Shanthi vs State

M. Thanikachalam, J.—The accused, who sustained conviction followed by sentence in S.C. No. 150 of 2004 on the file of the Additional

District and Sessions Judge and Special Court for Essential Commodities Act at Coimbatore, is the appellant.

The respondent police brought the accused before the trial Court to face the trial for the alleged offences u/s 8(c) r/w 20(b)(ii)(C) of the NDPS

Act (hereinafter called ''the Act'') inter alia on the grounds, that on information, when the premises of the accused was searched, following the

procedure, on 30.3.2004 at about 1.00 p.m., the search party found the accused in possession of 267 kgs of Ganja in the house bearing Door

No. 51, Balaji Gardens, Thindel Village, without any licence or permission, as well she possessed a sum of Rs. 70,070/- being the sale

consideration of the Ganja, for which she should be dealt with according to law.

The learned Additional District and Sessions Judge, who is the Special Judge also under the above said Act, having gone through the materials

placed before him, satisfying himself to frame charge and to proceed further, and in this view, a charge was framed u/s 8(c) r/w 20(b)(ii)(C) of the

Act on 14.10.2004.

As mandated under the Criminal Procedure Code, the accused was examined with reference to the allegations as well as the charge framed

against her, for which she not only disputed the prosecution case, but also pleaded not guilty, thereby compelling the prosecution to make out a

case as contemplated under law.

The prosecution, realising its onerous responsibility to prove the charge against the accused, have marched in 8 witnesses supported by 18

documents armed with 39 material objects.

The learned trial Judge, scanning the above materials and weighing the same in the touchstone of legal principles, came to the conclusion, that

there was no violation of any mandatory provisions of the Act, that the prosecution has undoubtedly proved not only the possession, but also the

offence committed under the above said section for which she should be dealt with as per the penal provision. In this view, having found the

accused guilty u/s 8(c) r/w 20(b)(ii)(C) of the Act, the learned Judge convicted and sentenced the accused to undergo minimum sentence of 10

years R.I. in addition to payment of Rs. 1,00,000/- as fine with usual default clause of one year, giving set off also, which failed to satisfy the

accused and the result is this appeal.

When the matter was heard by this Court, a doubt had arisen about the non compliance of certain provisions, which I will discuss infra also. In

order to ascertain that position, upon contest, an order was passed on 3.4.2006, under which a direction had been given to the Trial Court, to

recall P.W.2 and examine him further. Pursuant to the direction given by this Court in Crl.M.P. No. 20250 of 2006 dated 3.4.2006, the trial court

recalling P.W.2 examined once again and exhibited Exs.P.16 to P.18 giving opportunity to the accused also to cross examine the witness and

thereafter, the case was taken for final disposal.

Brief facts in a nutshell, which are necessary for the disposal of this appeal:

(a) Thiru Murugesan (P.W.2) was working as the Sub Inspector of Police at Erode Taluk Police Station, Erode District. On 30.3.2004, he

received an information from an informer about the illegal storage of Ganja at Door No. 51, Balaji Gardens, Thindel Village by a lady called

Shanthi/accused.

(b) The information so received by P.W.2 was entered in the General Diary (Exs.P16-P18). P.W.2 also informed his higher authorities, about the

proceedings to be initiated against the person, for storing Ganja illegally, in the above said premises through wireless message (Ex.P.3). Thereafter,

since the accused is a lady, P.W.2 sent for Mahalakshmi (P.W.7). P.Ws.2 & 7 and other police personnel proceeded to the place where Ganja

was said to have been stored, for search and seizure, informing the same to the Judicial Magistrate No. I, Erode under Ex.P.4. On the way, P.W.2

also secured the Village Administrative Officer, Thiru Sivaprakasam, PW3 for searching the house of the accused, viz., Door No. 51, Balaji

Gardens, Thindel.

(c) Informing his purpose of coming, P.W.2 at about 1.00 p.m. requested the accused, whether it is necessary that the premises should be

searched by bringing a Judicial Officer or in the presence of a Gazetted Officer or he himself can search the premises, for which the accused

replied that P.W.2 himself could search the premises, for which she has given the consent under Ex.P.5. After obtaining the consent of the

accused, P.W.2, P.W.7 and the police personnel accompanied them, searched the premises of the accused where they have noticed the

availability of 14 Gunny bags of Ganja. Further enquiry with the accused revealed that she was also having a sum of Rs. 70,000/-, being the sale

price of Ganja, surrendering a money purse also in which there was Rs. 70/-. Pursuant to the confession statement given by the accused, under

Ex.P.6, the cash of Rs. 70,000/- was recovered from the kitchen of the house bearing Door No. 51, Balaji Gardens, Thindel Village.

