Karnam Thakka Babu vs State

T. Sudanthiram, J.—The appellant herein is the accused in C.C. No. 42 of 2010 on the file of the learned Special Judge, II Additional

Special Court under NDPS Act, Chennai and he was convicted for the offence u/s 8(c) read with 20(b)(ii)(c) of NDPS Act, 1985 as amended by

Act 9 of 2001, sentenced to undergo 10 years rigorous imprisonment and to pay a fine of Rs. 1,00,000/-, in default, to undergo further period of

three months rigorous imprisonment. Challenging the said conviction and sentence, the appellant has preferred this criminal appeal. The case of the

prosecution is that on 19.05.2010 at about 4.00 pm, PW2, the Women Sub Inspector of Police received an information through telephone about

the illicit possession of ganja by the accused and proceeded along with her party to the occurrence spot at Nathella Sampath Kalyana Mandapam,

Jawaharlal Nehru Salai, 100 feet Road, Koyambedu, Chennai. The appellant/accused, who was standing there, was identified by the informant

who was standing on the occurrence spot by then. Since the appellant/accused knows only Telugu, PW5, head Constable was asked to interpret

the version of the accused and accordingly, PW5 translated the conversion in Tamil. PW2 enquired the appellant/accused and explained him about

the provisions of Section 50(i) of NDPS Act, but he declined and wanted to be searched by PW2 herself. Since no public was ready to stand as a

witness, PW3, Krishnamoorthy, Sub-Inspector of Police and PW4, Kumar, Head Constable have witnessed the seizure. In the presence of the

witness, the appellant/accused handed over two big plastic bags and on opening the same, it was found to contain 15 kilograms of ganja. The

contraband was seized by PW2 in the presence of Pws 3 and 4. PW2 took two samples of 50 grams from each bag, kept it in separate brown

covers, tied it with thread and sealed. The samples were marked as S1 & S2 and S3 & S4, Thereafter, the appellant/accused was taken to the

police station along with the contraband. On reaching the Police station, PW2 registered a case in Crime No. 800 of 2010 against the

appellant/accused for the offence punishable u/s 8(c) read with 20(b)(ii)(c) of NDPS Act. Thereafter, PW6, the Inspector of Police, took up

investigation and recorded the statement of witnesses. PW6 sent the seized properties to the Court for custody. The samples were sent for

chemical analysis. PW1, Deputy Director of Forensic Assistant, analysed the samples and gave his report, Ex. P2 stating that the samples sent

were found to be ganja. PW6 on completion of investigation, laid final report against the appellant/accused for the offences as mentioned above.

During the course of trial, on behalf of prosecution, Pws 1 to 6 were examined. Exs. P1 to 10 were marked, besides MO1 to MO6 have been

marked. On behalf of the appellant/accused, neither any witness was examined nor document was marked. When the appellant/accused was

questioned u/s 313 of Cr. P.C. he denied his complicity. The trial court, after analysing the evidence on record convicted and sentenced the

appellant/accused as narrated above.

The learned counsel for the appellant submits that the case has been foisted against the appellant/accused. The prosecution has not examined

any independent witness to prove the alleged seizure. In any event, the prosecution has failed to prove the guilt against the appellant/accused

beyond reasonable doubt and therefore he prayed for allowing this appeal.

Per contra, the learned Additional Public Prosecutor appearing for the respondent submits that PW2 called some of the general public in the

occurrence place to stand as witness to the seizure of the contraband, but they refused. On their refusal to stand as witness, PW2 seized the

contraband in the presence of the Police witness Pws 3 and 4 and there is no illegality by doing so. Further, the quantity of contraband seized from

the appellant/accused is a commercial quantity.

This Court heard the submissions made by the counsel for both sides and perused the materials placed on record. According to the prosecution,

30 kilograms of ganja was seized from the appellant/accused. PW2, Women Sub-Inspector of Police seized the contraband from the accused

from the occurrence spot. In support of the seizure, prosecution examined PW3 and 4, who have accompanied PW2 to the occurrence spot and

signed as witness in the seizure mahazar. Even according to Pws 2, 3 and 4, the place where the accused was seen is a busy locality, being the

main road where vehicles have been frequently passing through, besides that shops are also located. According to them, though attempt was made

by them to procure an independent witness from the public, they have refused to stand as witness. This part of the evidence by the prosecution is

not acceptable. PW2 has not given the details as to whom she called to stand as witness but refused. It is not the case of PW2 that she took action

against the person who refused to stand as witness as contemplated u/s 100(8) of Cr. P.C. Section 100(8) of Cr. P.C. is extracted hereunder:-

(8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by

an order in writing delivered or tendered to him, shall be demeed to have committed an offence u/s 187 of the Indian Penal Code (45 of 1860).

Though it is not mandatory that seizure should be made by the Police only in the presence of independent witness, wherever it is possible, the

police must secure independent witness in respect of seizure made by them and must let in evidence to gain the confidence of the Court. In this

case, though PW2 had gone to the occurrence spot along with her team, on reaching the occurrence spot, she has not taken any effective steps to

procure independent witness. Even if no independent witness was available and even if the accused has opted to search in the presence of police

witness, PW2 could have taken the accused before a gazzetted officer or Magistrate and seizure could have been made in the presence of such

officer, in the absence of any independent witness. Thus, the manner in which the seizure was made in the present case by the police officials does

not inspire the confidence of this Court and no sufficient evidence is let in by the prosecution. Merely because huge quantity of contraband is

seized, the Court cannot jump to a conclusion that the contraband was seized only in the manner alleged by the prosecution. As the punishment is

more stringent, the standard of proof required also is more. In view of the above said reasons, the Criminal appeal is allowed. The conviction and

sentence imposed by the trial court on the appellant/accused are set aside. The Superintendent of Central Prison, Puzhal, Chennai is directed to

release the appellant/accused forthwith unless his custody is required in connection with any other case. The fine amount, if any paid by the

appellant/accused is directed to be refunded to him. Consequently, connected miscellaneous petition MP No. 1 of 2012 is closed.