Karuppiah @ Miya Miya, Lakkanan and Dhanabalan vs State

A. Selvam, J.—Challenge in this criminal appeal is to the conviction and sentence passed in Calendar Case No. 221 of 1999 by the Special

District and Sessions Court (Narcotic Drugs and Psychotropic Substances Court) Madurai.

The epitome of the prosecution case is that on 29.04.1998 at about 07.30 a.m. on Tiruchirapalli-Madurai Bypass Road (National Highway No.

47) at Dindigul near Saravana Real Estate, the accused 2 & 3 namely Lakkanam and Dhanabalan have smuggled 98 kilograms of Ganja and 105

kilograms of Ganja illegally without having license, through the ambassador car bearing Registration No. MSM-5251 and the same has been

driven by the first accused viz., Karuppiah @ Miya Miya. Under the said circumstances, the accused 2 & 3 are said to have committed offences

under Sections 8(c) read with 20(b)(1) of Narcotic Drugs and Psychotropic Substances Act, 1985 and the first accused is said to have committed

offences under Sections 8(c) read with 20(b)(1) read with 29 of the said Act.

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

The trial Court has framed necessary charges against the accused under the said Sections and the same have been read over and explained to

them. The accused have made a candid denial and claimed to be tried.

On the side of the prosecution, PWs.1 to 8 have been examined and Exs.P1 to P15 and MOs.1 to 13 have been marked.

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

evidence against them, they denied their complicity in the crimes. However, no oral and documentary evidence have been let in on the side of the

accused.

The trial Court, after contemplating the evidence available on record, has found the accused 2 & 3 guilty under Sections 8(c) read with 20(b)(1)

of Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced them to undergo five years rigorous imprisonment and also imposed a

fine of Rs. 25,000/- upon each of them with default clause. The first accused has also been found guilty under Sections 8(c) read with 20(b)(1)

read with 29 of the said Act and sentenced to undergo five years rigorous imprisonment and also imposed a fine of Rs. 25,000/- 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

appellants.

Before contemplating the arguments advanced by the learned senior counsel appearing for the appellants/accused, a primordial duty is cast upon

the Court to find out as to whether the prosecution has established the guilt of the accused under the Sections mentioned supra.

The specific case of the prosecution is that on 29.04.1998 at about 7.30 a.m. on Tiruchirapalli-Madurai Bypass Road near Saravana Real

Estate, the accused 2 & 3 viz., Lakkanam and Dhanabalan have smuggled 98 and 105 kilograms of Ganja through the ambassador car bearing

Registration No. MSM-5251 and the same has been driven by the first accused viz., Karuppiah @ Miya Miya.

The prosecution has set the law in motion only on the basis of Ex.P11. In Ex.P11, it has been stated that the Head Constable, attached to NIB

CID, Dindigul has produced an informant and he has informed that through the ambassador car bearing Registration No. MSM-5251, Ganja is

being smuggled from Orissa by some persons belonging to Kanavoipatti.

After recording Ex.P11, the Sub- Inspector of Police, NIB CID, Dindigul has made all arrangements so as to nab the accused and accordingly

the service of PW1 viz., Jeyavudeen has been utilished. PW1 has served as Village Administrative Officer in Seelappadi Village at the time of

occurrence and he deposed in his evidence that on 29.04.1998 at about 8, 8.30 a.m. the police attached to NIB CID, Dindigul told him that they

received an information about smuggling of contraband and asked him to act as a witness. He conceded the request made by the Police. On the

same day, he and the concerned police have gone to Tiruchirapalli-Madurai Bypass Road and at that time the police have intercepted an

ambassador car bearing Registration No. MSM-5251 and subsequently the same has been inspected and the first accused has driven the same.

The Police have seized the sacks which have been placed in the said car and subsequently taken samples in it and he has put his signature in seizure

mahazar which has been marked as Ex.P1 and the signatures which have been marked as Exs.P2 & P3 are his signatures. The packets of samples

have been marked as MOs.1 to 6.

