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Judgment
V. Bakthavatsalu, J.—C.A. No. 346 of 1995 is preferred by the accused namely., Seenivasagam against the conviction and sentence imposed by the trial Court in C.C. No. 434 of 1994. C.A. No. 944 of 1995 is preferred by the accused namely., Ravindranath Tagore against the conviction and sentence imposed by the trial Court in C.C. No. 433 of 94. It is seen that both the accused were alleged to have been in possession of Abin and on the basis of the recovery, two separate cases were filed and tried by the Court. The evidence adduced in both the cases is one and the same.
The prosecution has examined P.Ws 1 to 5 in both the cases and marked Exs.P-1 to P-8 and M. Os.1 to 3.
The case of the prosecution as disclosed from the above evidence is as follows:-
P.W.4 was the Inspector in the respondent Narcotic Bureau. On 2.7.94 at about 9. 00 p.m he was informed that the accused were transporting Abin and he placed the materials to Inspector Narcotic Bureau.
P.W. 1 was Sub-Inspector attached to NIB, Madurai. P.W.5 was Inspector in the said bureau. He recorded the information furnished by P.W.4 and entered the same in the General Diary. The information is Ex.P-6. Thereafter, he and P.W.1 proceeded to Pilliar temple and when they were surveilling the area, they saw both accused proceeding with a bag in their hands towards north. P.W.5 requested one Muthu and Pandi to be the witnesses for the search, for which they refused. Thereafter, they intercepted the accused and enquired them. P.W.5 also informed the accused that the accused are entitled to be searched in the presence of gazetted officer or a Magistrate and he also served letter Ex. P-1. Thereafter, he conducted search of the bag.
In the bag, in the possession of Ravindranath Tagore, he found five packets wrapped up with polythene cover and the above bag contained Narcotic drug Abin. He took 10 grams as sample from the packets. He also conducted search of the bag in possession of another accused namely., Seenivasagam. He took 10 grams of sample and he put the sample in a thick polythene paper and affixed NIB seal on the cover. Exs.P-1 are the samples. He also obtained signature of the accused on the cover. He prepared a mahazar under Ex.P-2. Thereafter, he returned to the police station and registered the case in Crime Nos. 62 & 63 of 94 u/s 18 read with Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act. Ex.P-7 is the FIR.P.W.1 has also signed in the above mahazar. P.W.5 also sent a report u/s 57 of the Narcotic Drugs and Psychotropic Substances Act under Ex.P-8 to his Superior Officer. Then, he sent requisition to the Court under letter Ex. P-3 for sending the samples for chemical analysis.
P.W.2 the Head Clerk received the above sample bottles and sent the same to chemical examiner. P.W.3 the Chemical Analyst examined the samples and sent report under Ex.P-5. After the report is received, P.W.5 filed chargesheet on 7.10.94.
The incriminating materials appearing against the accused were explained to the accused. The accused denied the evidence.
On a consideration of oral and documentary evidence, the trial Court convicted both the accused in two separate cases to undergo Rigorous Imprisonment for 10 years and to pay a fine of Rs.1,00,000/-. Aggrieved by the said conviction and sentence, the accused have come forward with these two separate appeals.
Learned counsel for the appellants contended that the investigation and filing of chargesheet by P.W.5 is illegal, since it is P.W.5 who registered the case, conducted the search and took up the investigation, and that the entire proceedings are vitiated. It is, further, contended that the mandatory requirements u/s 42(2) and 50(1) of the Narcotic Drugs and Psychotropic Substances Act were not complied with and that independent witnesses were not examined. It is, further, contended that the prosecution failed to follow the procedure laid down u/s 52 and 57 of the Narcotic Drugs and Psychotropic Substances Act. Learned counsel for the appellants also contended that two cases were tried separately and that the trial Court has imported certain facts which relates to another case and that therefore, the findings are vitiated.
On the other hand, learned Government Advocate contended that the place where the contraband was seized is only a public place and that therefore, the non-compliance of Section 42(2) of the Act would not vitiate the trial. It is, further, contended that the procedure laid down u/s 50(1) of the Narcotic Drugs and Psychotropic Substances Act was followed in this case and that the requirements of Sections 52 and 57 of the Act are not mandatory.
The point for consideration is whether the conviction and sentence imposed by the trial Court is liable to be set aside for the reasons stated by the appellants?
It is the admitted case of the prosecution that the department received information under Ex.P-6 wherein it is stated that both accused were transporting Opium near Pilliar temple. The above information was received on 2.7 94 at 9.00 p.m. P.W.4 who was attached to NIB, Madras has stated that he received the said information and that he recorded the same and that he furnished the said information to the Inspector when he went to Madurai. In cross examination he has stated that he did not submit the above information to his Superior Officer. Since he was not empowered to do so. Relying upon the above evidence of P.W.4 learned counsel for the appellants contended that P.W.4 did not submit the information to his Superior Officer. In this context, he also relies upon Section 42(2) of the Act. It is clear from the above provision that where an Officer takes down any information in writing under sub-section(1), he shall forthwith send a copy to his immediate superior officer. The Apex Court in State of Punjab v. Balbir Singh (1994 SCC (Cri) 634) has held that if there is total non-compliance of Section 42(2) of the Act, it would affect the prosecution case and to that extent, it is mandatory. It is. thus, clear that compliance of Section 42(2) of the Act is mandatory. There can be no dispute over the above proposition of law.
