms. each from the above said 7,350 kgs. and 6.500 kgs, that he took four such samples from each of those two different stocks of ganja, that when he weighed the ganja which was found in small packets collected in blue colour polythene bags, the same weighed to the extent of 3.500 kgs, that he also took two samples of 50 gms, each from that stock also. It is stated that around 4.30 p.m. after preparing the mahazar Ex.P-2, the accused were arrested and brought to the travellers bungalow where the crime was registered under Sec.8(C) read with Sec.20(b)(1) of the N.D.P.S. Act. It is also stated that F.I.R. Ex.P-5 was prepared and that a report under Sec.57 in Ex.P-7 was also forwarded to his immediate higher authority.

(3.) AS far as the contention based on Sec.6 of the Evidence Act is concerned, as pointed out by me in the beginning itself, merely because in Ex.P-5 there was a reference namely that P.W.4 should proceed immediately to the spot and conduct a search on the place as well as the persons, it cannot be stated that on that basis, it should be construed that search on person would become very relevant so as to detach from the search of the place on the footing that both the facts from part of the same transaction. A reading of the said provision in my opinion has no application to the facts of the case. Having regard to the case of the prosecution launched against the appellants herein there is no scope for contending that the search on the body of the person would become very relevant. In the case on hand, the search on the place and person cannot be stated to be interconnected inasmuch as the whole basis of the case of the prosecution was that A-1 was trafficking in the contraband of ganja in the premises in question. That was the basis for the initiation of the whole case of the prosecution. In fact, based on the said information, when a search was conducted in the premises in question, it turned out that the said information received under Ex.P-4 was true. When the presence of contraband of ganja in so much quantity namely to the tune of 17.350 kgs, was found available in the premises in question, there was no necessity at all for P.W.2 to carry out any further search on the body of the persons namely, A-1 to A-3. Therefore, the said fact that A-1 to A-3 were present with the contraband of ganja lying on the floor and in the gunny bags did not ipso facto create any situation for carrying out a search on the body of A-1 to A-3 and such being the position, it cannot be said that the necessity of carrying out a search on the body of A-1 to A-3 was connected with the contraband seized from the premises in question. In the absence of any scope for carrying out a search on the body of a person, the only conclusion could be that such a situation cannot even be remotely connected to the fact that in an issue namely the search and seizure made from the premises in question. Therefore, as held by me, Sec.6 is not at all attracted to the facts of this case.