The Head Constable by name Balasubramanian has been examined as PW4. He would say in his evidence that on 28.04.1998 during evening

hours he received a secret information from an informant to the effect that some persons belonging to Kanavoipatti are smuggling Ganja from

Orissa through an ambassador car bearing Registration No. MSM-5251. Further he has stated in his evidence that he produced the concerned

informant to the Sub-Inspector of Police.

The Sub-Inspector of Police has been examined as PW6. He has stated in his evidence that on 28.04.1998 he served as Sub-Inspector of

Police in NIB CID, Dindigul and on the same day, at about 9.00 p.m. the Head Constable viz., Balasubramanian has produced an informant and

he told that on 29.04.1998 at about 7.30 a.m. some persons belonging to Kanavoipatti are going to smuggle Ganja from Orissa through an

ambassador car bearing Registration No. MSM-5251 and the said information has been recorded and the same has been sent to the Inspector for

further action and the Inspector has given necessary instruction and accordingly on 29.04.1998 he, PW1, PW4 and others have gone to the place

of occurrence and on the same day, at about 7.30 a.m. he intercepted the ambassador car bearing Registration No. MSM-5251 and ultimately

found that the accused 2 & 3 are in possession of Ganja without having license and the first accused has driven the said vehicle. The accused have

also given been options to the effect that if they are willing, they will be checked in the presence of a Gazatted Officer or nearby Magistrate. But

the accused have asked him to inspect and the consent letter given by the accused has been marked as Ex.P12. Further he has stated in his

evidence that he seized the sacks which contained Ganja and taken samples and the accused have given separate confessions and subsequently he

registered a case against all the accused in Crime Nos. 46 to 49 of 1998 under Sections 8(c) read with 20(b)(1) of the Narcotic Drugs and

Psychotropic Substances Act, 1985 and further investigation has been done by the Inspector of Police.

The concerned Inspector of Police have been examined as PWs.7 & 8 and both of them have stated that they have done investigation and

after completing the same, laid a final report.

From the evidence of PWs.1, 4 & 6 coupled with exhibits referred to supra, the Court can easily discern that on the date of occurrence, the

accused 2 & 3 are found in possession of Ganja without having license and the first accused has driven the ambassador car bearing Registration

No. MSM-5251 through which the alleged contraband has been smuggled.

It is seen from the records that the samples, which have been taken in the place of occurrence, have been sent to PW5, Chemical Analysist

and she has clearly stated in her evidence that she examined the samples and ultimately found that samples are ''cannabenoids'' otherwise called

Ganja. Therefore, form the evidence of the witnesses referred to supra as well as relevant documents mentioned earlier, the Court can easily come

to a conclusion that the accused 2 & 3 have committed offences under Sections 8(c) read with 20(b)(1) of the Narcotic Drugs and Psychotropic

Substances Act, 1985 and the first accused has committed offences under Sections 8(c) read with 20(b)(1) read with 29 of the said Act.

The learned Counsel appearing for the appellants/accused has made various inert exercises so as to supplant the conviction and sentence

passed by the trial Court.

The brunt is that as per the specific case of the prosecution, the head constable by name Balasubramanian, who has been examined as PW4,

received information from an informant on 28.04.1998 and as per Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985, the

information alleged to have been received by PW4 has to be recorded, but in the instant case, no such information has been recorded by PW4 and

therefore, the entire case of the prosecution is liable to be rejected.

In support of the above contention, the following decisions have been accited on the side of the appellants/accused;

a) In State of Punjab Vs. Balbir Singh, the Honourable Apex Court has held that the provision of Section 42 of the said Act, is mandatory and

non-compliance of the same would affect the case of the prosecution.

b) In Directorate of Revenue and Another Vs. Mohammed Nisar Holia, the Honourable Apex Court has held that statutory requirement of Section

42 of the said Act have not been complied with and therefore, judgment of High Court does not suffer from any legal infirmities.

c) In CDJ 2002 Sc 312 (Beckodan Abdul Rahiman v. State of Kerala) the Honourable Apex Court has held that non-compliance of the

provisions of Sections 42 and 50 of the said Act would render the investigation illegal.

From the conjoint reading of the decisions referred to earlier, it is pellucid that the provision of Section 42 of the Narcotic Drugs and

Psychotropic Substances Act, 1985, should be strictly complied with.

