Jesudoss vs State

M. Karpagavinayagam, J.—This appeal is directed against the judgment dated 27-11-1987, in S.C. No. 50 of 1987, on the file of the Additional Sessions Judge, Ramanathapuram at Madurai, convicting the appellant for the offence u/s 8-C read with 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as Narcotic Drugs and Psychotropic Substances Act) and sentencing him to undergo R.I. for ten years and also to pay a fine of Rs. 1 lakh.

On behalf of the prosecution 3 witnesses were examined, 7 exhibits were filed and two M. Os. were marked.

The short facts leading to the prosecution are as follows:

P.W.2 Mahalingam is the Superintendent of Customs. On 30-9-1986 night, P.W.2 along with his party was conducting vehicular check up in Madurai-Ramanathapuram Road at about 00:15 hours (midnight). At that time, they saw a bus belonging to Marudhu-Pandiyan Transport Corporation, coming from Ramanathapuram towards Madurai. P.W.2 stopped the bus and conducted search on 25 passengers, who were found in the bus. One of the passengers was the appellant. P.W.3. Pitchai was the Conductor. When the appellant was searched, he was found with an Air bag. On suspicion, P.W.2 got the bag and opened it and found the accused/appellant was carrying heroin and morphine powder weighing about 90 grams in a plastic bag. The contraband was seized from the appellant under Ex.P2 mahazar, attested by P.W.3, the Conductor and also by die driver of the bus. Then, P.W.2 took the appellant to the Customs Office at Madurai, where the appellant gave a voluntary confession Ex.P3, which was also attested by P.W.3 and others. Thereafter die accused was arrested and sent for remand.

P.W.1, Additional Collector of Customs, Madurai, die superior officer of P.W.2 was informed about the arrest and seizure of M. Os.1 and 2 by way of Ex.P5 report. The contraband M.O.1 was weighed in the Customs Office and was found to weigh 90 grams, for which Ex.P4 mahazar was prepared by P.W.2. Then, he sent the contraband M.O.1 for chemical examination by the Chemical Examiner attached to Customs Department at Madras. Ex.P7 is the chemical report, which disclosed that M.O. 1 powder was found to be morphine and heroin. The appellant had no licence or permit to carry the said powder. Then, P.W.2 sent report to P.W.1, the Additional Collector of Customs, Madras. After perusal of the report and documents connected with the case, P.W.1 filed a complaint for the offence u/s 8 C read with 21 of the Narcotic Drugs and Psychotropic Substances Act, since he was empowered to lay the same.

P.W.1 speaks about the perusal of the records and filing of the complaint. P.W.2, the searching officer, who speaks about the search and seizure of M. Os., and sending of the report to senior officer. P.W.3, Pitchai, the mahazar witness was treated as hostile, as he said that at the time of seizure, he signed only in a blank paper.

After the evidence was over, the appellant was questioned u/s 313, Code of Criminal Procedure, to explain the incriminating circumstances appearing against him in evidence brought on record, and the appellant denied his complicity in the crime and stated that he was not aware of the contents of M.O.1 packet which was handed over to him by an unknown person at Mandapam camp to be carried to and delivered to a person at Trichy. However, no defence witness was examined.

Mr. E.J. Ayyappan, learned Counsel for the appellant, took me through the entire evidence and contended that mandatory procedures have not been followed in this case and that P.W.2 the Superintendent of Customs, instead of sending the sample for analysis through Court, has sent directly to the chemical examiner attached to the Customs Office, at Madras and u/s 52(3) of the Narcotic Drugs and Psychotropic Substances Act, the officer who seized the articles shall forward the same without unnecessary delay to (a) the officer-in-charge of the nearest police station, or (b) the officer empowered under S. 53, and u/s 52(4), the authority to whom any person or article is forwarded under Sub-section (2) or Sub-section (3) shall, with all convenient despatch, take such measures as may be necessary for the disposal according to law of such person or article. He vehemently contended that these procedures have not been followed in this case and as such the non-compliance of these procedures would entail the benefit to the appellant in the form of acquittal.

I have gone through the entire records, the evidence adduced by the prosecution witnesses and the judgment of the Court below. P.W.2 is the Superintendent of Customs and the Head of the Preventive Section at Madurai. On 30-9-1986 at about 00:15 hours, midnight he stopped the bus, which was coming from Ramanathapuram to Madurai and searched the passengers. On suspicion, when one of the passengers, the appellant was searched, he was found to be in possession of an air bag. When it was opened, P.W.2 found therein a plastic bag, containing contraband of heroin and morphine powder, approximately weighing about 90 grams. Thereafter, the appellant was taken to Customs Office at Madurai. After seizure, the appellant himself gave a confessional statement, (Ex.P3) to P.W.2, in which he admitted having been found in possession of contraband. Subsequently, it was weighed and found that the weight was 90 grams, for which Ex.P4 mahazar was prepared. After the arrest of the accused he was sent for remand. P.W.2 sent Ex.P5 report to his superior officer, P.W.1. Besides this, he also sent the sample of one packet to the Chemical Examiner attached to the Customs Office, Madras, along with Ex.P6 requisition. Ex.P7 is the chemical analysis report, which would disclose that M.O.1 powder was found to be morphine and heroin. According to P.W.2, he is empowered to search and seize the contraband connected with these offences under Act 61 of 1985.

P.W.2 was cross-examined at length, but nothing has been elicited in the course of his cross-examination to discredit his trustworthiness. The fact that P.W.3, mahazar witness was treated as hostile as he deposed in his chief examination that he had signed only in white paper at the time of seizure will not affect the trustworthiness of the testimony of P.W.2.

Learned Counsel for the appellant contended, the u/s 52(3) and (4) of the Narcotic Drugs and Psychotropic Substances Act, the searching officer should send the arrested person and articles seized without unnecessary delay either to the officer-in-charge of the nearest police station or to the officer empowered u/s 53 of the Act. This question does not arise in this case, because, P.W.2 himself says in his evidence that he is empowered under Act 61 of 1985, to arrest and seize the material objects.

Learned counsel also contended that u/s 52(4) of the Narcotic Drugs and Psychotropic Substances Act, the officer concerned shall take such measures as may be necessary for the disposal according to law of such person or article and by virtue of this section, the article/contraband seized must have been despatched for the chemical analysis through Court. I am not in agreement with such submission, because Section 52(3) of the Narcotic Drugs and Psychotropic Substances Act, does not say so.

The evidence of P.W.2 is so clear to the effect, that he is competent to detect these offences, arrest the accused and seize the contraband articles. There is no challenge about this in the course of his cross-examination by the appellant. So, I am not able to see anything to hold that the procedures as contemplated in Section 52(3) of the Narcotic Drugs and Psychotropic Substances Act, have not been complied with.

Time and again, this Court as well as the Apex Court have held that even though the mahazar witness turned hostile, the evidence relating to search and seizure could be relied upon on the basis of evidence of searching officer, if his evidence is found to be trustworthy and reliable. On the basis of these reasonings, the trial Court also has come to the conclusion that the offence u/s 8-C r/w 21 of the Narcotic Drugs and Psychotropic Substances Act, has been proved against the appellant beyond reasonable doubt. As such, I do not find any illegality or infirmity in the judgment of the trial Court, in convicting and sentencing the appellant u/s 8-C r/w 21 of the Narcotic Drugs and Psychotropic Substances Act. The sentence awarded also, in my opinion, is not excessive, but an adequate one.

I do not see any merit in this appeal and the same is liable to, be dismissed. Accordingly the appeal is dismissed.