Tamilvel & Ors. vs State

This Criminal Appeal has been filed against the judgement and conviction made in C.C.No.151 of 2005, by the learned Principal Special Judge,

Special Court under EC & NDPS Act, Chennai by judgement dated 20.02.2012.

By the said judgement of the trial court, the appellant had been convicted for the offences punishable under Section 8(c) read with 20(b)(ii) (B)

of the NDPS Act 1985.

There were totally four accused in the case out of whom, the accused No.2 died during the trial itself against whom, the case was abated. So

the conviction was given against A1, A2 and A4. Today, it is informed by the learned counsel for the appellant that during the pendency of this

appeal, A4 also died on 22.06.2016. Therefore, against A4, who is the third appellant herein this appeal is abated.

According to the prosecution, based on the information received from the informant on 15.02.2005, at 7.00a.m., P.W.1, the Sub Inspector of

Police, had recorded the said information from the informant whereby, it was informed by the informant that, four persons had planned to bring

contraband at the junction of T.P.Chatram, East Club Road and Cementry Road at about 8.00a.m. on 15.02.2015.

Recording the said information (Ex.P.1), P.W.1 had informed the same in writing to the P.W.5, the higher official, investigating officer, who on

examining the said information at 7.15a.m., had permitted the P.W.1, P.W.2, P.W.4 and one head constable, Sundar raj for taking further action

on such information.

Accordingly, the police team headed by P.W.1, proceeded to the spot and reached the spot at 7.45.a.m., where they waited for next 15

minutes and about 8.00a.m., four suspected persons with plastic bags in their hands had come to the spot and they were identified by the

informant, who had also been in the spot at the time. The four accused persons were intercepted and caught. Thereafter, they had been informed

that the police team had to search them and in this regard, it is the case of the prosecution that even though the passerby public had been requested

for being the witness for search, since no one had come forward, the P.W.1, made the other police people i.e., P.W.2 and 4 as well as the another

head constable as witnesses and based on the search mahazar, they searched the four accused persons and found contraband (Kanja) of

2.250Kgs., 2.150Kgs. 1.200Kg. and 1.150Kg. respectively, from A1 to A4.

It is also the case of the prosecution that in order to comply with Section 50 of the NDPS Act, the right of the accused to be searched in front

of the Gazattee Officer or Magistrate, had been informed by P.W.1, and jointly they, claimed to, have agreed upon to be searched by P.W.1 and

his team and in this regard, a common mahazar for search had been prepared where, all the four accused had signed.

After search and recovery of contraband, samples were taken for sending for chemical analysis and after preparing arrest memo and after

informing the nearby relatives of the accused persons, who had on information came to the spot, the arrest memo in front of them had been served

on them and thereafter, after arrest, the accused persons were brought in to the respondent police station, where FIR had been registered and the

special report had also been prepared and on the same day, P.W.5 investigating officer had sent the accused persons for remand to the remanding

Magistrate where, the seized contraband had been produced.

It is the further case of the prosecution that the remand Magistrate had directed the respondent police to produce the contraband at the Special

Court for NDPS Act. Thereafter, after getting it, the contraband had been produced before the Special Court and after having obtained the

chemical analysis report from P.W.3 and recording her statement and completing the investigation, P.W.5 filed the final report.

Before the trial court, the search officer/Sub Inspector of Police was examined as P.W.1, other head constable was examined as P.W.2 and

yet another head constable was examined as P.W.4, the chemical analyst was examined as P.W.3 and the Inspector of Police/ Investigating

Officer was examined as P.W.5.

No one was examined and no documents were filed on the side of the defence. The Trial Court after having completed the trial, found the

accused guilty and questioned the sentence and thereafter, convicted the accused persons/appellants for two years rigorous imprisonment and

imposed a fine of Rs.10,000/- each, in default to undergo three months rigorous imprisonment.

I have heard Mr.G.S.Magesh, learned counsel for the appellants and Mrs.S.Thankira, learned Government Advocate (Crl.side) appearing for

the respondent/State.

Learned counsel for the appellants submitted that, the following defects are found in the case which are fatal to the prosecution case. They are:

(i) That the information from the informant was received at 7.00a.m. on 15.02.2005, had it been received at 7.00.a.m. it could have taken a

reasonable time of 5 to 10 minutes, however, P.W.1 had recorded in Ex.P1 that at 7.00a.m. itself it had been reduced into writing and was

produced before P.W.5, for necessary action/permission.

(ii) The P.W.1, deposition and P.W.2 and P.W.4 depositions are contradictory in nature in more than one aspect.

When Ex.P10 was claimed to have been given for A2, Murugan to his relative Senbagavalli, the Ex.P10 refers only the name of A1, as the

said A1, Tamilvel alone has signed in Ex.P10, which according to the prosecution had been the arrest memo in respect of A2, Murugan.

Further, Section 50 of the NDPS Act has not been complied with. Merely recording of statement that the appellants/accused persons had

agreed for search by the P.W.1 himself is unbelievable and therefore, that is also fatal to the prosecution case.