But the learned Government Advocate contended that in this case, the contraband was seized in a public place and as such, only Section 43 of the Act would apply. Section 43 of the Act empowers any officer of any department mentioned in Section 42 of the Act to seize in any public place or in transit any narcotic drug. But the learned counsel for the appellants contended that the prosecution has not come forward with a specific plea that the place where the contraband was seized is a public place. For proper appreciation of the above contention, it becomes necessary to look into the evidence.
The evidence adduced by the prosecution will show, that P.W.5 intercepted the accused near E.V.R. Memorial Arch Pillar Temple.
In the mahazar it is stated that the above place is situate in K.K. Nagar main road. It is, thus, seen that, in the main road, there is E.V.R. Memorial Arch and Pilliar temple. Explanation to Section 43 defines what is public place. As per the above explanation the expression "Public Place" includes any public conveyance, hotels, shops or other places intended for use by, or accessible to the public. The prosecution is alleged to have recovered contraband near Pilliar temple, which is situated in a public road. It cannot be disputed that the public will have access to the above temple and road.
Learned counsel for the appellants relies upon a decision reported in Vishwan @ Viswanathan v. State of Tamilnadu, etc. (1995 1 L.W. (Cri) 110). The above decision will not apply to this case, since the search was conducted in the house of the appellant. For the reasons stated above I hold that the contention of the appellants that the entire trial is vitiated for non-compliance of Section 42(2) of the Act has got to be rejected.
It is no doubt true that non-compliance of mandatory provisions of Section 50(1) of the Narcotic Drugs and Psychotropic Substances Act would vitiate the trial and conviction. Compliance of Section 50(1) of the Act has been held to be mandatory. In this case, the prosecution has adduced evidence to show that the accused were explained and informed about their right to be examined in the presence of a Gazetted Officer or a Magistrate and that they declined the said offer. In support of the same, the prosecution has also produced Ex.P-1 letter. It is seen from the above document that the searching officer informed the accused that he has got right to be examined in the presence of a Magistrate or a Gazette Officer and that the accused gave reply stating that they are willing to be examined by the Inspector. The evidence of P. Ws.1 and 5 on this aspect of the case do not suffer from any infirmity. That apart, it is also stated in Ex.P.-2, mahazar that the accused were informed about the right conferred on them u/s 50 of the Narcotic Drugs and Psychotropic Substances Act.
But the learned counsel for the appellants contended that the contraband was not recovered in the time and manner alleged by the prosecution and that accused were taken from their house and that they were implicated in this case and that the prosecution failed to examine independent witness. P.W.5 has stated that on the north of the place where the contraband was seized is the road proceeding to Melur and that there is also another road which proceeds to Court and that traffic constables were posted near roundtana. It is suggested by the accused that there were number of shops in the place where the accused were arrested. P.W.5 has stated that he requested one Muthu and Pandi to be the witnesses for the search and that they refused. It is thus, seen that P.W.5 was unable to procure independent witnesses. It is well settled that mere fact that independent witnesses were not secured to witness the search cannot be a ground to discard the evidence of the searching officer. Except few minor contradictions, the evidence of P.W.5 is amply corroborated with the evidence of P.W.1, who has attested in the mahazar. On reading the entire evidence of P. Ws. 1 and 5 as a whole, I am satisfied that after explaining the procedure laid down u/s 50(1) of the Act to the accused, they conducted search and recovered the contraband. I see no reason to discard the evidence of P. Ws. 1 and 5 on this aspect of the case. I accept the evidence of P.W.5 and hold that the requirements of Section 50(1) of the Act were complied with by the prosecution. Therefore, the contention of the appellants that the prosecution has not followed the procedure laid down u/s 50(1) of the Act has to be rejected.
In the Balbir Singh case referred to above, the Apex Court has held that the provisions of Sections 52 and 57 of the Act which deals with steps to be taken by the Officer after making arrest or seizure are by themselves not mandatory and that if there is non-compliance or if there are lapses like delay then the same has to be examined to see whether any prejudice has been caused to the accused. It is seen from Ex.P-8, that P.W.5 has submitted a report to Deputy Superintendent of Police on 3.7.94. No doubt it does not contain any date as to when the Deputy Superintendent of Police received the report. It is contended by the appellants that Ex.P-8 is not a detailed report as contemplated u/s 57 of the Act and that the particulars of quantum of contraband and the process of samples taking are not mentioned in the above report. It is stated therein that the officials seized Opium weighing 5 kgs and that mahazar was prepared at the scene. But other particulars are not stated in the above report. I fail to understand as to how the accused was prejudiced by non-mentioning of certain facts in the above report. Therefore, I do not accept the contention of the appellants that since Ex.P-8 does not contain full particulars it would prejudice the case of the accused, cannot be accepted.
