Danraj vs State Rep. By The Inspector Of ...

This Criminal Appeal has been filed against the Judgment and conviction made by the Special Judge, II Additional Special Court under NDPS Act, Chennai in C.C.No.39 of 2010, by Judgment, dated 16.05.2012 whereby the appellant / accused has been convicted for http://www.judis.nic.in the offence under Section 8(c) r/w 20(b)(ii)(B) of NDPS Act, 1985 as 2 amended by Act 9 of 2001 and sentenced him to undergo 7 months RI and to pay a fine of Rs.5,000/-, in default to undergo further period of one month R.I.

2. The case of the prosecution before the trial Court was that, on 21.08.2009 at about 9.15 a.m, the P.W.2, Sub Inspector of Police working at respondent police station received an information from her informant through telephone about the indulgence of illicit sale of Ganja by one Danraj, s/o. Sankar on the back side of Block-A four storeyed building, Cemetry Road, T.P.Chatram, Chennai.

3. P.W.2 reduced the said information (Ex.P.3) into writing and submitted the same to the P.W.4, Inspector of Police for necessary permission. P.W.4, after having gone through the information placed before him by P.W.2 had given permission to P.W.2 and the police team to rush to the spot and take action in accordance with law.

4. Pursuant to the said permission given by P.W.4, the team headed by P.W.2, Sub Inspector of Police with two police Head Constables, i.e., P.W.3 and another claimed to have started at 9.45 hours at the police station and they reached the spot by 10.00 hours, where they mounted surveillance. At that time at about 10.15 hours, http://www.judis.nic.in 3 the accused was coming with a polythene bag, who have been identified by the informant to the police team and when they attempt to knab him, he tried to escape, however he was caught by the police team and thereafter the police team introduced themselves to the accused and asked his name and address and the name and address given by the accused was confirmed with the name and address given by the informant and thereafter, the P.W.2 claimed to have informed to the accused that, since the police team had received information that, the accused was indulging in illicit sale of Narcotic substance, the police team wanted to search the accused and in this regard, it is further claimed by the P.W.2 that, under Section 50 of the NDPS Act, it is the right of the accused to be searched in front of a nearby Magistrate or a Gazetted officer and the said right available to the accused had been explained to him in writing under Ex.P.4, but the accused declined to accept the said offer of searching in front of the Magistrate or Gazetted officer and according to P.W.2, the accused had allowed the P.W.2 to search him.

5. Accordingly, the accused had handed over the polythene bag, which was holding by him to the P.W.2 and when it was opened the P.W.2 and the police team found that, there had been a contraband appears to be Ganja (cannabinas) and the same had been weighed with the balance they brought to the spot and it was http://www.judis.nic.in 4 measured at 1 kg and 200 gms, out of which 50 gms had been separated for sample and packed and marked as S.1 and the remaining contraband, i.e., bulk quantity of 1 kg and 150 gms had again been repacked in the same wrapper and initialed as P.1. The said contraband, according to the prosecution, had been seized under seizure mahazar, Ex.P.5 and thereafter arrest notice, Ex.P.6 was prepared and given to the accused. Thereafter, Inspection memo, Ex.P.7 was given and after inspecting the accused, the police team at about 12 noon, brought the accused with seized contraband to the police station where the First Information Report (FIR) under Ex.P.8 was registered and thereafter, the P.W.2 prepared the Special Report under Section 57 of the NDPS Act, with that, the case had been handed over to P.W.4, Investigating Officer.

6. The P.W.4, Investigating Officer, after having gone through the Special Report and after enquired the witnesses, had directed to produce the accused before the Magistrate with seized contraband under Form 95 on 21.08.2009 itself, accordingly, the accused was produced before the Magistrate, who remanded him for judicial custody and in Ex.P.10, Form 95, the learned Magistrate had made an endorsement stating that, the contraband seized under Ex.P.10 can be produced before the trial Court. http://www.judis.nic.in 5

7. Thereafter requisition letter was sent to Forensic Science Department on 16.09.2009 under Ex.P.1 and the Chemical Analysis Report under Ex.P.2 was received on 29.09.2009, based on which the P.W.4 laid the charge sheet before the trial Court.