(d) P.W.2 ascertaining that all the 14 bags contain Ganja, took from each bag 100 grams of Ganja for chemical examination. The samples so taken

from 14 bags were sealed with SHO seal as well as the remaining Ganja in the bags were also sealed by P.W.2 affixing SHO seal and they are

M.Os.1 to 14 and 15 to 28 respectively. The cash and other materials such as M.Os.29 to 39 were recovered or seized under the cover of

mahazar Ex.P.7. Then arresting the accused, informing the grounds, P.W.2 brought the accused and the contraband to the police station at about

5.00 p.m. for arresting the accused, Ex.P.9 was prepared by P.W.2. Thereafter, P.W.2 had registered a case for which Ex.P.8 - F.I.R. was

prepared. Copies of F.I.R. were sent to the higher authorities and the arrested accused was sent to Court for judicial remand. In order to

investigate further, P.W.2 prepared a detailed report Ex.P.10, and entrusted the materials recovered by him, as well as the case, for investigation

to the Inspector of Police, who has been examined as P.W.8.

(e) P.W.8, on receipt of the copy of the F.I.R., on 30.3.2004 as well as the contraband and other material objects recovered from the premises of

the accused, took the case for further investigation at about 6.00 p.m. Pursuant to the investigation, P.W.8 inspected the premises of the accused,

where from Ganja was recovered, prepared rough sketch Ex.P.13 and also examined the witnesses including P.W.6, who has stated that the

accused was residing in Door No. 51, Balaji Gardens, which is adjacent to her house. In the presence of P.W.4, P.W.8 inspected the premises,

prepared observation mahazar-Ex.P.11 in which P.W.4 attested along with another. Examining the witnesses, P.W.8 recorded their statements

then and there.

(f) On 31.3.2004, the properties recovered including the contraband were sent to the Judicial Magistrate Court. In order to ascertain scientifically,

whether the property recovered from the premises of the accused is Ganja or not, at the request of the investigating officer under Ex.P.12, 14

sealed sample packets were sent for chemical analysis, to the Regional Forensic Science & Chemical Laboratory along with a covering letter

Ex.P.1.

(g) On receipt of Ex.P.1 along with M.Os.1 to 14, P.W.1 Scientific Officer, Regional Forensic Science Laboratory, Coimbatore verifying the seals

etc., weighing the contents of the sample packets conducted chemical examination, in the presence of Assistant Director, which disclosed that the

contents are Ganja, called Cannabidiol, for which she issued Ex.P.2 certificate. She has also sent the remaining Ganja, to the Court concerned

which are exhibited as M.Os.1 to 14. After examination of all the witnesses and obtaining the report from P.W.1, P.W.8 felt, that the accused had

committed offences under the Act and in this view, after examining P.W.1, he filed a final report, before the court concerned as said above, leading

to trial, ending in conviction.

(h) After the examination of the witnesses, in order to afford an opportunity to the accused to explain the incriminating circumstances available

against her, as mandated u/s 313 Cr.P.C., she was examined. For most of the questions, the accused would state a false case has been foisted

against her, though the arrest is admitted true. Then for some of the questions, she exhibited her ignorance.

(i) The accused, obtaining the permission of the Court, examined herself as D.W.1 and also examined one Selvi, in order to prove that she was not

residing at Door No. 51, Balaji Gardens, whereas she was living at that time Pudupalayam Agraharam for which she has also produced ration

card, marked as Ex.D1.

Heard the learned Counsel for the appellant, Mr. P.Rathnavel and Mr. Hasan Mohamed Jinnah, learned Government Advocate (Criminal Side).

The learned Counsel Mr. P. Rathnavel appearing for the accused/appellant argued, that

(i) the provisions of Sections 42, 50 and 55 of the Act are violated, though they are mandatory in nature;

(ii) that the prosecution has not proved that the contraband was under the exclusive control or possession of the accused,

(iii) that the confession said to have been given by the accused is inadmissible in law, because not recorded by a competent authority,

(iv) that there is considerable delay in producing the alleged seized articles including the alleged Ganja to the Court, which had affected the right of

the accused;

(v) that in the oral evidence of the prosecution witnesses,thereare irreconcilable contradictions, variations, omissions which had weakened the

prosecution case not taken into account by the trial Court; and

(vi) that there is considerable difference regarding weight in the samples said to have been taken from the premises of the accused by P.W.2 and

the samples examined by P.W.1, thereby showing the samples said to have been taken by P.W.2 could not have been examined by P.W.1 and in

this view, the report given by P.W.1 cannot be so accepted as correct and on these grounds, the accused is entitled to an acquittal at least on the

basis of benefit of doubt, which is the basic principle of criminal jurisprudence.

The learned Counsel elaborating the above points, taking me through the provisions of the Act, seeking aid from the judicial precedents and in

detail taking me through the evidence strenuously submitted, that the above factors have not been taken into account, by the learned trial Judge,

resulting miscarriage of justice, which should be rectified by acquitting the accused, for the non compliance of the mandatory provisions.

