Nallusamy vs The State

M. Chockalingam, J.—The sole accused, who stood charged, tried and found guilty under S. 20(b)(1) of the N.D.P.S. Act and sentenced

to undergo R.I. for 4 years and to pay a fine of Rs. 15,000/- in default of which to undergo 9 months R.I., has preferred this appeal.

The fact necessary for the disposal of this appeal can be stated as follows:

On 17.1.1998 at about 8.30 A.M., P.W.3 N. Muthusamy, a Head Constable attached to N.I.B. C.I.D., Trichy received an information from his

informant relating to the possession of ganja by the accused at Trichy Bus Stand. After reducing the same into writing marked as Ex.P4, the same

was sent to P.W.4 R. Rajagopal, Inspector of Police, attached to N.I.B. C.I.D. Accompanied by P.W.1 Bakthavatchalam, P.W.3 proceeded to

the Central Bus Stand, Trichy and found the accused along with a plastic bag. P.W.3 informed the accused as to his right to be searched as

contemplated under S. 50 of the N.D.P.S. Act. But, the accused replied that it was not necessary, and in the presence of independent witnesses

one of whom was examined as P.W.2, L. Mohan, the accused was searched and found in possession of 3 kgs. of ganja. Two samples out of the

same 50 grams each were taken in front of P.W.2. The entire contraband was seized under Ex.P2 mahazar. The accused was arrested at about

12.30 A.M. and brought to N.I.B. C.I.D. Office at Trichy. A case was registered in Crime No. 4/98 under S. 8(c) r/w 20(b)(1) of N.D.P.S. Act.

Ex.P6 printed F.I.R. was prepared and sent to the concerned Magistrate''s Court. A detailed report as contemplated under S. 57 of the NDPS

Act was prepared under Ex.P7 and sent to P.W.4. A copy of the report was also sent to the Judicial Magistrate''s Court concerned under Ex.P8.

The form 95 was prepared, and the accused was remanded to judicial custody along with the documents and properties. On 19.1.1998, P.W.4

proceeded to the site of occurrence, inspected the same, made an investigation, recorded the statement of P.Ws.1 to 3 and one Bakthavatchalam.

The sample that was taken out of the contraband was sent for chemical analysis on the request made by P.W.4. The Chemical Analysis report

under Ex.P9 was received, which indicated that the sample contained ganja, a narcotic substance. On completion of the investigation, a charge

sheet was laid on 16.2.1998 by P.W.4.

In order to prove the charges against the appellant/accused, 5 witnesses were examined and 10 exhibits and 3 material objects were marked on

the side of the prosecution. When the appellant was questioned under S. 313 of Cr.P.C. as to the incriminating circumstances found in the

evidence of the prosecution witnesses, he flatly denied the same. No defence witness was examined. After consideration of the rival submissions

and scrutiny of the materials available, the trial Court has found him guilty under S. 20(b)(1) of the NDPS Act and convicted and sentenced him to

undergo imprisonment, as referred to above.

Advancing his arguments for the appellant, the learned Counsel raised the following two points:

(i) According to the prosecution case, the appellant/accused was found in possession of the contraband namely 3 kgs. of ganja on 17.1.1998 at

about 8.30 A.M. at the Central Bus Stand, Trichy, which is ordinarily a busy place. But, the prosecution has chosen to examine only P.W.2 as an

eyewitness. His evidence was not corroborated by any other evidence, and hence, it is a strong flaw on the prosecution case.

(ii) Before the search was made what was expected to be procedurally done under S. 50 of the NDPS Act has not been strictly complied with.

The learned Counsel would submit that on the above two grounds, the appeal has got to be allowed, and the judgment of the lower Court has to

be set aside, and the appellant be set at liberty.

Countering to the above contentions, the learned Government Advocate (Criminal Side) in his reply would submit that a perusal and scrutiny of

the entire materials and the available evidence would clearly show that the accused was clearly informed about his right available under S. 50 of the

N.D.P.S. Act; that the accused was arrested and searched in the presence of two witnesses, of whom P.W.2 was one, and his evidence would

clearly reveal the truth of the arrest and search made, and under such circumstances, the appeal carries no merit, and the same has got to be

dismissed.

After careful consideration of the rival submissions and the close scrutiny of the available materials, the Court is unable to see any merit in this

appeal.

As narrated above, P.W.3, on an information proceeded to the Central Bus Stand, Trichy on 17.1.1998 noon hours along with P.W.1. The

appellant/accused was informed about his right to be searched in the presence of a Judicial Magistrate or before a gazetted officer, which was

answered that the same was not necessary and the search could be made. A search has been procedurally conducted by P.W.3 in the presence of

two witnesses, of whom P.W.2 was an independent witness examined before the trial Court. The evidence of P.W.2, an independent witness,

when scrutinised, has inspired the confidence of the Court. No circumstance or reason has been brought forth to suspect his testimony. Hence, the

lower Court was perfectly right in placing reliance on the evidence of P.W.2.

The other procedural formalities namely sending the detailed report to P.W.4 Inspector immediately as contemplated under S. 57 of the

N.D.P.S. Act have also been complied with. The printed F.I.R. was immediately sent to the concerned Magistrate''s Court. The arrested accused

was also sent to the concerned Magistrate''s Court for remand along with the contraband. The sample taken at the place of occurrence has also

been despatched to the Analyst through the concerned Magistrate''s Court. The Analyst''s report is also filed as Ex.P9, which would clearly speak

about that the sample contained ganja, a narcotic substance, and thus, the prosecution has clearly proved that the appellant/accused at the time of

arrest and seizure was in illegal possession of 3 kgs. of ganja. Under such circumstances, the law would expect the rebuttal of the presumption

under S. 35 of the N.D.P.S. Act, but the accused has miserably failed to do so, and hence, there is no hesitation for the Court to hold that he was

in illegal possession of 3 kgs. of ganja at the time of occurrence, and the prosecution has proved its case beyond reasonable doubt. The Court is of

the view that there is nothing to interfere either in the conviction or in the sentence awarded by the Court below.

In the result, this criminal appeal would fail, and the same is dismissed, confirming the judgment of the lower Court.