SHANMUGAM Vs. INSPECTOR OF POLICE

JUDGEMENT

(1.) THE sole accused in C.C.No.11 of 1995 on the file of the Additional Special Judge for NDPS Act, Chennai who stood charged and found guilty as per the charge for an offence punishable under Section 8(c) read with Section 18 of the Narcotic Drugs and Psychotropic substances Act, 1985 and was awarded a sentence of rigorous imprisonment of 10 years and a fine of Rs.1,00,000/- with a default sentence of one year rigorous imprisonment by the said judge, vide judgment dated 03.05.2002, has come forward with this appeal challenging the conviction recorded against him and the sentence imposed on him.

(2.) THE case of the prosecution, in brief, can be stated as follows:-a) P.W.4 - Thiru.Packiaraj, the then Sub-inspector of police, NIB-CID, Chennai received a secret information from an informant from Choolaimedu, Chennai at 7.30 p.m on 02.07.1994 to the effect that a person named Shanmugam, residing at No.59, 14th West cross street, Mahakavi Bharathiyar Nagar, Chennai (the appellant/accused) was proceeding towards his residence after purchasing 2 Kgm of Opium from an unidentified person at Vadapalani, Chennai. b) Immediately thereafter P.W.4 prepared Ex.P5 - Intimation and sent it to the Inspector of Police, NIB-CID, Chennai and proceeded towards 14th West cross street, Mahakavi Bharathiyar Nagar, Chennai along with his police party and was waiting there for the arrival of the accused. He had also taken along with him an independent witness, namely P.W.2 to the said place to be a witness for arrest, if any and for attesting the documents that might be prepared. While, P.W.4 was waiting at the 14th West cross street, Mahakavi Bharathiyar Nagar, Chennai along with the police party and the above said witness, at 9.00 p.m on the said date, namely 02.07.2004, the accused Shanmugam came there carrying a gunny bag in his hand inscribed with letters in Hindi language in green ink on either side. P.W.4 and the police party which included P.W.2 - Subbiah, the then Head constable, stopped the accused and informed him that they wanted to effect a search for Narcotic drugs and that if he wished he would be taken to the place of a Gazetted officer or a Magistrate in whose presence the search would be made and that he had as he had a right to make such a demand. However, the accused informed the police party that search could be made at the place of occurrence itself and there was no need to take him to a Gazetted officer or a Magistrate. Consequently, P.W.4 got the gunny bag and inspected the same and he found two parcels bundled in an English newspaper using a thread. On examination of those packets in the presence of P.W.2 and 3, P.W.4 found them to contain opium in conformity with the secret information received by him. He weighed it with the help of instruments he had taken along with him and found the weight of opium contained in each packet to be 1 Kgm. At the rate of two samples from each one of the packets, totally four samples were drawn, bundled and sealed separately in the presence of P.W.2 and 3 under Ex.P3 - Mahazar. P.W.2 and 3 attested the said Mahazar. THE samples were drawn by ensuring each sample weighed 10 grams. c) THEreafter, P.W.4 came back to NIB police station at about 10.30 p.m, prepared Ex.P6 - First Information Report and registered a case against the appellant/accused for an offence punishable under Section 8(c) read with Section 18 of the Narcotic Drugs and Psychotropic substances Act, 1985 in crime No.35 of 1994 in the said police station. Pursuant to the registration of the said case he prepared a Special Report - Ex.P7 and submitted the same along with the First Information Report to P.W.5 - Jayaraman, the then Inspector of Police, NIB-CID, Chennai-600 017 for investigation.d) P.W.5 during the course of examination submitted the samples to the court along with a requisition - Ex.P8 to send two samples to the Forensic Lab, Mylapore for examination and to retain the other two samples in the court. Two of the samples were sent to the Forensic Laboratory and were examined by P.W.1, the then Scientific Assistant-Grade I attached to the Tamil Nadu Forensic Science Department, Narcotic Drugs Wing. She found each one of the samples contained Morphine @ 2.23% and Opium at 22.3% and Mechonic acid. As a result of the chemical examination, she issued the Chemical examination Report - Ex.P2, counter signed by the Scientific Officer and the Assistant Director, certifying the same to be Opium, a Narcotic drug. THE investigating officer, namely P.W.5, during the course of investigation recorded the statements of witnesses, collected necessary documents, completed the investigation and submitted a final report against the appellant/accused alleging commission of an offence punishable under Section 8(c) read with Section 18 of the Narcotic Drugs and Psychotropic substances Act, 1985.e) THE trial court took it on file as C.C.No.11 of 1995 and framed necessary charge under Section 8(c) read with Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Pursuant to the denial of charge and plea of innocence made by the appellant/accused, the case was tried and in the trial, in order to substantiate the charge made against the appellant/accused, P.W.1 to 5 were examined and Ex.P1 to P8 were marked. Two samples retained by the court, the remaining contraband and the returned covers after chemical examination were produced as M.O.1 to 6. when the accused was examined under Section 313(i)(b) Cr.P.C regarding the incriminating part of the evidence adduced on the side of the prosecution, he denied them as false. Though he had stated that he had witnesses to be examined on his side, thereafter he did not examine anybody as witness on his side. No document was marked and no material object was produced on his behalf.

(3.) ADVANCING arguments on behalf of the appellant, Mr.T.S.Sasikumar, advocate contended that the prosecution had failed to comply with the mandatory provisions of Section 42(1), 50(1) and 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985 which fact was not properly appreciated by the court below that under Section 42(2) of the NDPS Act, only on the authorization given by the authorized officer, the search and seizure could be effected, that too, only between sunrise and sunset that P.W.4 who is said to have received secret information at 7.30 p.m had proceeded towards the place of occurrence without the authorization of P.W.5 and hence the entire exercise made by P.W.4 was against the statute and vitiated that as per Section 51 of the Narcotic Drugs and Psychotropic Substances Act, 1985, a person to be searched had a right to be informed that he could demand the search to be made before a Gazetted officer or a Magistrate that though there were parole evidence to the effect that he was informed of such right, the same was not incorporated either in the First Information Report or the statement of P.W.4 recorded under Section 161 Cr.P.C that failure to give such an option under Section 50(1) to the accused in writing, would vitiate the entire proceedings and that hence the prosecution case should have been rejected. It is the further contention of the learned counsel for the appellant that the failure on the part of the independent witness examined as P.W.3 to support the prosecution case shall falsify the case of the prosecution that the conviction based on the evidence of other witnesses examined on the side of the prosecution, who were very much interested in implicating the accused was defective, in the light of the fact that though the place of occurrence is said to be in a residential area, none of the persons residing adjacent to the place of occurrence had been cited as witness and that hence the judgment of the trial court and order of sentence should be set aside holding them to be defective and infirm.