Responding the above submissions, the learned Government Advocate, Mr. Hasan Mohamed Jinnah, would submit that all the provisions of

the Act are fully complied with and no violation of any mandatory provisions of law is brought to surface and in this view, on the ground of non

compliance of certain alleged mandatory provisions (if any), the accused is not entitled to an acquittal. It is the further submission of the learned

Government Advocate, that the variation or discrepancy (if any) in the evidence, if at all, may be of natural in character, meaning which could be

occurred due to passage of time, for which their evidence cannot be totally ignored. It is the further submission of the learned Government

Advocate, that in weighing the Ganja while taking the sample packets, then weighing the same by the Forensic Science Department people with

digital scale, the difference might have occurred due to the sensitiveness of the scale, which is not shown to be prejudicial to the accused and

therefore, the difference regarding the quantity of the samples, as spoken by P.W.1 and P.W.2 may not have the effect of eclipsing the case of the

prosecution which is otherwise proved. In support of the above submissions, he also in turn took me through the evidence, various decisions of the

Courts, then sought for the approval of the reasoning given by the trial Court, confirming the conviction.

Section 41 of the Act confers, the power upon a Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second

class specially empowered by the State Government, to issue warrant for the purpose stated under Sub section (1). Similarly certain officers

catalogued in Sub section (2) of Section 41 of the Act are also competent to conduct search, seizure or freezing or forfeiture as contemplated

under law. Section 42 contemplates power of entry, search, seizure and arrest without warrant or authorisation, thereby making it clear that the

person authorised u/s 41 need not necessarily follow subsection (2) of Section 42 as mandatory, which reads:

Where an officer takes down information in writing under subsection (1) or records grounds for his belief under the proviso thereto, he shall within

72 hours send a copy thereof to his immediate official superior.

This Section indirectly implies, if the officer conducts search without warrant or authorisation, then alone he is duty bound under Sub section 2 of

Section 42, to intimate information within 72 hours. To my mind it imparts when an officer is authorised by the higher officials, who is competent to

authorise or who was generally authorised by the Government as contemplated u/s 41(2), this mandatory provision need not be followed, which

appears to be the dictum of the Apex Court, which I will advert infra. The reason appears to be, when the immediate superior official had

authorised or the officer who conduct the search is a person authorised by general or special order by the State Government, then it should be

presumed that the person conducting the search is doing his duty as that of an officer coming under the gazetted rank, since authorised. This being

the position, which could be deduced from the deep reading of Sections 41 and 42 of the Act, I feel, the non compliance of subsection 2 of

Section 42, if any in this case, may not be fatal to the prosecution and on that ground giving acquittal may not be possible legally. In this context,

we have to see under what capacity P.W.2 had conducted the search, seized material objects and arrested the accused.

The State Government under G.O.Ms. No. 161, Prohibition and Excise dated 12.8.1992 as contemplated u/s 42(1) r/w 67 of the Act

empowered certain persons to act or exercise the power u/s 42(1) which reads:

the Police Officer not below the rank of Head Constable in the State Police Department including special units.

Section 42(1) of the Act reads:

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 commission of such offence or any illegally acquired property of 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 reading of the above Section would indicate, that the State Government is empowered in this behalf, by general or special order of the State

Government, to authorise a person, being an officer superior in rank to a peon, sepoy and constable. The competency of P.W.2 to conduct search

u/s 42 of the Act is not challenged before me, and it cannot be challenged also, in view of the notification referred above. Therefore, in my

considered opinion, assuming that there was non compliance of subsection 2 of Section 42, that is not fatal, since as far as P.W.2 is concerned, in

view of the authorisation given to him, it is not mandatory, though it may be mandatory for the person who was not authorised to conduct search

without warrant or authorisation.

In support of the above view, Mr. Hasan Mohamed Jinnah appearing for the State drew my attention to a decision in G. Srinivasan Goud v.

State of A.P. 2002 5 SCC 1999. To take contra view, the learned Counsel for the appellant not only relied upon the same decision, but also

invited my attention to a decision in M. Prabhulal Vs. The Assistant Director, Directorate of Revenue Intelligence, . The decision relied on by the

learned Counsel for the appellant in M. Prabhulal''s case is referred in Srinivasan Goud''s case and in fact it is relied on also. In Prabhulal''s case, it

is ruled when search, seizure, etc are conducted by a gazetted officer under Sections 41(2) and (3), Section 42(2) is not applicable and this is not

in dispute also. It is not ruled as pointed out by the learned Government Advocate for the respondent, that when an officer authorised had

conducted the search, seizure, etc., he should follow Section 42(2). Whereas, a concentrated and deep reading of Srinivasan Goud''s case would

disclose ""the need for reporting u/s 42(2) arises because the officer proceeds without authorisation in terms of Section 41(1) or 41(2)"". Thus, it is

ruled by the Apex Court, the requirement of informing the immediate official superior, u/s 42(2) has to be confined to a case where the action is

taken by officers below the rank of gazetted officers without authorisation (emphasis supplied). As seen from the reading of paras 7 to 9, the ratio

laid down is, the officers of the gazetted rank or the officers authorised need not comply with Section 42(2), since they are having source of power

of authorisation etc. The relevant observation in paragraph-9 reads:

It will be seen from Section 41(2) that it refers to only officers of gazetted rank and it is such officers who can authorise their subordinates, not

below the rank of peon, sepoy or constable, to carry out arrest, search or seizure. The function of arrest, search and seizure carried out u/s 42(1)

is by officers who do not have warrant or authorisation in their hands before proceeding to take action. This is as per the heading of the section

which reads: ""Power of entry, search, seizure and arrest without warrant or authorisation."" u/s 41 it is the specified Magistrates who issue warrants

of arrest and it is officers of gazetted rank who give authorisation in favour of their juniors. Provisions of Sub-section (2) of Section 42 are meant

to cover cases falling u/s 42(1). Therefore, in our view, the requirement u/s 42(2) need not be extended to cases of arrest, search and seizure by

officers of gazetted rank. The officer of gazetted rank while authorising junior officers u/s 41(2) knows what he is requiring them to do and

therefore, there is no need for reporting. For this reason Section 41 does not contain any such requirement. The need for reporting u/s 42(2) arises

because the officer proceeds without authorisation in terms of Section 41(1) or 41(2). The requirement of informing the immediate official superior

u/s 42(2), in our view, has to be confined to cases where the action is taken by officers below the rank of gazetted officers without authorisation.

In paragraph-10 the purpose of Section 42(2) is also analysed and it is said:

The superior officers must know about the action taken by their subordinates. However, the position of gazetted rank officers, in view of their rank

and seniority and power to authroise subordinates to proceed to action, is totally different. They are the source of power of authorisation. The

gazetted rank officers enjoy special position and privileges under the Act. They need not be equated to officers taking action without authorisation

or warrants. thereby showing a person authorised need not mandatorily comply with Section 42(2) of the Act.

From the above discussion and by going through the decisions relied on by the appellant also, the law is well clear that where an authorised

officer had conducted search, seizure, the provisions of Section 42(2) of the Act is not mandatory. Even assuming for the purpose of this case,

there is a chance to hold that Section 42(2) of the Act should be followed (which is not so), the evidence has to be seen, whether P.W.2 complied

or not, since recording information regarding the availability of the contraband elsewhere in the General Diary is in a way mandatory.

Mr. Murugesan (PW2), the S.I. of Police has deposed, that he had received the information on 30.3.2004 at about 12.00 noon and the same

was recorded in the General Diary of the Station. As indicated above, before the Trial Court, unfortunately, General Diary was not marked and

upon a direction given by this Court, the entries in the General Diary are marked as Exs.P.16 & 18. Ex.P.16 reads that when P.W.2 was holding

charge of the station as Station House Officer, through his informant, he had received a phone message, informing him, that a lady aged about 35 is

possessing Ganja, in her house bearing Door No. 51, Balaji Gardens, Thindel Village. Thus, Section 42(1) is complied with. It is the further case

of P.W.2 that the information received was conveyed to the higher official, probably to say Section 42(2) is complied with. Applying the strict

wordings available in Sub-section 2 of Section 42 quoted above, it is doubtful whether there is compliance or not, since the Section says ""send a

copy"" to his immediate official superior. But in this case, more than the requirement contemplated under Sub section 2 of Section 42 is complied

with and therefore, I should say empathetically Sub-section 2 of Section 42 is complied with in addition to furnishing some more information to the

higher authorities, serving the purpose of this Section.

The submission of the learned Counsel for the appellant, that before the case being registered, a copy of the information recorded by P.W.2

ought to have been sent to the higher official is not acceptable to me, considering the time limit prescribed therein. Sub-section 2 of Section 42 of

the Act says, the information so recorded should be sent to immediate official superior within 72 hours. In the meantime, if the authorised officer

had conducted search, had taken further action pursuant to the information received and recorded by him, there is nothing wrong in adding that

information also while complying with Sub-section 2 of Section 42 viz., sending a copy which was reduced in writing within 72 hours. After

recording the information at 12.00 noon on 30.3.2004, P.W.2 went to the premises of the accused, conducted search etc., then returned to the

station, registered a case in Cr. No. 126 of 2004 for the alleged offence u/s 20(i)(b) of the Act. Therefore, he had communicated under Ex.P.3 not

only the search conducted by him, but also the fact a case has been registered against the accused. Thus, it can be said, Ex.P.3 would serve the

purpose, though the same is not in accordance with strict letters available in Sub-section 2 of Section 42. In this view of the matter, the submission

of the learned Counsel for the appellant, before raiding the premises, P.W.2 has not informed the higher officials about the information recorded by

him, may not have any significance in this case, that too considering the fact that P.W.2 is not obliged to perform the duty contemplated under Sub-

section 2 of Section 42, since he is a duly authorised officer, u/s 41. For the foregoing reasons, I conclude that there is no violation of Section

42(1) or 42(2) of the Act, as the case may be and on this ground, I am unable to pierce through the prosecution case, to pave way for the accused

to come out from the case.

Section 50 of the Act mandates how search of persons shall be conducted. It says, if the person to be searched so requires, he should be

taken without unnecessary delay to the nearest gazetted officer of any department as mentioned in Section 42 or the nearest Magistrate. Section

50(5) of the Act reads:

When an officer duly authorised u/s 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted

Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance,

or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to

search the person as provided u/s 100 of the Code of Criminal Procedure, 1973.

