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 a.m. the first accused was found in possession of 500 grams of herein and that the second accused was

found in possession of 150 grams of herein 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.l 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.5, the Sub Inspector of Police on receipt of information

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

direction with bags in their hands. M. Os.l 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.l 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 die Narcotic Drugs and Psychotropic

Substances Act. Ex.P.5 is the F.I.R.P.W.5 examined P.W.I 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 heroin. 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 evidences. 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 on 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 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 and that P.W.5 himself registered the F.I.R. and 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 investigate 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. G.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 G.O. 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 fore 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 sheet 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 is 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 as and from the date of commencement of the Government Order and 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 an 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 u/s 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 express 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 procedure 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 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

hesitation in holding the mandatory requirement would vitiate the entire.

Regarding the traband and the preparation prosecution has examine. It is contended by the Appellant that there in the evidence witnesses zure

of contraband. It is accused before 22.8.87 he was taken to lice even before the P.W.I has attested ExP has stated that only one pared for seizure

of 2 that after taking samples the Police Officer also mark to indicate samples were recovered. That the police station filed a case against him

though P.W.I attested that P.W.4 has written the ExV.l. 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., 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 facts are pointed out only to show that the contraband could not have been recovered from (he accused in the time

and manner alleged by the prosecution.

There is also abnormal delay in sending the contraband for chemical examination. Ex.P.h, 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 unexplicable 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 judgments 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.