Section 52 of the Act states that every person arrested and the articles seized under warrant shall be forwarded without unnecessary delay to the Magistrate, Sub-clause (3) to Section 52 states that articles seized shall be forwarded without unnecessary delay to the officer incharge of nearest police station or officer empowered u/s 53 of the Act. The letter Ex.P-4 addressed by the Court to the Assistant Director of Chemical Examiner will show that the Court received requisition from the Inspector on 5.7.94. P.W.2 the Head Clerk has stated that the Court received M.O.1 series which contraband marks Exs.P-1 to P-5 with NIB seal and also M.0.2 samples. P.W.3 the Chemical Analyst has stated that he received the sample and that he tested the contraband and that he also compared the seals found on the samples with the specimen seal and that both tallied with each other. The evidence of P.W.3 was not challenged in cross examination. Regarding the compliance of Section 52 of the Act, the attention of P.W.5 was not drawn and no specific suggestions or questions were put to P.W.5. In the above circumstances, the contention of the appellants that non-compliance of Section 52 of the Act would affect the case cannot be accepted.
Learned counsel for the appellants contended that P.W.5 conducted the search, registered the FIR, took up investigation and filed chargesheet and that therefore, the entire proceedings are vitiated. In support of the same, he relies upon a decision reported in Ummed v. State of Rajasthan (1996 (1) Cri 358 (Raj). It is held in the above case thus:-
Wherein a case under NDPS Act case complainant and investigating officer is one and the same person, investigation is vitiated.
In Megha Singh Vs. State of Haryana, , the Apex Court has held that Head Constable arrested the accused and on search being conducted by him pistol was recovered and that FIR was registered and that he being the complainant should not have proceeded with the investigation of the case. I had an occasion to consider the similar question in Mani v. State ( 1998 1 L.W. (Cri.) 85). It has been held by me in the above case that P.W.5 filed chargesheet and that G.O. No. 1437 dated 24.9.87 empowers only Deputy Superintendent of Police to exercise powers u/s 41(2) of the Act and that since the Government order came into force, P.W.5 should have entrusted the matter to the Officer specified in the above Government order and that therefore, the investigation and filing of chargesheet by P.W.5 is not in accordance with the procedure. It is seen that after coming into force of G.O. No. 1437 only Deputy Superintendent of Police was empowered to investigate and file chargesheet. The decisions of Rajasthan High Court and other decisions were also considered by me in a subsequent decision rendered by me in Gopal Gani Ram v. Superintendent of Customs and Central Excise C.I.U, Tiruchirapalli (1999 M.L.J. (Cri) 387). I had occasion to consider all the decisions on this aspect of the case, especially the decision of the Apex Court reported in State of Punjab v. Balbir Singh (J.T. 1994 2 108). It has been held by the Apex Court that if the police officer carrying on investigation including searching, arrest comes across a person being in possession of Narcotic Drug, then two aspects will arise and that if he happens to be one of those empowered officers under the Act. then he must follow the provisions of the Act and continue the investigation. In this case, P.W.5 is an empowered officer and therefore, he is empowered to continue the investigation after recovery of the contraband. In view of the above facts, the contention of the appellants that further investigation conducted by P.W.5 is vitiated cannot be sustained. In the above circumstances, the decision relied on by the learned counsel for the appellants cannot be pressed into service. Further, G.O. No. 163 dated 12.8.92 empowers the Sub-Inspector and Inspectors to investigate the offences under NDPS Act.
The trial Court relied upon a decision reported in Bennchard J. Framous @ Francis v. State Ortege (1992 (2) Cri. 778). It is held in the above decision that after investigation is over the moment of recovery is affected and the statements of the witnesses are recorded who are present at the sport, and that in the present case, ACP was present at the time of the recovery and that no prejudice is caused to the appellants. In this case, the search was conducted in the presence of P. Ws. 1 and 5 P.W.5 who is empowered officer is entitled to proceed with further investigation and file chargesheet. In the above circumstances, the procedure followed by the prosecution cannot be said to be vitiated by any infirmity.
It is contended by the appellants that the Court while delivering judgment in once case has imported the facts relating to other case and that therefore, the procedure adopted by the trial Court is not in accordance with law. It is admitted that both the appellants were arrested on the same day. It is the case of the prosecution that both were found to be in possession of Narcotic Drug. As P. Ws. 1 and 5 recovered the contraband and arrested both accused, the trial Court has discussed the entire evidence in both cases and as such, the above procedure adopted by the trial Court would not prejudice the apellants in any way.
For the reasons stated above, I hold that the contentions raised by the appellants in this appeal cannot be accepted for acquitting the accused. I hold that the prosecution has established the charge beyond all reasonable doubt. The trial Court on consideration of the entire materials has come to the correct conclusion in convicting the appellants. Therefore, I see no valid ground to interfere with the order passed by the trial Court.
In the result, both the appeals are dismissed. The conviction and sentence imposed on the appellants are confirmed. The appellants who are in custody are directed to undergo rest of the sentence.