Thus, an option is given to the Search Officer i.e. an officer duly authorised u/s 42, if it is not possible for him to take the person to be searched as

contemplated under Sub-section 1 of Section 50 he himself can search the person as provided u/s 100 of the Code of Criminal Procedure.

Admittedly, the accused was not taken either to the nearest Magistrate or to the nearest Gazetted Officer of any department. On the other hand, it

is said the premises was searched by P.W.2 himself. Therefore, according to the learned Counsel for the appellant, since the accused was not

taken to the nearest Gazetted Officer or the Magistrate, there is violation of Section 50 of the Act, which is mandatory. The fallacy of the argument

is evident, since the words employed in the Section is not properly understood. The caption of the Section itself reads : ''Conditions under which

search of persons shall be conducted'' (emphasis supplied), thereby meaning this Section is applicable, if a person is searched bodily for the

possession of the contraband, coming under the Act and this provision is not applicable when the search was conducted by an officer duly

authorised in the premises of the accused, where the contraband was concealed. In that process, for arresting, if any personal search has been

made, it is the usual search, not coming u/s 50 of the Act that too in view of the admitted fact, in this case no prohibited item, named narcotic

substance was recovered from the person of the accused. Therefore, I am of the view, the non compliance of Section 50 of the Act, even if any,

that will not create a crack in the prosecution case, to have a collapse of the case as expected, which is the dictum of the Apex Court in Babubhai

Odhavji Patel v. State of Gujarat 2006 (1) SCC (Cri) 73. In the case involved in the above decision, the accused was searched, without being

informed of the option of search before a Gazetted Officer or a Judicial Magistrate and on that basis, an argument was advanced, there was

violation of Section 50 of the Act. As seen from paragraph-6 of the judgment, the officer duly authorised has not recovered any Narcotic

Substance on the person of the appellant. Therefore, the Apex Court relying on previous decisions of the Supreme Court, has held as follows:

if at all there is any violation of Section 50, it will not vitiate the trial but would render the recovery of the illicit article suspect. In the present case

no article was found on the person of the appellant but was recovered from the tanker lorry. Therefore, the recovery itself is not tainted with any

procedural irregularity.

Prabha Shankar Dubey v. State of Madhya Pradesh 2003 DC (Narcotics) 327 also would make it clear that this Section would be applicable, if

the search is conducted on the person, where, by search, Narcotic Substance was recovered, which is not the case before me.

The learned Counsel for the appellant relying on a decision of the Apex Court in Beckodan Abdul Rahiman Vs. State of Kerala, would

contend that non compliance with the mandatory provisions contained in Section 50 as well as 42(2) is fatal to the prosecution and therefore,

conviction of the accused is liable to be set aside. I have already discussed about the effect of Section 42(2) and it may be redundant once again to

go in detail. In the case involved in the above decision, as disclosed by the evidence and as seen from the paragraph 5 of the judgment the

provisions of Section 50 has not been complied with as the accused has not been given any option as to whether he wanted to be searched in the

presence of a Gazetted Officer or a Magistrate. Therefore, taking that into account, the Apex Court has held the non compliance of Section 50,

which contemplates personal search is fatal, which is not the case on hand. A premises, which was searched cannot be taken to a Gazetted Officer

or to a nearest Magistrate and if at all, that should be searched as contemplated u/s 100 Cr.P.C. Only from the premises where the accused was

available, search was conducted, contraband was seized, which I will discuss infra also. Therefore, question of searching the accused taking to the

nearest Magistrate or to the Gazetted Officer does not arise for consideration. As seen from para-3 of the above said judgment, the accused was

searched in the presence of the witnesses not complying with Section 50 in its mandatory form. Since the above case is factually distinguishable, I

should say undoubtedly that fails to advance the case of the appellant. Having the above settled position, still we have to see whether Section 50 is

complied with or not, whether it is to be complied with or not.

P.W.2 informing the search, which he was going to carry out at Door No. 51 Balaji Gardens, Thindel under Ex.P.4 to the Magistrate

concerned, reached the premises at about 1.00 p.m. along with other police personnel accompanied with P.W.3, a Village Administrative Officer.

Though Section 50 does not contemplate that the premises should be searched in the presence of a Magistrate or a Gazetted Officer, as spoken

by P.W.1, he requested the accused whether the search should be conducted in the presence of a Magistrate or in the presence of a Gazetted

Officer, for which according to him, the accused said, P.W.2 himself could conduct the search and to that effect, a statement was also recorded

from the accused under Ex.P.5, which is not seriously challenged erasably. P.W.2 has further deposed when Door No. 51, Balaji Gardens,

Thindel was searched by him in the presence of others including P.W.7, he had noticed 14 bags of Ganja in the bed room, which is not the exact

case of P.W.3, Village Administrative Officer. Simply, he has said in the house, they have noticed 14 bags of Ganja, not giving exact place from

which room it was recovered. But during the cross examination, he would state in that house there were three rooms and the Ganja bags were

recovered from the room which is near the bed room. P.W.7, a lady Sub Inspector, who accompanied P.W.2, since the accused is a lady, has

given evidence that the Ganja Bags were recovered from the bed room. Whether it is a bed room or any other room, the fact remains, as disclosed

by the satisfactory oral evidence given by P.Ws.2, 3 & 7 that 14 bags of Ganja were recovered only from the house premises bearing Door No.

