RAGINI Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) When Cri. M.P. No. 4710 of 1992 was taken up for hearing learned counsel appearing for the petitioner submitted that the questions of law involved in the appeal have to be advanced at the time of hearing of the application for bail also. Hence, by consult of both parties, the main criminal appeal itself is taken up for final disposal. The accused has been charged for the offence punishable under Section 8 (c) read with Section 21 of Narcotic Drugs and Psychotropic Substances Act and she was convicted and sentenced to undergo rigorous imprisonment for ten years and also to pay a fine of Rs. 1 lakh, in default to undergo rigorous imprisonment for one year. The prosecution has examined P.Ws. 1 to 7 and marked Exs. P1 to P7 and marked M.Os. 1 to 4. The accused denied the charge and pleaded not guilty and the accused has examined Raju, her. husband as D.W. 1. P.W. 1 is a head constable in NIB, CID and P.W. 4 is the Sub Inspector of Police. On information given to P.W. 4 on 19.4. 1991, P.W. 1 along with P.W. 4 Kalidoss, Inspector of Police, Ali Basha and Packiaraj, Head Constables went on Poonamallee High Road and opposite to the SI Andrews Church, when they were waiting for the person against whom an information was received earlier P.W. 1, Kalidoss and P.W. 4 wanted to search the accused and the accused told him that she was not selling any heroin and the Inspector of Police asked her as to whether she could be searched in the presence of the Gazetted Officer or Magistrate nearby and the accused seemed to have told him that she did not require for the same and she permitted the Inspector of Police to search her arid she herself voluntarily produced a pocket containing the heroin and the same was seized by P.W. 1 and they were sent to the Forensic Scientific Laboratory for opinion. M.O. 1 are the packets, M.O. 2 are the empty covers, M.O. 3 is the polythene cover, M.O. 4 is the brown cover containing M.O. 1 the Sub Inspector of Police obtained the signature of P.W 1, the accused and also another witness Chinamuthu. P.W. 2 Marikannu is the Interpreter of the VI Additional Sessions Judge, Moths. According to him, he received the contraband sent for chemical examination by the Forensic Scientific Laboratory. P.W. 3 is the Scientific Assistant Grade I and according to him, he identified the contraband to be heroin from the report of the expert. The evidence of Thangavelu. Inspector of Police is that when the informant identified the accused he apprehended the accused and seized the heroin from the person of the accused and she herself voluntarily produced the same. His evidence is that she did not require to be examined by a Gazetted Officer or by a Judicial Magistrate and she herself voluntarily produced the contraband before P.W. 4. The accused denied the evidence of the prosecution witnesses as not true when she was examined under Section 313 of the Code of Criminal Procedure and she examined her husband as D.W. 1 Whose evidence is that the-wife of the D.W. 1 was taken from the house during night and that the case has been foisted against her voluntarily.

(2.) Learned Sessions Judge accepting the case of the prosecution found the accused guilty for the offence and convicted and sentenced him as stated -above. Aggrieved by the said Judgment of the lower Court, the accused has preferred this appeal challenging the legality of the same. Mr. Doraiswamy, learned counsel for the accused appellant contended that the prosecution has failed to follow the mandatory provisions of the Act and that the non compliance of the same would vitiate the entire prosecution and in the result the conviction and sentence awarded against the accused are illegal. He has further pointed out that there is no written report about the information said to have been obtained by P.Ws. 1 and 4 before the accused was apprehended that this is violation of the provisions of Section 41 of the Act and that the non compliance of the same would vitiate the entire case. The second contention raised by the learned counsel for the petitioner is that there is no independent witness examined on the side of the prosecution to attest the seizure and to figure as a witness subsequently. There is clear violation of Section 42(1) of the Act and as rightly pointed out by the learned counsel for the petitioner that the Officer who apprehends the accused and seized the contraband has not recorded any information in writing and that this would vitiate the mandatory provisions of 4 the Act. In the decision reported in Usman Haidarkhan Shaikh v. State of Maharashtra1 a Division Bench of the Delhi High Court has pointed out that the violation of Section 42(i) of the Act would vitiate the prosecution.

(3.) In the result, the prosecution has failed to prove the charge and the findings of the trial Court cannot be upheld. The conviction and sentence imposed by the trial Court are set aside. The accused is acquitted this appeal is allowed. Appeal allowed.