Now the Court has to analyse the circumstances prevailing in the present case. As rightly pointed out on the side of the appellants/accused,

PW4, Head Constable, has received information from the concerned informant on 28.04.1998 at about 09.00 p.m. and subsequently the said

informant has been taken to PW6, Sub-Inspector of Police, NIB CID and he recorded the information given by the informant and the same has

been marked as Ex.P11.

For better appreciation, it would be more useful to look into the provision of Section 42 of the said Act and the same reads as follows;

Power of entry, search, seizure and arrest without warrant or authorisation- (1) Any such officer (being an officer superior in rank to a peon, sepoy

or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government

including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such

officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a

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 down in writing that any narcotic drug, or psychotropic substance, or controlled

substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish

evidence of the commissioner of such offence or any illegally acquired property or any document or other article which may furnish evidence of

holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any

building, conveyance or enclosed place, may between sunrise and sunset,:

a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has

reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence

of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure

or freezing or forfeiture under Chapter V-A of this Act; and

(d) detain and search, and if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under

this Act;

Provided that if such officer 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 any offender, he may enter and search such building, conveyance or enclosed place at any

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

(2) Where an officer takes down any information in writing under Sub-section (1) or records grounds for his belief under the proviso thereto, he

shall without seventy two hours send a copy thereof to his immediate official superior.

As per Section 42(1) of the said Act, any officer being an officer, superior in rank to a peon, sepoy or constable, is empowered to receive

such information and to take down in writing.

As per Section 42(2) of the said Act, if any information has been taken down in writing under Sub-section (1), a copy of the same should be

communicated to immediate official superior within 72 hours.

In the instant case, as stated earlier, PW4 is a constable and his specific evidence is that an informant has met him on 28.04.1998 and stated

that some persons belonging to Kanavoipatti are going to smuggle Ganja from Orissa through an ambassador car bearing Registration No. MSM-

5251. As per Section 42(1) of the said Act, any officer superior in rank to a peon or sepoy or constable is empowered to receive such information

and take down in writing. Since PW4 is a head constable, he is not at all empowered to take down the information alleged to have been given by

the concerned informant in writing.

The specific evidence of PW4 is that the concerned informant has been taken to PW6, Sub-Inspector and he enquired him and the concerned

informant has given an information to the effect that on 29.04.1998 the persons belonging to Kanavoipatti are going to smuggle Ganja from Orissa

through an ambassador car bearing Registration No. MSM-5251. The said information has been recorded by PW6 and the same has been

marked as Ex.P11. Therefore, it is quite clear that in the instant case, the provision of Section 42 of the said Act has been duly complied with by

PW6. Since the provision of Section 42 of the said Act has been duly complied with by PW6, it is needless to say that the first attack made on the

side of the appellants/accused is of no use.

The second limb of argument is that as per the evidence of PW6, all the sacks, which have been seized by him, have been separately

numbered as Section 1 to Section 6 and PW6 has taken two samples from each sacks, but Mos.1 to 6 are alone marked and no explanation has

been given on the side of the prosecution with regard to other samples. On that score also, the entire case of the prosecution is liable to be

rejected.

As rightly pointed out by the learned Counsel appearing for the appellants/accused, PW6 the concerned Sub-Inspector has clearly stated in his

evidence that he has seized six sacks and the same have been numbered as Section 1 to Section 6 and further he has stated in his evidence that he

has taken two samples from each sack. But Mos. 1 to 6 are alone marked in the present case.

At this juncture, it would be more useful to look into the evidence of PW5, chemical analysist. She has stated in her evidence that with regard

to Crime No. 47 of 1998, she has received three packets of samples and with regard to Crime No. 48 of 1998, she has received three packets of

samples and all the packets examined and found that the same contained ''cannabenoids'' otherwise called Ganja. Of-course it is true that the

remaining sample packets have not been marked on the side of the prosecution. PW1, Village Administrative Officer has given clear evidence to

the effect that in the place of occurrence, PW6 has taken samples from all the sacks which have been seized from the accused. The prosecution

ought to have marked the sample packets which have not been sent to chemical examination. But, as stated earlier, the prosecution has failed to

mark the same. It is really a mistake on the part of the prosecution. Simply because, remaining sample packets which have not been subjected to

chemical examination are not marked in the present case, the Court cannot come to a conclusion that the entire case of the prosecution is a false

one. It is not an adulation to say that in the instant case, sufficient evidence are available so as to prove the alleged guilt of the accused mentioned in

the charges and therefore, the second limb of argument advanced on the side of the appellants/accused is also not having merit.

