Vishwam @ Viswanathan vs State of Tamil Nadu

N. Arumugham, J.—The convicted accused for the offences u/s 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred to as "the NDPS Act", by the Principal Sessions Judge, Trichirapalli, in C.C. No. 56 of 1992, is the Appellant herein, and he challenged the verdict of the learned trial Judge in the above case dated 17.6.1993.

The noting of the brief facts on the prosecution case which led to the present appeal may be stated as here under: The Inspector of Police, Narcotic Bureau, Trichirapalli, examined as P.W.3, on information searched the house of the Appellant at 7/5, Akilandeswari Thoppu Street and recovered the ganja as defined under the NDPS Act to the weighment of about 5 kgs. under the Search List marked as Exhibit P.1, attested by P.W.1, the Sub Inspector of Police and another followed by the registering of the First information Report under Exhibit P.2. A Special report has been sent to the authorities under Exhibit P. 3 and the sample has been sent for the Chemical Analysis under the original of Exhibit P.4 and the letter for the said purpose is Exhibit P.5. He received the Chemical Analysis report under Exhibit P.6, It is seen that search was conducted at about 9.30 a.m. on 18.2.1992 at the above place, after serving the notice under Exhibit D.2. The search report was marked as Ex.D.1. It was also the prosecution case that when P.W.2 along with P. W. 1 and another conducted the search of his house at the time above referred to was found that the accused was having a gunny bag in her hand which has been marked as M.O.1 with about 5 kgs. of ganja marked as M.O.2 and the samples taken to the weighment of about 50 gram, were marked as M.O.3 and M.O.4. After completing all formalities as provided by law, the sample of the contraband seized was sealed and the signature of the Appellant/accused was obtained thereon. Then a requisition was given to the Court for sending the sample of the contraband for chemical analysis as above referred and the Court received the report. On the receipt of the said report, P.W.3, the Inspector of Police completed the investigation after examining the witnesses, and laid the final report against the Appellant before the trial court for the offences u/s 20(b)(i) of the NDPS Act.

Prosecution has examined three witnesses, P. Ws. 1 to 3, namely the village Administrative officer, as the attestor, and the Sub- Inspector of Police, Narcotic Control Bureau, who conducted the search and recovered the contraband, and P.W.3, the Inspector of Police who completed the investigation and laid the final report. On the denial of the Appellant/ Accused denied the very charge framed against him for the offences u/s 20(b)(i) of the NDPS Act. Basing upon the incriminating evidence spoken to and claimed by the prosecution when the Appellant/ accused was examined, u/s 313 of the Criminal Procedure Code, the Appellant has denied the prosecution claim in toto, but however did not examine any witness of his own.

Considering every legal aspects and the established circumstances of the case, the learned trial Judge found the accused guilty for the charge framed against him and accordingly convicted and sentenced the Appellant to undergo imprisonment for a period of one year with a fine of Rs. 5,000/- in default of the payment of fine to undergo rigorous imprisonment for 6 months for the offences u/s 20(b)(i) of the NDPS Act. Aggrieved at this, the Appellant has preferred this present appeal, canvassing the legality and propriety of the same. However, it is seen that he has completed the period of sentence imposed by the trial court and the fine of Rs. 5,000/- remains to be paid.

Mr. M. Nataraj Vallatharasu, learned Counsel appearing for and on behalf of the Appellant herein canvassed three points in assailing the impugned judgment of conviction and sentence imposed against the Appellant by the learned trial Judge, which are the following: (1) P.W.2 has admitted that at the time and on the day of occurrence before the search in question was conducted while P.W.1 was on his way for rounds, he got the information with regard to the alleged dealing and possession of the contraband by the accused in his house, if the said version as spoken to and claimed by P.W.2 was accepted by the learned trial Judge, then the case must squarely come under the purview of Section 42(1) of the NDPS Act. According to the learned Counsel, P.W.I has failed to make analysing in writing about the information he got nor he complied with the mandatory direction inbuilt in the above Section of law. Therefore, the prosecution as a whole clearly suffers and falls within the ambit of Section 42(2) of the NDPS Act; (2) The very search list itself marked as Exhibit P.1 clinches the fact that it is a cooked up document made out subsequently and it could not have been prepared at the time and day as claimed by the prosecution and attested by P.W.1 and other witnesses, Therefore it should have been rejected in to (3) the co-attestor of Exhibit. P. 1 has not been examined in this case and in short, the mandatory direction inbuilt in various provisions of the Act has not been followed, in this case, which in result, totally vitiates the conviction and sentence imposed against the Appellant herein.

