Chellammal vs State by Inspector of Police

A. Selvam, J.—Challenge in this criminal appeal is to the conviction and sentence passed in C.C. No. 1500/2001 by the Special District and

Sessions Judge for E.C. Act and N.D.P.S. Act Cases, Madurai.

The case of the prosecution is that on 15.06.2001 at about 22 hours at Annathai Chettymadam in the house of the accused, she has been found

in possession of 175 kilograms of ganja and thereby she has committed offence u/s 8(c) r/w 20(b)(i) of the Narcotics Drugs and Psychotropic

Substances Act, 1985.

After occurrence, the investigating agency has done investigation and after completing the same laid a final report on the file of the trial Court and

the same has been taken on file in C.C.No. 1500 of 2001.

The trial Court, on the basis of the alleged culpability of the accused and other connected documents, has framed necessary charge against the

accused and the same has been read over and explained to her and she denied the charge and claimed to be tried.

On the side of the prosecution, P.Ws.1 to 6 have been examined and Exs.P.1 to P.10 and M.Os.1 to 28 have been marked.

When the accused has been questioned u/s 313 of the Criminal Procedure Code as respects the incriminating circumstances appearing in

evidence against her, she denied her complicity in the crime. However, no oral and documentary evidence has been adduced on the side of the

accused.

The trial Court, after evaluating the evidence available on record has found the accused guilty u/s 8(c) r/w 20(b)(i) of the Narcotics Drugs and

Psychotropic Substances Act, 1985 and sentenced him to undergo 1 year rigorous imprisonment and also imposed a fine of Rs. 50,000/- with

default clause. Against the conviction and sentence passed by the trial Court, the present criminal appeal has been filed at the instance of the

accused as appellant.

The learned Counsel appearing for the appellant/accused has raised a short point to the effect that the specific case of the prosecution is that the

house of the accused has been searched on 15.06.2001 at about 10.00 p.m and the evidence of P.W.4 (Inspector) is that before conducting

search, necessary permission has been obtained from the concerned Magistrate. But the same has not been marked and therefore the proviso

Clause of Section 42 of the Narcotics Drugs and Psychotropic Substances Act, 1985 has been violated. Under the said circumstances, the entire

proceedings are vitiated and therefore the conviction and sentence passed by the trial Court are liable to be set aside.

In support of his contention, he has drawn the attention of the Court to a decision reported in 2003 Scc (Cri) 1194, (Chhunna alias Mehtab v.

State of Madya Pradesh), wherein, the Honourable Apex Court has dealt with the similar point and ultimately held that non-compliance with the

provisions of the proviso to Section 42 of the Narcotics Drugs and Psychotropic Substances Act, 1985 Act would render the entire proceedings

liable to be vitiated.

In the instant case, as rightly pointed out by the learned Counsel appearing for the appellant/accused, P.W.4-the concerned Inspector of Police

has categorically stated in his evidence that before conducting search of the house of the accused, necessary permission has been obtained from

the concerned Magistrate. But to utter dismay, no such permission has been forthcoming on the side of the prosecution.

The proviso Clause of Section 42 of the Narcotics Drugs and Psychotropic Substances Act, 1985 reads as follows:

Provided that if such officer after has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for

the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any

time between sunset and sunrise after recording the ground of his belief.

From the close reading of the said proviso clause, it is made clear that if any search has been made between sunset and sunrise, the concerned

officer should record the sufficient grounds for such search.

In the instant case, as noted down earlier, the specific evidence of P.W.4 is that he obtained necessary permission from the concerned Judicial

Magistrate. But no such permission has been marked on the side of the prosecution and further the alleged search has been made at 10.00 p.m

and that too after sunset. Therefore, it is needless to say that in the instant case, the mandatory provision mentioned in the proviso Clause of

Section 42 of the NDPS Act, 1985 has been clearly violated and as per the dictum given by the Honourable Apex Court in the decision reported

in 2003 Scc (Cri) 1194, (Chhunna alias Mehtab v. State of Madya Pradesh), the entire proceedings made in the present case are vitiated and

consequently the conviction and sentence passed by the trial Court are liable to be set aside.

In fine, this criminal appeal is allowed and the conviction and sentence passed in C.C. No. 1500 of 2001 by the Special District and Sessions

Judge (For EC and NDPS Act Cases), Madurai are set aside and the appellant/accused is acquitted of the charge framed against her and bail

bond, if any executed by her shall stand cancelled and fine amount, paid by the accused is ordered to be refunded forthwith.