51, Balaji Gardens, Thindel. In this view, the discrepancy as claimed by the learned Counsel for the appellant regarding the place of recovery, in

my considered opinion, fails to make any dent in the prosecution case and therefore, this flimsy defence is only raised for out right rejection.

It is the specific case of the accused that Door No. 51, Balaji Gardens, Thindel does not belong to the accused appellant whereas she was

residing at that time only at Pudupalayam Agraharam, Pallipalayam. In support of the above contention, the accused not only examined herself as

D.W.1 but also examined D.W.2 seeking aid from Ex.D1. Law does not say that the contraband should be recovered from the premises owned

by the accused. It is suffice if it is proved that the contraband or narcotic was recovered from any premises which was under the control of the

accused, though he or she may not be the owner of the said premises. Except the interested oral testimony of D.Ws.1 & 2, though the ration card

would indicate her address is elsewhere, the possibility of the accused taking a house and storing narcotic substance cannot be ruled out. The

possession of the premises at Door No. 51 with the accused is spoken to by the adjacent owner of Door No. 51, who has been examined as

P.W.6. P.W.6 would state that the accused Shanthi was living adjacent to her house in Door No. 51 and her Door Number being 50. By going

through the cross examination in depth, I find no reason even to imagine that P.W.6 is falsely supporting the case of the prosecution. The evidence

of P.W.6 supported by the convincing evidence of P.Ws.2, 3 & 7, who had stated about the presence of the accused, in Door No. 51, Balaji

Gardens, Thindel Village preceded by recording of the same in the General Diary unhesitatingly prompts me, to conclude that only in the above

said address the accused should have been lived or she should have stored the Ganja, which should be construed, that she was in exclusive

possession of the same. Therefore, the submission of the learned Counsel for the appellant that the prosecution has failed to prove that the

contraband was under the control or exclusive possession of the accused falls to the ground, want of evidence and stands upright, because of the

support of the available, cogent, convincing evidence.

The duly authorised officer viz., P.W.2 taking the samples from all the 14 bags affixed SHO seal not only in the sample packets, but also in the

remaining Ganja bags also. Thus completing the entire search, seizure, taking sample, sealing etc., the contraband and other articles were brought

to the Station and handed over to the Inspector of Police viz., P.W.8, who investigated the case.

Section 55 of the Act reads:

An officer in charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under

this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles

to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples

so taken shall also be sealed with a seal of the officer-in- charge of the police station.

A reading of the above Section would indicate, an officer incharge of the Police Station should keep in safe custody of all articles seized awaiting

orders of the Magistrate, then only he can affix his seal to such articles or to take samples and all samples so taken should be sealed by the officer

in charge of the Police Station. In this case, admittedly, P.W.8 has not done anything, such as allowing anybody to take sample or allowing

anybody to seal the sample in his presence or to affix SHO seal in the remaining Ganja Bags in his presence. Therefore, an argument was

advanced, on behalf of the appellant as if Section 55 is not complied with, even inviting my attention to some of the decisions, which may not be

necessary, in view of the settled position of law by the Apex Court in Karnail Singh Vs. State of Rajasthan, which is relied on by both the parties.

u/s 42 of the Act any such officer without warrant or authorisation also had the power to enter into a premises and search and if that is done

so, certain mandatory provision should be followed as enumerated therein. That is why in Section 52(3), it is also said, any officer arresting the

person u/s 41, 42 and 43 or Section 44 shall send the arrested accused and the articles seized without unnecessary delay to the officer in charge of

the nearest police station or the officer empowered u/s 53. Considering both these sections and analysing the purpose and the intent of Section 55,

the Apex Court in Karnail Singh''s case distinguished under what circumstances, Section 55 need be complied with and what circumstances it need

not be complied with, ruling as follows:

With the application of Section 51 read with Sections 52 and 53, the officer required to affix the seal etc., u/s 55, would be ""the officer in charge of

the nearest police station"" as distinguishable from an officer in charge of a police station empowered u/s 53. If resort is had to the procedure

prescribed u/s 52(3)(a), the applicability of Section 55 would be attracted but if the arrested person and the seized articles are forwarded u/s

52(3)(b) of the officer empowered u/s 53, the compliance with Section 55 cannot be insisted upon."" It is further said that the distinction between

the officer in charge of the nearest police station and the officer empowered u/s 53 of the Act is distinct and clear. In view of the reasons assigned

by me supra, P.W.2 has exercised the power as duly authorised person and therefore, the procedure u/s 55 need not be complied with. Thus, the

non compliance of Section 55 also falls to the ground.