The third attack made on the side of the appellants/accused is that the specific contention of the prosecution is that the accused 2 & 3 are in

possession of Ganja in question and the first accused has no connection with the contraband he has simply driven the ambassador car bearing

Registration No. MSM-5251 and unless the alleged involvement of the first accused in the commission of offence is proved by the prosecution, he

cannot be punished by invoking Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

In support of the said contention, the decision reported in 2002 Scc 513 (Abdul Rashid Ibrahim Mansuri v. State of Gujarat) is relied upon,

wherein the Honourable Apex Court has held in Paragraph 23 as follows;

In this case non-recording of the vital information collected by the police at the first instance can be counted as a circumstance in favour of the

appellant. Next is that even the information which PW2 recollected from memory is capable of helping the accused because it indicates that the

real culprits would have utilised the services of an autorickshaw driver to transport the gunny bags and it is not necessary that the autorickshaw

driver should have been told in advance that the gunny bags contained such offensive substance. The possibility is just the other way round that the

said culprits would not have disclosed that information to the autorickshaw driver unless it is shown that he had entered into a criminal conspiracy

with the other main culprits to transport the contraband. The prosecution did not adduce any evidence to show any such connivance between the

appellant and the real culprits. There is nothing even to suggest that those culprits and the appellant were close to each other, or even known to

each other earlier. Yet another circumstance discernible from the evidence in this case is that the police had actually arrayed two other persons as

the real culprits and made all endeavour to arrest them, but they absconded themselves and escaped from the reach of the police.

In the case referred to supra an autorickshaw driver has also been shown as one of the accused in connection with contraband. The

Honourable Apex Court has come to the conclusion that the alleged connivance between the said autorickshaw driver and real culprits has not

been established on the side of the prosecution. Under the said circumstances, the said autorickshaw driver has been exculpated. Further the

Honourable Apex Court has found that the said autorickshaw driver and real culprits are not belonging to the same place.

In the present case, it is seen from the records that all the accused are the residents of one and the same village by name Kanavoipatti. The

contraband have been smuggled from Orissa through the ambassador car bearing Registration No. MSM-5251. The specific case of the

prosecution is that the accused 2 & 3 are owners of the contrabands and the first accused has driven the said ambassador car. Unless a

conspiracy has been hatched between the first accused and the accused 2 & 3, definitely, the first accused would not have driven the vehicle which

involved in the present case. As stated earlier, all the accused are the residents of Kanavoipatti Village. Further it is an avowed principle of law that

in order to establish the alleged conspiracy in a criminal case, no direct evidence can be secured. As stated in many places, all the accused are the

residents of Kanavoipatti Village and therefore, all the accused might have conspired together so as to smuggle the contraband in question from

Orissa. Under the said circumstances, the last limb of argument advanced by the learned Counsel appearing for the appellants/accused also goes

out without merit.

It has already been discussed in detail that the prosecution has clearly established the guilt of the accused 2 & 3 under Sections 8(1) read with

2(b)(1) of the said Act and likewise, the prosecution has established the guilt of the first accused u/s 8(c) read with 20(b)(1) read with 29 of the

said Act. The trial Court, after considering all the evidence available on record has clearly found the accused guilt under the said Sections. In view

of the foregoing elucidation of both the factual and legal aspects, this Court has not found any attractive ground so as to make interference with the

well merited judgment passed by the trial Court and altogether the present criminal appeal deserves dismissal.

In fine, this criminal appeal deserves dismissal and accordingly is dismissed. The conviction and sentence passed in Calendar Case No. 221 of

1999 by the Special District and Sessions Court, (Narcotic Drugs and Psychotropic Substances Court), Madurai are confirmed. If the

appellants/accused are not in duress, the trial Court is directed to take suitable steps to incarcerate them in prison so as to serve out the remaining

period of sentence.