When Ex.P3 was prepared at the scene of occurrence itself and it is only thereafter, they went to the police station it had no occasion to

mention the crime number in those documents whereas, in fact, the crime number has been mentioned in this document.

There is no evidence to the effect that, when the relatives of the accused were informed? On what information they came to the scene of

occurrence immediately? Except the statement that they had been informed through one of the police man no evidence was available to

substantiate the stand of the prosecution.

Also, the head constable, Sundar Raj, who had prepared Exs.P3 to P8, had not been examined by the prosecution.

The aforesaid contradictions have been put forth by the learned counsel for the appellants and argued that in view of these contradictions, it

become quite clear that this case is a cooked up case as it had been done at the police station itself by summoning the accused persons and

thereafter, relatives'' signatures were obtained by the respondent police to foist a false case.

Per contra, Mrs.S.Thankira, learned Government Advocate (Crl.side) appearing for the respondent side submitted that, the contradictions put

forth by the learned counsel appearing for the appellants are very minor in nature and that would not in any way hamper or stand in the way of the

prosecution case. The learned Government Advocate would also submit that, Section 50 has been well complied with in this case as the right of

the accused to be searched in front of the Gazatted Officer or Magistrate had been explained to them and since they agreed upon the search of

P.W.1 by himself by giving their consent in writing as they have signed in the search mahazar, P.W.1 proceeded to search them. Learned

Government Advocate would also submit that since no public has come forward to be the witness, no independent witnesses was involved and

therefore, the departmental witness had been pressed into service.

These procedures are quite common in cases of this nature as at the scene of occurrence itself, these proceedings, as contemplated under

Section 50, have to be complied with and further when the public did not come forward to help the police, the prosecution had no other option

except to adopt these procedure as has been adopted in this case and moreover, this type of procedure is an acceptable one in the eye of law.

The learned Government Advocate (Crl.side) would also submit that, from the moment, the P.W.1 received information from the informant,

every action on the side of the prosecution had been recorded. They prepared documents and those documents had been produced as exhibits

and therefore, having considered the evidences available on the side of the prosecution, the trial court had come to the conclusion that the

prosecution has proved the case beyond reasonable doubt and therefore, the Trial court has convicted the appellants.

I have heard the learned counsel on either side and have perused the materials placed before me carefully.

Since number of contradictions have been pointed out by the appellant side, whether those contradictions, are really available, have to be gone

into.

In this regard, the evidence of P.W.1, the search officer/Sub Inspector of Police can be first dealt with. In the chief examination, he has stated

that, on receipt of the information at 7.00a.m. after having recorded the same and after obtaining the permission from P.W.5, he along with other

policemen started at 7.30a.m. from the station and went to the spot by walk and reached at 7.45a.m. and at about 8.00a.m. four suspected

persons came in with plastic bags, on their hands, who were identified by the informant and immediately, they were intercepted. In this regard, the

P.W.1 has categorically stated that the informant has identified the accused persons. P.W.1 says as,

VERNACULAR MATTER OMITTED

Whereas, P.W.3 in his cross examination has stated as follows:

VERNACULAR MATTER OMITTED

Like that, P.W.1 in his cross examination has stated that Ex.P3, Mahazar was written by the Head Constable, Sundar raj, who accompanied

him. He further deposed that the documents of Exs.P1 to P8 were not written by him and only the head constable, Sundar raj, had written all those

documents. In this regard, the exact deposition of P.W.1 are extracted hereunder:

VERNACULAR MATTER OMITTED

He had also deposed that he had not stated in his report that what is the quantity of contraband each of the accused persons was possessing.

The exact deposition is as under:

VERNACULAR MATTER OMITTED

It is also accepted by P.W.1 that the search notice was not individually given to each of the accused, instead, one common search notice had

been given to all the accused persons. He had further deposed in the following terms:

VERNACULAR MATTER OMITTED

However, the P.W.2 in his cross examination has stated as follows:

VERNACULAR MATTER OMITTED

Like that, P.W.4 also in his cross examination has deposed like this:

VERNACULAR MATTER OMITTED

P.W.5 in his deposition has stated that, the seized contraband was produced on 15.02.2005 itself before the remand Magistrate and who, in

turn directed the respondents to produce before the Principal/Special Court, accordingly, the contraband was produced on 22.02.2005 along with

Form-95. The relevant portion of the said deposition of P.W.5 is extracted hereunder:

VERNACULAR MATTER OMITTED

In his cross examination, P.W.5 has accepted that only the signature of V Metropolitan Magistrate alone is available in Form- 95. The relevant

portion of the deposition of P.W.5 is extracted hereunder:

VERNACULAR MATTER OMITTED

I have gone through the entire materials placed before this court such as the Exhibits marked on behalf of the prosecution and the evidences

adduced by them. P.W.1, search officer has categorically stated that, the four accused persons were identified by the informant but that statement

has been contravened by the deposition of P.W.3, who has categorically stated that the accused persons were not identified by the informant.