For contra, Mr. S. Somasundaram, learned Government Advocate appearing on behalf of the Respondent/State would very much contend that the judgment of conviction and sentence can be justified for the reasons of the categorical and clinching evidence given by P. Ws. 1, 2 and 3 and that therefore, the trial court was perfectly right in convicting and sentencing the accused for the offence u/s 20(b)(i) of the NDPS Act. In the context of the above rival positions, with respect to Section 42(1) of the NDPS Act, it has become necessary for me to advert the recent judicial pronouncement of the Apex Court which provides total answer for this case. The relevant portion in the decision reported in State of Punjab v. Balbir Singh (1994 SCC. (Crl.) 634 : 1994 2 L.W.(Crl) 292) is extracted hereunder:

The questions considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows:

(1) if a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of Code of Criminal Procedure and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements there under would not arise. If during such search or arrest there is a chance recovery of any neurotic drug or Psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.

(2-A) u/s 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. Then he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorised officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal.

(2-B) u/s 41(2) only the empowered officer can given the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction.

(2-C) u/s 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry but such search between sunset and sunrise, he must record the grounds of his belief.

To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.

(3) u/s 42(2) such empowered Officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total noncompliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.

(4-A) If a police officer, even if he happens to be an "empowered" office while affecting an arrest or search during normal investigation into offences purely under the provisions of Code of Criminal Procedure fails to strictly comply with the provisions of Sections 100 and 165, Code of Criminal Procedure including the requirement to record reasons, such failure would only amount to an irregularity.

(4-B) If an empowered officer or an authorised officer u/s 41(2) of the Act carries out a search he would be doing so under the provisions of Code of Criminal Procedure namely Sections 100 and 165 Code of Criminal Procedure and if there is no strict compliance with the provisions of Code of Criminal Procedure then such search would not per so be illegal and would not vitiate the trial.

The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.

(5) On prior information the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure, to take him to the Gazetted officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact.

The provisions of Section 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory, if there is non-compliance or if there are lapses like delay etc., then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case.

It is thus seen, that Their Lordships of the Apex Court have clearly formulated the judicial pronouncement on the mandate to be followed necessarily by the prosecution. In this context, one cannot dispute the said principle enunciated for the reason of the Judgments rendered by the Apex Court under Article 141 of the Constitution of India becomes the law of the land. If that is so, applying the said principle to the facts of the instant case, one has to see that P.W.2 while on a routine duty of rounds got the information even before hand about the alleged contraband to be in possession of the accused and his nexus with the same at the above address. If he got prior information, then the while prosecution case will squarely come under sub-paragraphs (2-C) and 3 of paragraph - 25 of Their Lordships'' Judgment referred to supra, which would mean, that the mandatory directions in built in Sections 42(1) and 42(2) of the NDPS Act have not been followed and complied with either by P.W.2 or P.W.3, which would clearly demonstrate that the case of the prosecution in its entirety is vitiated and affected so badly. On this ground alone, the conviction and sentence recorded by the learned trial Judge is liable to be set aside.

It is rather unfortunate that though a plea has been taken before the learned Judge in this regard, the learned trial Judge has not evinced any interest to discuss the point above referred, but however overlooked the same for unknown reasons. Even coming to the factual aspects of the case, as claimed by the prosecution, if one looks into the very tenor and contents of Exhibit P. 1 the Search List, it bristles with so many corrections and filling up of blanks which casts every serious doubt. Therefore, I am not in a position to discard the very contention advanced by the learned Counsel appearing for the Appellant. On a causal perusal of the oral claim of P. Ws. 1 and 2, I am of the firm view that the genuineness and validity of Exhibit P. 1 still remains a mystery and the prosecution has not discharged its onus upon the same. P.W.1 the attestor and the village Administrative Officer has totally disowned anything about the practicality and interaction of the accused with the offence alleged against him. His evidence betrays the total claim of P.W.2, In this context, the prosecution ought to have examined the other attestor, but it has not done so and for what reasons it is not known. P.W.3 the Investigating Officer in this case did nothing except to verify that all has been done by P.W.2 in this regard. As I have already adverted to, the mandatory directions in built in Sections 41 and 42 of the NDPS Act has not been followed in this case, in the sense, that the information which he received has not been recorded by P.W.2 nor any intimation sent to any superior officer nor has the other mandatory provisions been followed. Therefore, for all the reasoning aforesaid, I am fully satisfied to endorse my view with the ground of attack projected by the learned Counsel for the Appellant, and accordingly I am fully constrained to hold that the prosecution has totally and miserably failed to establish the offence charged against the Appellant and in this regard, the learned trial Judge has failed to appreciate the evidence adduced oral and documentary in its proper perspective to that extent. It is clearly erroneous and not on par with the law and as such it cannot be sustained by any court of law. No other point has been argued before me to sustain the conviction and sentence imposed by the learned trial Judge.

In the result, the conviction and sentence imposed by the learned Principal Sessions Judge, Trichy, in C.C. No. 56 of 1992 dated 17.6.1993 is hereby set aside and the accused is acquitted and set free. But at this stage it was represented that the accused and undergone the period of sentence already in full and only the fine amount alone remains to be paid. In view of my above findings, the fine amount, if any, paid by the Appellant, viz., Rs. 5,000/- before the court below is ordered to be refunded to him immediately. Thus the appeal is allowed.