Vanaraj vs The State

S. Nagamuthu, J.—The appellant is the sole accused in C.C. No. 1246 of 2000 on the file of the Special Court under the NDPS Act and E.C. Act, Madurai. He stood charged for the offences punishable under Sections 8(c) r/w. 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). By judgment dated 01.07.2008, the trial Court convicted him under the said charges and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 5,000/-, in default, to undergo one month rigorous imprisonment. Challenging the same, the appellant is before this Court with this Criminal Appeal. The case of the prosecution in brief is as follows:

P.W. 3 was working as Head Constable attached to NIBCID Police Station at Theni during the year 2000. P.W. 5 was also working as Head Constable attached to the same police station. On 05.09.2000, at about 12.30 p.m., when P.W. 3 and P.W. 5 were in the police station, one informant came to the police station and gave an oral information that four persons by name Ayyavu, Mokkachamy, Vanaraj and Muthumani had gone to Kerala to purchase ganja and they would be returning from Kerala on the same day. He further informed that he could identify them. The said information was reduced into writing under Ex. P. 7 by P.W. 5.

1.1. Then, he along with P.W. 3 and three other Police Officials and along with the informant, started from the police station at 01.00 p.m. in the police van bearing Registration No. TSI-4427. When they reached KM Patty bus stop, they found two independent persons present. When they requested them to be witnesses for the purpose of arresting the culprits, they declined. Therefore, he could not secure any independent witness. When they were awaiting in the way at 04.15 p.m., four persons were coming on the road, each carrying one bag in their hands. They were identified by the informant. Immediately P.W. 5 and P.W. 3 surrounded them. One among the four was the accused herein. They informed all the four persons that they had right to demand that they should be personally searched by the Judicial Magistrate or a Gazetted Officer nearby. But all the four persons told that it was not necessary to take them to a Magistrate or a Gazetted Officer and instead, the Police Officer namely P.W. 5 himself could make personal search. In order to evidence the same, a letter of consent was obtained from all the four accused under Ex. P. 4. Thereafter, all the four accused were searched by P.W. 5 in the presence of P.W. 3 independently. During such search, the accused was found to have 5 kg of ganja in his bag. Similarly the other accused also had ganja in their respective bags. P.W. 5 arrested all the accused and also seized the contraband. Then he returned to the police station along with four accused and the respective contraband. On reaching the police station, he registered one case each against every accused. So far as the appellant is concerned, he registered a case in Cr. No. 201 of 2000 for the offence punishable under Sections 8(c) r/w. 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985. Ex. P. 10 is the F.I.R. Then, he forwarded the accused to the Court for Judicial remand.

1.2. While arresting the accused, P.W. 5 had taken samples of ganja from the bag carried by the accused in two small pockets, which weighing 50g and they were sealed on the spot. The contraband along with sample pockets were all handed over to the Court. Then P.W. 5 prepared a detailed report as required under Section 57 of the NDPS Act under Ex. P. 11 and submitted the same to his immediate superior namely the Inspector of Police. Then, he handed over the case diary to the Inspector of Police for further investigation.

1.3. P.W. 4, the then Inspector of Police took up the case for investigation on 05.09.2000. The sample pockets were sent for chemical analysis through Court, which revealed that they were ganja. After getting report, P.W. 4 filed final report against the accused.

Based on the above materials, the trial Court framed a single charge against the appellant. In order to prove the case on the side of the prosecution as many as five witnesses were examined and four documents were exhibited, besides three material objects. P.W. 1 is the chemical analyst, who has spoken about the analysis done and reported that the sample was ganja. P.W. 2 is the Head Clerk of Judicial Magistrate Court, who has spoken about the forwarding of samples for chemical analysis. P.W. 3 and P.W. 5 were spoken about the production of the ganja by the accused, arrest of the accused and other facts. P.W. 4 has spoken about the investigation done by him.

When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false. However, he did not choose to examine any witnesses on his side nor marked any documents. Having considered all the above materials, the trial Court convicted the appellant and accordingly, punished him. That is how, the appellant is before this Court with this criminal appeal.

Heard the learned Counsel for the appellant, the learned Additional Public Prosecutor appearing for the respondent State and also perused the records carefully.

The learned Counsel for the appellant would submit that the mandatory provisions contained in Section 50 of the NDPS Act has not been followed strictly. He would further submit that there is no evidence to prove that the report sent by P.W. 5 under Section 57 of NDPS Act was received by his immediate Superior. He further pointed out that in Ex. P. 11 report, the vehicle number in which P.W. 5 and P.W. 3 had gone to the place of occurrence has been mentioned as TSE 4424, whereas according to the evidence of P.W. 3, the vehicle number is TSI 4427 and according to the evidence of P.W. 5, it was TSI 4424. The learned Counsel would submit that having been true that the police officials gone to the spot in a vehicle, this contradiction would not have occurred. Thus, this material contradiction goes to the root of the case of the prosecution, the learned Counsel contended. The learned Counsel further submitted that though the place of occurrence is a busy locality, no independent witness has been examined. He further submitted that the Inspector of Police, to whom, all the report under Section 57 of the Act is said to have been sent, has not stated that he received it. Thus, there is a violation of Section 57 of the Act also.

The learned Additional Public Prosecutor would, however, oppose this appeal. According to him, the mandatory requirement under Section 50 of the Act is duly complied with. He would further submit that so far as the contradiction in respect of the number of the vehicle is immaterial. He would further submit that the provision under Section 57 of the NDPS Act has been duly complied with, which has been spoken to by P.W. 5.

I have considered the above submissions.

Since the penal provisions of this Act are very stringent, law requires that it should be proved beyond all reasonable doubts. The proof should be conclusive, leaving no doubt in the mind of the Court. In this case, though it is stated by P.W. 5 that the report under Section 57 of the NDPS Act was submitted to the immediate Superior, that superior officer has not been examined. P.W. 4 has not stated that he received Ex. P. 11. Thus, it is crystal clear that Section 57 of the Act has not been followed at all. Though it has been held by the Honorable Supreme Court that Section 57 of the Act is not mandatory, it does not mean that it can be simply disobeyed. The purpose of insisting the said right is to ensure that there is no falsehood. But the contradiction between Ex. P. 11 and the evidence of P.W. 3 and P.W. 5 would go to show that all is not well with the prosecution. P.W. 3 has stated that the vehicle in which they traveled to the place of occurrence is TSI 4427, whereas according to P.W. 5, the vehicle number is TSI 4424. But according to Ex. P. 11, the vehicle number is TSF 4424. This, in my considered opinion, is a material contradiction, which goes to the root of the prosecution case.

It is submitted that Section 50 of the Act has not been complied with. I do not want to go into that question, because the prosecution has not proved the case beyond any reasonable doubt. It is also not explained to the Court as to why four cases were registered and four final reports have been filed against the accused, when it is the case that all the four accused came together. At any rate, in my considered opinion, the appellant is entitled for acquittal. In the result, the Criminal Appeal is allowed and the conviction and sentence imposed on the appellant by judgment dated 01.07.2008 passed in C.C. No. 1246 of 2000, by the Special Court under the NDPS Act and E.C. Act, Madurai is set aside and the appellant is acquitted from all the charges leveled against him. Fine amount, if any, paid by the appellant shall be refunded to him. Bail bond, if any, shall stand terminated.