It is mandatory, that the prosecution must establish that the samples taken from the Ganja bags alone were sent for chemical examination,

examined by the authority concern and on proof of that alone, the alleged contraband could be brought under the umbrella of Narcotics. P.W.2

has categorically deposed as read from the deposition which need not be extracted again, how he had taken samples from all the 14 gunny bags,

weighing each 100 grams, sealing the same using SHO seal, etc. The contraband seized from the above said premises and the samples taken at the

time of the seizure, were submitted to the court concerned as seen from the records. At the request of the investigating officer only from the

custody of the Court, accompanied with Court letter, the samples were sent for chemical examination, which was received by P.W.1 as spoken by

her. Though she has not stated about the SHO seal available in the sample packets, she would state the seals were in tact and there was no

tampering etc.

P.W.5, the then Head Clerk of the Judicial Magistrate Court, Erode Taluk has deposed that he had received under Form 95-Ex.P.15, 14

sample Ganja packets and as requested by the investigating officer under Ex.P.12 accompanied by the official letter from the Court - Ex.P.1, he

had sent the samples to the Forensic Laboratory. He has further stated that, after examination, the remaining were sent to the Court and they are

M.Os.1 to 14 and identified by P.W.2 also, marked so. As seen from the cross examination, no case has been projected acceptably, as if those

are not the sample packets taken from the Ganja bags from the said premises, as spoken by P.W.2, though questions were put to P.W.5 regarding

the non weighing of the sample packets etc. by the Court. In view of the above evidence available in sending the samples to the Court, sending in

turn the same to the Forensic Department, I am emboldened to say, that the samples taken by P.W.2 in the premises of the accused alone had

been sent for chemical examination through Court and there cannot be any doubt.

An attempt was made by the learned Counsel for the appellant to doubt about the chemical analysis report - Ex.P.2 on the basis of some

discrepancy available regarding the weight of Ganja in the sample packets. P.W.2 repeatedly asserted, as seen from examination that after

weighing correctly, he had packed 100 grams of Ganja as sample packets. But when the same were sent for chemical analysis, as said supra,

P.W.1 weighed the same and noticed, except in one sample packed, in all other sample packets the contents available were each more than 100

grams. Therefore, to some extent justifiably also, I could say at present, the learned Counsel for the appellant, argued that because of the

difference in the weight, a doubt should arise about the correctness of the Ganja sent and the report analysing the said Ganja, which I am unable to

accept in view of the explanation given by P.W.1 herself and also considering the probabilities and the facilities available to P.W.2, while taking the

sample packets. P.W.2 weighed the Ganja in an ordinary scale. Whereas as spoken by P.W.1, the contents of the sample packets were weighed

in the physical balance which would indicate the accurate weight. That is why while sending the communication through court under Ex.P.1, it is

also stated each packet containing about 100 grams. When the same were actually weighed, using the digital scale, the actual weight came out as

noted in the report. Therefore, by this difference in weight alone, I am unable to entertain any doubt, about the actual samples taken by P.W.2 or

whether the said samples alone were sent for chemical analysis. As ruled by the Apex Court, the discrepancy as to the instrument on the envelope

of the seized articles sent for chemical analysis need not be taken so serious to vitiate the entire proceedings as held by the Apex Court in Rajesh

Jagdamba Avasthi v. State of Goa 2006 (1) SCC (Crl) 150 since the same principles could be extended to the difference in weight also.

In the evidence given by P.Ws.1 & 2, there is some difference regarding the actual weight of the samples taken from the premises of the

accused and received by P.W.1. From this alone, since no prejudice has been demonstrated otherwise, I am unable to understand how it will

affect the case of the prosecution since it is further made out, the same samples were chemically examined by P.W.1. No law prescribes, it seems,

how much quantity of Ganja should be taken, for chemical examination and if at all, reasonable quantity of Ganja should be taken, enabling the

examiner to examine the article, sufficiently and satisfactorily. In this way, whether it is 100 grams or more than 100 grams, P.W.1 without any

difficulty, examined the sample packets, came to the conclusion, that they are Ganja and returned the balance of Ganja as spoken by her, which

are marked before the Court as M.Os.1 to 14. Therefore, the difference in weight, in my opinion, certainly has not caused any prejudice to the

accused and no evidence also brought to surface because of the difference in weight there is a possibility to infer the correct opinion might not have

been given by P.W.1. If at all by the difference in weight, a doubt may be entertained whether the samples taken alone were sent for chemical

examination or not. In this case, that doubt has been completely erased by the unchallenged oral evidence of P.W.5, which is supported by Form

95 as well as the covering letter sent to the Forensic Department marked as Ex.P.1. Therefore, on the ground of this discrepancy, I am unable to

doubt about the prosecution case, thereby giving benefit of doubt to the accused to go freely.

Section 54 of the Act says, that if possession of illicit articles is proved in a trial, it may be presumed unless and until the contrary is proved,

that the accused has committed an offence under this Act, if the accused fails to account satisfactorily the possession of the contraband. There is no

enmity against the accused or any motive for P.Ws.2 3 & 7 including other witnesses also, to give evidence against the accused eclipsing the truth.