8. Before the trial Court, four witnesses on the prosecution side, i.e., P.W.1 to P.W.4 were examined. P.W.1 is the Scientific Assistant of Forensic Science Department, P.W.2 is the search and seizure officer (Sub Inspector of Police), P.W.3 is the Head Constable , part of the police team accompanied with P.W.2 and also stood as one of the mahazar witness and P.W.4, Inspector of Police is the Investigating Officer, who laid the charge sheet.

9. On behalf of the prosecution, Ex.P.1 to Ex.P.10 were marked and two material objects, i.e., M.O.1 and M.O.2 were produced before the trial Court.

10. The trial Court after tried the case and after hearing the arguments of both sides, after examining the evidence adduced on the side of the prosecution, in support of their case has found the accused guilty for the offence punishable under Section 8(c) r/w 20(b)(ii)(B) of NDPS Act, 1985 and thereby sentenced the accused to undergo 7 months RI and to pay a fine of Rs.5,000/-, in default to undergo further period of one month R.I.

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11. Assailing the said conviction and sentence made by the trial Court by its Judgment, dated 16.05.2012 in C.C.No.39 of 2010, the present Appeal has been preferred by the appellant / accused.

12. Mr.G.S.Magesh, learned counsel appearing for the appellant / accused had raised the following grounds :

"(i) Section 50 has not been complied with, as there has been no material to show that, in spite the efforts taken by the prosecution, no independent witness was willing to be the witness for seizure and that is the reason why the P.W.2, Search and Seizure Officer in witness of the police team had seized the contraband.

(ii) In the search mahazar, the place from where the contraband had been seized was not mentioned.

(iii) Since the FIR was registered only at 12 Noon at police station, before which the crime number has been mentioned in the contraband.

(iv) Though the occurrence said to have been taken place on 21.08.2009, the contraband had been produced before the trial Court only on 15.09.2009 and till such time, i.e., between 21.08.2009 and 15.09.2009, where the prosecution had kept the contraband in the safe custody had not been explained and http://www.judis.nic.in in this regard, no document had been filed. 7

prosecution witnesses and in this regard, it is pointed out that, according to P.W.3, Ex.P.4, i.e., under Section 50(1), search notice was served on 9.15 a.m, whereas they saw the accused only at 10.15 a.m.

(vi) It is also pointed out by the defence side that, the very quantity of the contraband allegedly seized from the accused has not been properly mentioned as at least in two places clear corrections have been made about the quantity of the contraband."

13. By raising all these grounds, the learned counsel appearing for the appellant / accused submitted that, the charge framed against the accused had not been proved beyond reasonable doubt nor the main ingredients of NDPS Act as contemplated under various provisions of the said Act, including under Section 50, have not been followed, therefore the appellant / accused is entitled to be acquitted.

14. Per contra, Mr.Mohamed Riaz, learned Additional Public Prosecutor appearing for the respondent / prosecution would submit that, Section 50 of the NDPS Act has been strictly followed in this case. As there is no independent witnesses available in spite of the http://www.judis.nic.in 8 efforts taken by the police team, having no option, the P.W.2 in the presence of police witness seized the contraband under mahazar, i.e., P.W.4. He would further submit that, in respect of the safe custody of the contraband is concerned, after the same was produced before the Magistrate Court on the date of occurrence, as per the order of the learned Magistrate, it had been kept in the safe custody of the police station and thereafter was produced before the trial Court. Since there has been some delay in transmitting the case records from the Magistrate Court to trial Court, unless the same is received by the trial Court, normally the trial Court would not receive the contraband and therefore only after receipt of such documents by the trial Court and after verifying the said fact only, the prosecution can produce the contraband to the trial Court and therefore, in this regard if at all there any delay is occurred in producing the contraband at the trial Court, the same cannot be attributable to the prosecution.

