Mani vs State

V. Bakthavatsalu, J.—The second accused before the trial Court is the Appellant herein. The Respondent police filed the charge sheet

alleging that on 25.8.1987 at about 8.00 am. the first accused was found in possession of 500 grams of heroin and that the second accused was

found in possession of 150 grams of heroin without any permit and that therefore they are liable to be punished for the offence u/s 21 of the

Narcotic Drugs and Psychotropic Substances Act, 1985. The accused denied the offence in the Trial Court. On behalf of the prosecution 5

witnesses were examined and documents 1 to 5 were marked and M. Os.1 to 6 were marked. The case of the prosecution as disclosed from the

above evidences is as follows:

P.W.5 was the Inspector of Police, Law & Order. On 25.8.1987, he and P.W.4, the Sub Inspector of Police on receipt of information

proceeded to Rajapalayam along with P.W.1, the Village Administrative Officer and at that time both the accused were coming in the opposite

direction with bags in their hands. M. Os.1 and 2 are the said bags, and they were intercepted by P.W.5 and when he opened the bag in the

possession of the first accused, it contained 500 grams of heroin powder and similarly when he opened the bag in the possession of the second

accused it contained 150 grams of heroin. Thereupon P.W.5 took 2grams each for sample from each bag. The packets are marked as Mos.3 and

The samples are marked as M. Os.5 and 6. The above contraband was recovered under mahazar Ex.P. 1 and the same is attested by P.W.1.

Thereafter P.W.5 returned to the police station and registered the case in Crime No. 1212 of 1987 u/s 21 of the Narcotic Drugs and Psychotropic

Substances Act. Ex.P.5 is the F.I.R.P.W.5 examined P.W.1 and recorded his statement. On 14.9.1987, P.W.5 sent the sample to the Court for

chemical examination.

P.W.2, the head clerk employed in the Judicial Magistrate Court after receiving the requisition letter from P.W.5 sent the material object to the

chemical examiner. Ex.P.4 is the report of the chemical examiner. P.W.3 the chemical examiner who examined the content has stated in his report

Ex.P.4 that the sample contained herein. After the receipt of chemical report, P.W.5 completed the investigation and filed a charge sheet on

5.2.88.

The incriminating materials in the above evidences were explained to the accused and the accused denied the above evidence. The first accused

has stated that in a case relating to bomb blast he and his son were taken to custody even 2 days before the date of the occurrence. The Trial

Court on consideration of oral and documentary evidence has held that the charge levelled against the accused are proved. When the Court posted

the case for judgment, the first accused did not appear before the Court and thereupon the second accused was heard the question of sentence

and both the accused were convicted and the trial Court has convicted the accused to undergo rigorous imprisonment for 10 years and to pay a

fine of Rs. 1 lakh. Aggrieved on the said judgment of conviction and sentence, the second accused has filed this appeal. The point for

determination is whether the prosecution has established the charge levelled against the accused beyond 19 all reasonable doubt.

The learned Counsel for the Appellant contended that P.W.5 was not competent to investigate the offence relating to the Special Act N.D.P.S.

Act,1985 that P.W.5 himself registered the F.I.R. that he himself took up the investigation and filed the charge sheet and that the procedure

adopted by P.W.5 is contrary to law and several decisions of our High Court and Supreme Court. It is further contended by the learned Counsel

for the Appellant that the prosecution has not followed the procedure laid down u/s 50 and 57 of the Act and that there are also contradictions

with regard to the seizure of the contraband and that therefore the prosecution has not established the case beyond all reasonable doubt.

It is contended that P.W.5 who investigated the case and filed the charge sheet is the Inspector of Police, in the regular police station. The

offence took place on 25.8.1987. C.O. No. 1437 dated 24.9.1987 had notified the Deputy Superintendent of Police of the Police Department as

officers empowered to exercise the powers u/s 41(2) of the Act. The above G.O. came into force after the date of commission of offence in this

case The above G O was also referred to by our High Court in the decision reported in Sivakumar alias Kumar alias Sugumar (1989 L.W.(Crl.)

65).

With regard to the above GO. our High Court has held that the Government Order is subsequent to the commission of the offence but the High

Court has held that the very notification indicates that police officers of a superior cadre are to be entrusted with power u/s 41(2) of the Act.

P.W.5 has stated that he filed the charge sheet on 5.2.88. Therefore it is clear that the investigation was completed only after coming into force ""of

the above Government Order. That being so, as soon as the Government Order came into force, P.W.5 should have entrusted the matter to the

officers specified in the above Government Order on and from ''the date of commencement of the above Act. P.W.5 was not competent to make

investigation or file charge sheet as per the above Government Order. The higher authority viz., the Deputy Superintendent of Police alone is

competent to file charge sheet by completing the remaining part of investigation. For the above reasons, I have no hesitation in holding that the filing

of charge by P.W.5 is not valid in law and it is against the spirit of Government Order referred to above.

It is admitted that P.W.5 himself registered the case and prepared the F.I.R. and investigated the matter and filed the charge sheet. The learned

Counsel for the Appellant contended that the procedure adopted by P.W.5 is illegal. In support of the same he also relies upon the decision

reported in Singaravelu v. State (1985 L.W. (Crl.) 336), The above decision was also referred to before the trial Court. The Trial Court has

observed that in the case reported in the above decision only the investigating officer was examined and that in this case P.W.5 and 4 other

witnesses were examined and that therefore the above decision will not apply to this case. The reason give by the Trial Court cannot be said to be

in accordance with law. The learned Counsel for the Appellant relies upon another decision of Supreme Court on this aspect.