The arrest of the accused is admitted. The accused while she was examined u/s 313 Cr.P.C. for the question No. 10 would admit about the arrest

under Ex.P.9, which was informed to her relatives also, not challenged. When the accused herself examined as a witness, she has not challenged

her arrest, as if she was not arrested as spoken by P.W.2, but she would state that she was taken from Erode Bus Stand, which appears to be

highly improbable. P.Ws.2, 3 & 7 have categorically deposed, about the search of Door No. 51, Balaji Gardens, Thindel, where the accused was

present and the search memo and other documents also would disclose, that the above said premises was searched in the presence of P.W.3 &

P.W.7 and in the presence of other police personnel. Only from the said place, as per the information received by P.W.2, which was recorded in

the General Diary giving the address, Ganja Bags numbering 14 were recovered, from which samples were taken as proved before the trial Court.

Therefore, unhesitatingly the court should come to the conclusion, possession of illicit article, namely, in this case, Narcotic Drug i.e. Ganja was

recovered from the custody and control of the accused. Therefore, u/s 54, since the accused has not explained the possession satisfactorily and not

even an attempt is made, the presumption would come into surface, as rightly urged by the learned Government Advocate and in this view also it

should be held the offences reported against the accused stand proved.

In Valsala Vs. State of Kerala, , the Apex Court taking into account, the delay of more than three months in sending the seized articles to

Court and finding that no evidence to show that the article was sealed and kept in proper custody in police Station, entertained a doubt, whether

the very articles seized were sent for chemical examination or not. On that basis, since the doubt has not been erased, it is held, conviction cannot

be sustained.

In a subsequent decision of the Supreme Court in State of Gujarat v. Ismail U Haji Patel and Anr. 2003 12 SCC 291 it is observed, that the

delay in sending samples may not be so material, whereas it is for the prosecution to establish that the seized articles were in proper custody, in

proper form and the same samples were sent to the chemical analyst related to the seized articles. As seen from the said judgment, there was no

order by Magistrate as to where the seized articles were to be kept etc. In view of the above position, in the case involved in the above decision,

the accused was acquitted by the lower Court, which was upheld. Placing reliance upon the above decision, learned Counsel appearing for the

appellant would submit that here also there is delay unexplained in nature, and no material that the seized articles or the samples taken from the

premises were sent for chemical examination and therefore, entertaining a doubt, the accused is entitled to an acquittal. By going through the

evidence and for the reasons recorded by me supra also, I do not find any such extraordinary delay in sending the articles to the Court as well as in

sending the same to the Forensic Department for chemical analysis. As spoken by the investigating officer, P.W.8 on 31.3.2004 itself, seized

articles including the sample packets were submitted to the Judicial Magistrate, who had returned the same with the endorsement ""to be produced

before the Special Court for Essential Commodities Act Cases"". Thereafter, as seen from Ex.P.15, resubmitted before the Court on 20.4.2004

and the Presiding Officer of E.C. and NDPS Act cases returned the same on 20.4.2004, thereby showing there was no delay at all on the part of

the prosecuting agency in producing the seized articles before the Court. As seen from Ex.P.12, and as spoken by P.W.5 the sample packets were

produced before the Court on 23.4.2004 and immediately, the same packets were sent along with the Court letter Ex.P.1 to the Forensic

Department, which is very well spoken by P.W.5 supported by P.W.1. Therefore, the prosecution has established beyond all reasonable doubt

that the same seized articles and the samples taken from 14 Ganja bags alone were produced before the Court and they alone had been sent for

chemical examination, thereby identifying the articles also and in this view of the established factual position, the above two rulings relied on by the

learned Counsel for the appellant fail to come to the rescue of the accused, to get an acquittal.

The submission of the learned Counsel for the accused/ appellant, there are some discrepancies regarding how the sample was taken by

P.W.2, with reference to the Mahazar etc., are all minor in nature, bound to occur in any proceedings and should have no significance at all and in

this view, the alleged minor discrepancies or the so called irreconcilable contradictions had no effect of doubting about the genuineness of the case

and in this view, they are all rejected.

The trial Court analysing the facts as well applying the correct principles of law, and considering the commercial quantity recovered from the

control of the accused, from the premises door No. 51, Balaji Gardens, Thindel, has rightly come to the conclusion that the offences alleged

against the accused are proved beyond all reasonable doubt, assigning valid factual as well as legal reasons, which deserve only acceptance in the

light of the above discussion of mine, not warranting any disturbance.

For all the above reasons, the appeal fails and the same is dismissed confirming the conviction and sentence as well as the fine imposed by the trial

Court in S.C. No. 150 of 2004 on the file of the Additional District and Sessions Judge and Special Court for Essential Commodities Act cases at

Coimbatore finding the accused guilty of the charges u/s 8(c) r/w 20(b)(i)(C) of the Act, as per the judgment dated 3.6.2005.