15. The learned Additional Public Prosecutor has also submitted that, subsequent to the conviction in this case, when the accused was released on bail, he has involved in so many crime and in this regard in the counter affidavit, it has been given by the respondent / prosecution that, the accused had involved in a number of crimes and the Crime No, the offence under which the case has been registered at the respondent police and other police station had also been mentioned.

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16. By giving all these reasons, the learned Additional Public Prosecutor submitted that, the accused since is a chronic offender, pursuant to which, he in fact had been detained under Goondas Act in Goondas No.752 of 2017, dated 04.12.2017, the said factor also can be taken into account and the appeal can be dismissed.

17. Among other grounds, since the learned counsel for the appellant / accused vehemently contended and raised the ground of delay in producing the contraband before the trial Court and also raised the issue that, between the date of occurrence and the date of production of the contraband at the trial Court, there is absolutely no guarantee that, the contraband had been kept in safe custody and therefore there every chance of substitution is possible at the hands of the respondent police and in this regard, the learned counsel since has relied upon number of Judgments of this Court as well as other High Courts and in this case also, there is no evidence to show that, on 15.09.2009, the contraband had been produced before the trial Court and also there is no record to show that, between the date of occurrence and the date of production of the contraband at the trial Court, it had been kept in safe custody either at the police station or at any specific safe meant for this purpose, this Court wanted to know the system being adopted in this regard in keeping this kind of contraband in safe custody during the trial or even prior to the production of the same before the trial Court. http://www.judis.nic.in 10

18. Accordingly, this Court, by order, dated 19.03.2018 has passed the following order :

"After hearing some arguments of both sides, this Court feel to note that, whenever contraband is seized in these kind of matters and if it is produced immediately before the remand Magistrate, where, if such Magistrate gives a direction to the prosecution to produce before the Special Court for NDPS cases, not only in this case but in a number of cases, this Court noticed that the contraband would be produced before the Special Court for NDPS cases after some time. It may be after some weeks or a month or more. Till such time the contraband is produced before the Special Court, whether the same has been kept in safe custody at the Police Station, the immediate answer from the prosecution would be an emphatic 'Yes'. But, there is no record to show that, it has been kept in the Police Station under safe custody.

2. In some cases (cited judgments), the Courts have taken the view that the contraband seized must be kept in a MulKhana Room under Mulkhana register which will be incharge of an officer called Mulkhana incharge, from whom only this kind of contraband would be again taken back by registering in the Mulkhana register and be http://www.judis.nic.in produced before the Court. 11

3. In so far as our State is concerned (Tamil Nadu), this Court wants to know as to the procedure being adopted by the prosecution, especially at Police Station, where contrabands were seized and kept in safe custody for some weeks or a month and more.

For instance, in the present case also, there is no clear answer from the prosecution as to how the contrabands were kept in safe custody at the Police Station of the respondent.

4. Across the Bar, it has been informed to this Court that, in some Police Stations, safe custody facilities are available and in most of the Police Stations, such facilities are not available. In such situations, where the Police Station does not have such safe custody facilities, what shall be the procedure to be adopted by the prosecution to keep the contraband in safe custody, has not been explained.

5. In these circumstances, in order to take a comprehensive decision in this regard, this Court wants a detailed and clear response from the respondent/Police about the afore discussed issue, which may not be possible to be given by the investigating officer of this case or Station House Officer of the concerned Police Station, but can only be given by the Headquarters of the Police Department of the State.

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6.Hence, the learned Government Advocate (Criminal Side) is requested to get written instructions by way of statement or an affidavit from the Headquarters of the State Police (Director General of Police) about the facilities available in the Police Stations in Tamil Nadu to keep the contraband seized in safe custody and also the procedure being adopted in such police stations to keep the contraband in safe custody by way of maintaining Property Room (Malkhana), registers etc., and also the facility of armed police to guard such safe custody room by 24 X 7. These details can be made available in the statement or affidavit to be filed in this regard by the Director General of Police or his authorised State level officer. For the aforesaid compliance, post this matter on 26.03.2018, as first case."

