K. Leela vs State

Jayarama Chouta, J.—The appellant, who has been tried for the offence punishable u/s 8(c) of the Narcotic Drugs and Psychotropic

Substances Act, 1985 read with Section 21 of the said Act, Under Sections 8(c) r/w Sections 28 & 23 and Rule 53 of the said Act, 1915, and u/s

13 of the Import and Export Control Order, 1962 and Section 135(1)(A)(ii) of the said Act and convicted for the offences u/s 8(c) read with

Section 21 and Section 8(c) read with Section 23 and 28 and read with Rule 53 of the Act and sentenced to undergo rigorous imprisonment for

ten years under each section and to pay a total fine of Rs. One Lakh, in default to undergo rigorous imprisonment for a period of three years has

filed this criminal appeal.

The necessary facts for the purpose of disposal of this criminal appeal are as follows :-

On 30-9-1987 morning on previous information, the Officers of the Customs, Circle of Rameswaram intercepted the accused while she was

proceeding towards Rameswaram Port with a suitcase. When P.W. 1 questioned her whether she was in a possession of contraband, the accused

replied in the negative. At that time, the accused was carrying a bag and a suit case. P.W. 1 summoned an independent witness P.W. 4 and one

Sukumar interrogated her. Then the accused told that she is a native of Ceylon and she is returning to ceylon and she has not in a position to

smuggle goods or narcotics drugs. Thereafter P.W. 1 took the accused to the baggage hall and asked P.W. 3 Thirumathi Andichi a sweeper of the

Customs Department to cause a personal search of the accused. P.W. 3 has taken the accused to a separate room and searched her. P.W. 3

found a polythene packet of 1 foot length and 3 inches breadth tied to her waist and a cash of Rs. 1,700/- and the same was produced by her to

P.W. 1 and his party. On opening the polythene packet, it was found to contain a brown powder which was suspected to contain Heroin. On

opening the suit case and the bag of the accused, P.W. 1 found, that, there were Indian Textiles worth about Rs. 2,000/- then P.W. 1 summoned

P.W. 6 Thiru Ganesan Asari an Appraiser approved by the Government to weigh the brown powder contained in the polythene packet which was

marked as M.0. 1. On weighment, the polythene packet with its content was found to have a weight of 155 gms and the net weight of the brown

powder is 149 gms. P.W. 1 asked P.W. 3 to take a sample of 10 gms from the polythene packet and covered it and seated it for the purpose of

chemical examination. The remaining 139 gms brown powder was kept separately and sealed. A mahazar Ex P2 was prepared at the spot which

contain all the above facts and activities. In the said Ex P2 mahazar apart from P.W. 1 and his party the independent witnesses P.W. 4 and one

Sukumar, and P.W. 6 also have signed. The accused was taken to office of P.W. 1, where the accused gave a confession statement which is

marked as Ex P3. Ex P2 and P3 were prepared in the presence of P.W. 1. On the next day on 1-10-1987, P.W. 1 has sent a report to his

superiors about the arrest of the accused and seizure of the articles mentioned in Ex. P2 and the seizure report has been marked as Ex. P4. The

same day the Inspector of Central Excise and Customs has arrested the accused on the orders of P.W. 1 and the arrest memos has been marked

as Ex. P7. The same day P.W. 1 has sent a letter of requisition to the Chief Chemical Examiner Customs House, Madras and has sent the sample

of 10 Gms of brown powder for chemical examination whether the powder has contained Heroin. The said sample sent through P.W. 5 along with

Ex. P5 mahazar, has answered the test for the presence of Heroin as found in the said letter which is marked as Ex. P6. On the basis of the said

materials P.W. 1 lodged a complaint. The accused was produced before the Sessions Court and the Sessions Judge, Ramnad at Madurai had

framed charges which have been mentioned above and read out to the accused in the language known to her, she has pleaded not guilty. During

the course of the trial, the complainant examined P.W. 1 to P.W. 7 and marked Exs. P1 to P9 and marked M.0. 1 and M.0. 2 and they were

produced before the Court. On behalf of the defence no witness was examined but she produced two rough sketches showing the various

important places in Rameswaram as Exs D1 and D2. The Sessions Judge, after concluding the trial by Judgment dated 7-2-1989 in S.C. No. 111

of 1988 had convicted the accused for the offence mentioned above. Further he has acquitted the accused, for the offence punishable u/s 13 of the

Import and Export (Control) Order, 1962 and Section 135(1)(A)(ii) of the Customs Act, 1962. Being aggrieved by the said conviction and

sentence, the present appeal has been filed.