In the decision reported in Bhagwan Singh Vs. The State of Rajasthan, , it has been held by the Supreme Court that investigation by a head

constable who was himself the person to whom bribe was alleged to have been offered and who lodged the F.I.R. as informant or complainant,

was an infirmity which was bound to reflect on the credibility of the prosecution case. In the above case the head constable and also 4 other

witnesses were examined. The Supreme Court has held that the head constable in that case himself is the complainant and that it is difficult to

understand as to how he should undertake investigation. In the above circumstances the fact that 4 other witnesses were examined along with

P.W.5 will not be a ground to give approval to the illegal procedure adopted by P.W.5. For the above reasons, I hold that as P.W.5 himself is the

complainant he should not have investigated the matter and filed charge sheet; further investigation should have been entrusted to the authority

contemplated under the Government Order. In view of the decision reported in Bhagwan Singh Vs. The State of Rajasthan, it has to be held that

the investigation and filing of charge sheet by P.W.5 is not in accordance with the procedure and it would definitely affect the credibility of the

prosecution case.

The law is specific that where drastic provisions are made by a special enactment the duty of care on the authorities investigating the crime is

greater and the investigation must not only be thorough but also of a very high order. ( Raj Kumar Karwal Vs. Union of India and others, . In this

case it is admitted that the prosecution has not followed the procedure laid down under Sections 50 and 57 of the Act. As per Section 50 of the

Act, it is the duty of the officer to inform the accused about his right to be searched before the nearest Gazatted Officer and if the accused

expresses his willingness, he should be examined before the Gazatted Officer, and the same should be recorded by the police officer concerned.

The above procedure is mandatory. It is nowhere stated in the F.I.R. that P.W.5 informed the accused about the right of being examined before

the nearest Gazatted Officer. It is significant to note that the evidence of P.W.4 and 5 is silent on this aspect. On the above aspect, our High Court

has also observed in Sivakumar alias kumar alias Sugumar ( 1989 L.W.(Crl) 65) that when the Act provides for a minimum sentence of ten years

and a fine of Rupees One Lakh, it will be not only necessary but will be clearly essential that the intent of the Legislature must be carried out in

letter and sprit. In this case the precaution contained in Section 50 of the Act has not been complied with. There is also another infirmity in the case

of the prosecution. As per Section 57 of the Act the Officer who investigated the case must file a detailed report to his superior officer within 48

hours. It is not shown in this case that P.W.5 has filed any such report to his superior officer. As per Section 47 of the Act, the officer concerned,

while sending the report to superior officer should also produce copy or the same before the Court which takes cognizance of the offence. Failure

to follow the mandatory requirements envisaged under Sections 50 and 57 of the Act will affect the credibility of the prosecution case and as such

the benefit of doubt should be given to the accused.

The learned Counsel for the Appellant also relied upon the decision reported in Ali Mustaffa Abdul Rahman Moosa v. State of Kerala (1994

AIR SCW 4393). The Supreme Court has held in the above decision that failure to provide option to the accused u/s 50 of the Act vitiates his

conviction and that a non compliance of the above Section vitiates the conviction. It is also emphasised by the Supreme Court that it is not

necessary that a person who is about to be searched should by himself make a request. In view of the above decision of the Supreme Court and

our High Court I have no hesitation in holding that failure to follow the mandatory requirements of Sections 50 and 57 would vitiate the entire case

of the prosecution.

Regarding the seizure of the contraband and the preparation of mahazar, the prosecution has examined P. Ws.1, 4 and 5. It is contended by

the learned Counsel for the Appellant that there are certain contradictions in the evidence with regard to the seizure of contraband. It is the case of

the first accused before the trial Court that on 22.8.87 he was taken to custody by the police even before the date of occurrence. P.W.1 has

attested Ex.P.1 the mahazar. He has stated that only one mahazar was prepared for seizure of 2 pockets. He has stated that after taking samples

of 2 grams of heroin, the police officer also has given a separate mark to indicate from whom the samples were recovered. P.W.1 has admitted

that the police station near Tuticorin North filed a case against him and Thalayari. Even though P.W.1 attested Ex.P.1 he has stated that P.W.4 has

written Ex.P.1. But P.W.4 has stated that Ex.P.1 was written by one Sivaraman constable and the said Sivaraman has not been examined, the

Asari i.e., 21 the goldsmith who weighed the contraband has also not been examined. Admittedly, it is the case of the prosecution that the accused

were in separate possession of the contraband. If that is so, the contraband should be recovered under separate mahazar. The above fabts are

pointed out only to show that the contraband could not have been recovered from the accused in the time and manner alleged by the prosecution.

There is also abnormal delay in sending the contraband for chemical examination. Ex.P.1, the mahazar would show that the contraband was

recovered on 25.8.1987. But P.W.5 gave the requisition letter to the Court only on 14.9.1987. It is inexplicable as to why the requisition letter

was sent to the Court after a long delay. If the above infirmity in the prosecution case is considered along with the non compliance of Sections 50

and 57 of the Act it will throw considerable doubt upon the truth of the prosecution case. The Trial Court has not considered the importance of

Section 50 and 57 of the Act. In the above circumstances the conviction and sentence passed by the Trial Court is not sustainable in law. As the

recovery of contraband and arrest of the accused are in violation of the mandatory requirements of the Act, the benefit of judgment has to be

extended to the other accused also. For the above reasons I hold that the prosecution failed to establish the offence beyond all reasonable doubt.

The present Appellant and also the accused who is said to be absconding are ordered to be released if their presence is not required in any other

case.

Accordingly the appeal is allowed. The conviction and sentence imposed on the Appellants by the Trial Court are set aside. The bail bond will

stand cancelled. If the Appellant is in custody, the prison authorities are directed to release him forthwith if his presence is not required in any other

case. The fine if paid shall be refunded to the accused.