19. In response to the said directive issued by this Court in the order referred to above, dated 19.03.2018, on behalf of the Director General of Police, Tamil Nadu, the Assistant Inspector General of Police (Law and Order), Chennai has filed a status report, dated 23.03.2018, wherein the police Head Quarters, i.e., the Assistant Inspector General of Police (Law & Order), Mylapore, Chennai - 4, has given the following details in the status report : http://www.judis.nic.in "It is submitted that, in the State of Tamil 13 Nadu every police station has separate store room. The seized contrabands are packed properly, labeled with case details, then the same is sealed and sent to the Court through Form-91. The case properties returned to the police stations are kept in the store room as per the Court order and necessary entries are made in the Case Property Register and Court Return Case Property Register. It is further submitted that one police personnel with arms and ammunitions has been nominated for police station sentry duty to safe guard the said store room and it is round the clock (24x7) duty for them.

5. It is also submitted that as per the direction of Hon'ble Supreme Court of India in Criminal Appeal No.652/2012. Government of Tamil Nadu sanctioned five storage places one in each zone and an additional one at Theni (viz)

(i) Chennai - Chennai city and North Zone (Kancheepuram, Thiruvallur, Vellore, Tiruvannamalai, Villupuram and Cuddalore Disttrict).

(ii) Trichy - Trichy city and Central Zone (Trichy, Karur, Ariyalur, Perambalur, Pudukkottai, Thanjavur, Tiruvarur and Nagapattinam Districts).

(iii) Madurai - Madurai city, Tirunelveli city and south zone (Madurai, Virudhunagar, Ramanathapuram, Sivagangai, Tirunelveli, http://www.judis.nic.in Thoothukudi and Kanniyakumari Districts) 14

(iv) Theni - Dindigul Range (Dindigul and Theni)

(v) Coimbatore - Coimbatore city, Tiruppur city, Salem city and West zone (Coimbatore, Erode, The Nilgiris, Tiruppur, Salem, Namakkal, Krishnagiri and Dharmapuri Districts).

6. Government have sanctioned Rs.59.79 lakhs for construction in G.O.Ms.No.10, Home, Prohibition & Excise (XVI) Department, dated 10.01.2017. The construction work is under progress by Tamil Nadu Police Housing Corporation, Chennai."

20. Before dwell in to the said aspect of safe custody of the contraband at the hands of the prosecution, this Court wants to go in to the strength of the evidence of the prosecution, based on which whether the prosecution has proved their case beyond reasonable doubt or not.

21. According to the respondent / prosecution, P.W.2, Sub Inspector of Police, received secret information from her informant on 21.08.2009 at about 9.15 a.m, which according to P.W.2 was recorded at 9.15 a.m, itself and the same was placed before P.W.4, Inspector of Police for his perusal and permission and according to Ex.P.3, such permission was given by P.W.4, Inspector of Police at 9.30 hours. http://www.judis.nic.in 15

22. In this context, if we peruse Ex.P.3, it is mentioned that, the information was received by P.W.2 over phone, but it has not been specifically mentioned such an information was received by mobile phone as she deposed in her cross-examination.

23. In Ex.P.3, the information as well as the request was written by same person and also the wording "seen and permitted on 21.08.2009 at 9.30 hours" also written by the same person, though it has been signed by Inspector of Police.

24. In Ex.P.4, when search notice was given, it has been claimed that, the right of accused under Section 50 of the NDPS Act has been made known to him and he had accepted the P.W.2 to search the accused. The said Ex.P.4 also seems to have been written by the very same person who had written the Ex.P.3. Like that, the Ex.P.5, Recovery mahazar also seems to have been written by the same person, where at Column No.6, when they mentioned the total weight of the contraband, it was originally mentioned as 1 Kg 100 gms and the same has been corrected into 1 Kg 200 gms. Like that when they mentioned the remaining quantity of the contraband, after the sample of 50 gms was taken, it has been originally mentioned as 1 Kg 250 gms, but that has been also erased and corrected as 1 Kg 150 gms.

