THANGAM Vs. STATE

JUDGEMENT

(1.) This appeal has been preferred by the accused against the judgment and conviction passed by the Trial Court under Section 20(B)(1) read with Section 8(c) of NDPS Act in C.C.No. 199/94, convicting the appellant for 36 months imprisonment already undergone apart from imposing a fine of Rs. 36,000/-.

(2.) According to the prosecution, PW. 2 along with his other Officers was on a General patrolling on 19-4-1994 around 16.45 hours in front of one Gemini Workshop on Arappalayam main Road, that the appellant was proceedings from West to East and crossed the main road by carrying a gunny bag on his head; that at that point of time when two other persons, Malaisamy and Ravi who were also proceeding from West to East, just in front of the appellant were requested by P.W. 2 to act as witnesses, they refused to accept his request; that thereafter the Sub-Inspector Natarajan and one constable Narayanan were called to witness the occurrence; that in the presence of those witnesses, the appellant was stopped, that the appellant revealed his name as Thangam and also disclosed his Address, that when he was questioned as to what was contained in the gunny bag, the appellant admitted that it contained Ganja which was procured from an unknown person near Devaram; that when he was asked as to whether he would like to get himself examined in the presence of the Magistrate or a Gazetted Officer, the appellant expressed in writing that P.W. 2 himself could carryout the search; that the letter was Ex. P. 1, that the gunny bag brought by the appellant was searched which contained Ganja weighing to an extent of 18 kgms; that from and out of the contents found in the gunny bag, two samples weighing about 50 grams each was separately packed and sealed under M.O. 1, that on the same day around 19.00 hours the appellant was brought to the NIB, and a case was registered in Crime No. 21(E) of the Act, that necessary FIR was also registered, that thereafter the appellant was sent for remand along with Form-95. It also transpires that on the basis of the request made under Ex. P4, the Court under Ex. P5 forwarded M.O. 3 for Chemical examination. Based on the evidence of P.Ws. 1 and 2 and Exs. P1 to P7, the Trial Court passed the impugned judgment convicting the appellant to undergo the punishment mentioned above. As against the said conviction the present appeal has been preferred.

(3.) The learned counsel for the appellant, first and foremost contended that the case of the prosecution is vitiated in view of the following factors viz.,