R. BALAMURUGAN Vs. STATE

JUDGEMENT

(1.) The appellant is arrayed as an accused in C.C. No. 7 of 2011, on the file of the Court of Additional District Judge for Principal Special Court for N.D.P.S. Act Cases, Madurai, on the basis of the complaint given by the respondent herein. The trial Court found the accused is guilty for the commission of offences under Section 8(c) r/w 21 (C) of NDPS Act and imposed a sentence to undergo R.I. for 10 years and also imposed a fine of Rs. 1,00,000/-, in default, to undergo R.I for a period of 3 years, vide Judgment dated 30.12.2011. The trial Court further found that the accused is not guilty for the commission of offence under Section 8(c) r/w 25 and 8(c) r/w 29 of NDPS Act. The trial Court further directed the period of sentence already undergone by the accused is to be set off under Section 428 Cr.P.C. Challenging the sentence and conviction passed by the trial Court, the accused has filed this Criminal Appeal. The facts leading to this appeal are as follows:

(2.) The accused as well as the seized contraband were brought to the office of the Customs at Kanyakumari at about 5.30 p.m., on 14.09.2010. With regards the seizure of some of Rs. 90/-, which has found on the shirt pocket of the accused, was given back to him and a receipt was obtained.

(3.) For the purpose of enquiring the accused, he was issued with summons under Section 67 of the Narcotic and Psychotropic Substances Act, 1985 (NDPS Act) with a direction to come and appear before him on the next day on 15.09.2010 and it was marked as Ex. P.12. In terms of summons, that accused was present on 15.09.2010 and he was informed that any statements given by him under the said provision will be used against him in any Court in this Country and inspite of intimation of warning, the accused voluntarily come forward to give a statement and as per the statement, he was introduced by one Guru (absconding accused) by his uncle Jesudasan from whom, he has purchased the contraband and the said Gurur asked him about 15 days prior to the occurrence to sell it for Rs. 2,00,000/- and for effecting the sale, the accused made arrangement with one Manikandan (absconding accused) and since Manikandan asked him to come near Athankarai Mosque on 13.09.2010, he was waiting near that place with contraband. The statement given by the accused under Section 67 of NDPS Act was recorded by P.W.2 and it was read over to him and after understanding and accepting the contents of the same, the accused has put his signature and it was also counter signed by P.W.2. A copy of the same was also furnished to him. On 15.09.2010 at about 8.00 a.m., the accused was explained the reason for his arrest and thereafter, he the accused viz., Rajendran was also informed of his arrest by means of Telegram and the copy of the Telegram was marked as Ex. P.14. The accused along with the seized contraband etc., were produced before the Court of Judicial Magistrate No. 1, Nagercoil and the accused was remanded to judicial custody for 15 days and further order was passed to deposit the case property on the file of Court of Special Court for NDPS Act cases at Madurai on 16.09.2010. The seized contraband etc., were sent through P.W.4, Ashokumar to Madurai and it was deposited in the Court on 22.09.2010. P.W.8 has prepared a detailed report under Section 67 of NDPS Act and submitted the same to the Assistant Commissioner of Customs viz., Mr. S.K. Reddy. On 16.09.2010, the house of the accused was searched and nothing incriminated was found and having come to know that the arrangement for purchasing the contraband was made through uncle of the accused viz., Jesurajan and that he was available in a lodge at Mannadi, Chennai. The room in which was occupation of Jesurajan was searched and three photographs were seized and relevant records with regards to his stay in the lodge were also seized. The photographs were marked as M.O.I series and the register maintained by the Hotel was marked as Ex. P16 subject to objection. P.W.8 on 25.08.2010 summoned P.W.6 Sasi and L. Sekar, independent witnesses for the purpose of recording the statement under Section 67 of the NDPS Act and accordingly, they appeared on 27.09.2010 and gave their statement. Since both of them have not acquainted with the Tamil language their statements were written by P.W.I in English and they also acknowledged the correctness of the contents of the said statement and put their signatures. Thereafter, P.W.8 made arrangements for testing the samples by conducting quantitative and of qualitative test and the sample of seized contraband was sent through P.W.I and a requisition was also submitted to the Court marked as Ex. P8. The Analyst after analysing the sample has submitted his report stating that the contraband is Narcotic substance viz., Heroin. It was also indicated in the said report that the machine to do the quantitative test, is not in order and therefore, after obtaining necessary permission from the Court, the sample was again sent for chemical analysis. P.W.7, who is the Scientific officer attached to the Forensic Science Department, Government of Tamil Nadu, has given his report dated 06.07.2011, which is marked as Ex. P.11 stating that the analysis of sample leads to detection of diacetyl-morphine sample and the percentage was found to be 61.06 w/w. Subsequently, P.W.8 made a requisition to examine the accused, who was in judicial custody and the said requisition was marked as Ex. P.20 and after obtaining permission, the accused was interrogated in jail and the photographs seized in a lodge at Mannady, Chennai was shown to him and in one photograph he was found along with his uncle Jesudhasan. P.W.8, Superintendent of Customs, during the course of investigation has found that on 14.09.2010, the accused through the friend of Jesudhasan viz., Guru (absconding accused) intend to sell the psychotropic substances for a higher amount and accordingly, purchased 440 gms of Heroin and made arrangements to sell it through Manikandan (absconding accused). After completing the investigation, P.W.8 has filed a complaint stating that the accused has committed the offence under Section 8(c) punishable under Section 21(c) of the NDPS Act. The other accused viz., Jesudhasan, Guru and Manikandan inspite of search are not traceable and therefore, they are treated as absconding accused. The complaint lodged on the file of Court of Special Court of NDPS Cases on 15.02.2011 is marked as Ex. P.21. The Scientific Officer, who subsequently examined the sample was examined as additional witness P.W.7.