Like that, P.W.1 has categorically stated that Exs.P3 to P8 were written by Head Constable Sundar Raj, whereas, the P.W.2 says, the

Exs.P3, Mahazar was written by P.W.1, Sub Inspector of Police by his own hand. The said Sundar raj, Head Constable, who had written Exs.P3

to P8, had not been examined before the trial court whereas, other two head constables were examined as P.W.2 and P.W.4.

The mechanical recording of the statement with regard to the compliance of Section 50 of NDPS Act is noticed in this case also as P.W.1 has

recorded that, since no public had come forward to be as a witness for search, the police people, who came along with him had been shown as

witnesses. The place of occurrence is a junction of two roads in the morning hours. Therefore, lot of activities would be available in that locality.

When that being the position, who are all the public, the prosecution attempted to bring as witnesses, had not been mentioned and no one had

been shown atleast for the purpose of narration of the statement. According to the prosecution, the search and seizure operation was taken place

in the scene of occurrence between 7.45a.m. and 11.00a.m., in a busy road that too in a junction, all the seven documents from Exs.P3 to P10

were prepared at the spot itself. On perusal of these documents one can easily opine that, it is very difficult to write and prepare these documents

standing in a busy road junction, as the search team claimed to have gone to the spot without even a vehicle.

Also, as rightly pointed out by the learned counsel for the appellants, in Exs.P9 arrest memo claimed to have been given to the relatives of the

three accused persons namely, Tamilvel, Selvam and Balaraman i.e., A1, A3 and A4 the signature of these said persons are available along with

the LTI and signatures of the relatives. Whereas Ex.P.10, for A2 Murugan, it was claimed by the prosecution that the same had been given to the

relative of Murugan, one Senbagavalli and whose LTI also recorded therein. However, under the heading person arrested the A1, Tamilvel''s,

signature is available.

Admittedly, the seized contraband had been produced before the Special Court only on 22.02.2005 whereas, the direction was given by the

Magistrate on 15.02.2005 itself, to produce the contraband at the Special Court. There is no explanation from the prosecution side for such a

delayed production. It is also admitted by P.W.5 that in Form-95, only the signature of V Metropolitan Magistrate is available and not the Special

Judge for NDPS Cases.

In respect of all these contradictions, there is no plausible explanation from the prosecution side to plug the holes. If we look at the exhibits P1

to P8, each of the documents has been neatly written by the same person with proper hand writing, all the sub heading etc., have been underlined

by making scale line, hence, it is highly doubtful that all these documents could have been prepared very neatly at the scene of occurrence itself,

which is a busy road junction.

This suspicion is also strengthened by the prosecution witness as they have given contradictory statements. Ex.P3, Mahazar was claimed to

have been written by the Head Constable, Sundar Raj as deposed by P.W.1 however, it is the contradicted deposition of P.Ws.2 and P.W.4 that

Ex.P3 was written by P.W.1, Sub Inspector of Police himself by his own handwriting. Further, on perusal of Ex.P3, Mahazar, one can easily say

that the hand writing of Ex.P3, Mahazar and other documents such as Exs.P4, P6 and P8 etc., are with the same hand writing. That is the reason

probably, the prosecution witnesses have given contradictory statements, while they depose before the trial court as to the author of the exhibits.

These contradictions in the given circumstances of the case will certainly go to the route of the matter and it has enhanced the suspicion areas in the

minds of this court.

Like that, when the prosecution claimed that the relatives of the accused were immediately called and they also came to the spot, absolutely

there is no evidence to that effect from which place they had been called for, what is the relationship between those relatives and these accused

persons, where are they residing, what is the mode of information which has been sent to them for bringing them to the spot immediately, has not

been explained by the prosecution.

Even in respect of the compliance of Section 50 of the NDPS Act, only a single mahazar was prepared and there was no individual mahazar or

willingness seems to have been obtained from each of the accused, to ensure the compliance of Section 50 of NDPS Act i.e., search in front of

Gazatted Officer or Magistrate. Also no specific reason has been adduced by the prosecution on the side of lapse on their part.

In spite of all these contradictions, on the prosecution side, the trial court has accepted the prosecution case without perusing, appreciating

these contradictions in proper perspective. Therefore, this court is of the considered view that the trail court has not appreciated these

contradictions of the case based on the evidences submitted by the prosecution. Trial Court, has taken the prosecution case as if what was

projected by them are correct and ultimately convicted the accused persons. Therefore, this court is of the considered opinion that the trial court

judgement is liable to be interfered with. Accordingly, it is interfered.

In the result, by giving the benefit of suspicion and doubt raised in the minds of this court in favour of the accused persons, the judgement and

conviction of the trial court made in C.C.No.151 of 2005 dated 20.02.2012 is hereby set aside and the appellants/accused persons are acquitted.

It is reported that the appellants are on bail. Hence, bail bond, if any, executed by them, shall stand terminated and the fine amount, if any paid, is

directed to be refunded to them.