I heard learned Counsel Ms. Anita on behalf of the appellant and learned Counsel Mr. Prakash for Mr. P. Rajamanickam, learned Standing

Counsel appearing on behalf of the respondent.

The learned Counsel for the appellant took me through the evidence of the important witnesses and the judgment of the Sessions Judge and

submitted that at the Court below was not justified in convicting the accused for the offence mentioned above. She submitted that the search made

by P.W. 1 is in contravention of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985. She invited my attention to Section 50

of the said Act, which reads as follows :-

Conditions Under which search of persons shall be conducted. -

(1) When any officer duly authorised u/s 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if

such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in

Section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in

sub-section (1).

(3) The Gazetted Officer or Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith

discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

Her second submission was that the lower Court was not justified in placing reliance on the evidence of witnesses of the Mahazar who are under

the thumb of P.W. 1 who intercepted the accused and hence the lower Court ought to have discarded the evidence.

On these two points, I heard Mr. Prakash, representing the respondent. The learned Counsel submitted that in view of Section 41(2) of the Act

the first contention raised by the learned Counsel for the appellant does not survive. He has invited my attention to Section 41(2) which reads as

follows :-

Any such officer of Gazetted rank of the departments of Central Excise, Customs, Revenue Intelligence or any other department of the Central

Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such

officer of the revenue, drugs control, excise, police or any other department of State Government as is empowered in this behalf by general or

Special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken in

writing that any person has committed an offence punishable under Chapter IV or that any narcotic drug, or psychotropic substance in respect of

which any offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the

commission of such offence has been kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but

superior in rank to a peon, sepoy, or a constable, to arrest such a person or search a building, conveyance or place whether by day or by night or

himself arrest a person or search a building, conveyance or place.

As far as the second contention is concerned, the learned Counsel submitted that P.W. 1 is a Superintendent of Customs whereas P.W. 3 and 4

are the two witnesses for the Mahazar and there is nothing to discard their evidence. He pointed out that the lower Court has placed reliance on

their evidence. Their evidence does not suffer from any legal infirmities. On these grounds, he pointed out that at there is no illegality in the

judgment passed by the Sessions Judge.

After hearing the rival submissions and perusing the evidence and the judgment of the Court below, I am of the opinion that there is no substance

in the contentions of the learned counsel for the appellant. P.W. 1 is a Superintendent of Customs. He was given authority to seize contraband. He

has also produced a notification issued by the Department. The learned Counsel for the respondent also invited my attention to the Notification

No. S.O. 824(E) , dated November 14, 1985 wherein in exercise of the powers conferred by sub-section (2) of Section 41 of the Narcotic Drugs

and Psychotropic Substances Act, 1985 (61 of 1985), the Central Government hereby empowers the Officers, of and above the rank of

Superintendent being Officers of Gazetted rank and working in the executive field, in the Department of Central Excise, Narcotics, Customs and

Revenue Intelligence and in Central Economic Intelligence Bureau to exercise the powers specified in sub-section (2) of that section within the area

of their respective jurisdiction.

In view of the said notification issued by the authority, P.W. 1 who is the Superintendent of Customs has got power to search. Hence there is no

merit in the contention raised by the learned Counsel for the appellant.

As far as the second contention is concerned, I have gone through the evidence of the witnesses, to me, nothing has been elicited from their

evidence why they should falsely implicate the accused, if really, the accused was not in a possession of the Heroin, just because P.W. 3 happens

to be a sweeper in the office, it cannot be said that her evidence cannot be believed. The appellant/accused being a lady since the Act prescribes

that only a lady should search an accused who is lady. P.W. 3 being a lady she searched the person of the accused in his presence. Similarly, he

secured the presence of one Murugan who is the Manager of the lodge. In the cross examination of all these witnesses noting particulars have been

brought on record to discord their evidence. The Sessions Judge had an occasion to see the witnesses and believed them and placed reliance on

their evidence. Under those circumstances, I am not persuaded to discard the evidence of these witnesses. The Sessions Judge has taken into

consideration all these aspects while convicting the accused, I am not persuaded to take a different view from the one taken by the lower Court.

After assessing the entire evidence on record and considering the contentions on either side, I am of the opinion that there is no merit in this

appeal and accordingly this appeal is dismissed.