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25. Ex.P.6 is the Arrest notice, where it is mentioned that, for the alleged offence the accused was arrested at 11.30 a.m, under which the following sentence has been written :

"ma;ah.

jh';fs; goj;Jf;fhl;oa tpguj;ij bjhpe;Jf; bfhz;nld;/ ,jd; efiy bgw;Wf; bfhz;nld;/"

26. Though the P.W.2 is a woman Sub Inspector of Police, it is mentioned as "ma;ah", which means "Sir". Like that in Ex.P.4 also it is mentioned as Sir. But all these Exhibits have been written by the same person. In Ex.P.9, Special Report under Section 57, it has been specifically mentioned as follows :

"gpd;g[ vjphp jd;uh$; vd;gtiu nrhjidapl bghJ egh; rhl;rpfs; gyiu miHj;Jk; vtUk; rhl;rpahf ,Uf;f Kd; tuhjjhy; ehd; vdJ ghu;l;oapy; ,Ue;j j/fh/13448 jpU/bre;jl;o. j/fh/13631 jpU/uh$nrfu; vd;gtu;fis rhl;rpahf epakpj;J vjpupapd; mwptpg;gpy; rhl;rpfspd; ifbahg;gk; bgw;W. ehDk; ifbahg;gkpl;nld;/"

27. It is to be noted that, the P.W.2 search and seizure officer has claimed that, though she requested a number of public to be the witnesses, no one has come forward and therefore two Head Constables in the police party had been made as mahazar witness. http://www.judis.nic.in 17

28. In this context, it is to be noted that, no name has been mentioned by the prosecution that, who are all such public persons, who had been contacted and requested to be the witnesses.

29. In this context, the view taken by a learned Judge of this Court in similar circumstances, when the public not cooperating to the prosecution to be the witnesses for seizure, can be usefully referred to herein.

30. In 2013 (1) CLT (Cri) 291 in the matter of Karnam Thakka Babu v. State, this Court has taken the following view :

"6. This Court heard the submissions made by the Counsel for both sides and perused the materials placed on record. According to the prosecution, 30 kilograms of Ganja was seized from the Appellant/Accused. PW2, Women Sub-

Inspector of Police seized the contraband from the Accused from the occurrence spot. In support of the seizure, prosecution examined PW3 & 4, who have accompanied PW2 to the occurrence spot and signed as witness in the Seizure Mahazar. Even according to PWs.2, 3 & 4, the place where the accused was seen is a busy locality, being the main road where vehicles have been frequently passing through, besides that shops are also located. According to them, http://www.judis.nic.in though attempt was made by them to procure an 18 Independent Witness from the public, they have refused to stand as Witness. This part of the evidence by the prosecution is not acceptable. PW2 has not given the details as to whom she called to stand as Witness but refused. It is not the case of PW2 that she took action against the person who refused to stand as Witness as contemplated under Section 100(8) of Cr.P.C.

Section 100(8) of Cr.P.C. is extracted hereunder:

“(8)Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this Section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under Section 187 of the Indian Penal Code (45 of 1860).”

7. Though it is not mandatory that seizure should be made by the Police only in the presence of Independent Witness, wherever it is possible, the Police must secure Independent Witness in respect of seizure made by them and must let in evidence to gain the confidence of the Court. In this case, though PW2 had gone to the occurrence spot along with her team, on reaching the occurrence spot, she has not taken any effective steps to procure Independent Witness. Even if no Independent Witness was available and even if the accused has opted to search in the presence of Police Witness, PW2 http://www.judis.nic.in could have taken the Accused before a 19 Gazzetted Officer or Magistrate and seizure could have been made in the presence of such officer, in the absence of any Independent Witness. Thus, the manner in which the seizure was made in the present case by the Police officials does not inspire the confidence of this Court and no sufficient evidence is let in by the prosecution. Merely because huge quantity of contraband is seized, the Court cannot jump to a conclusion that the contraband was seized only in the manner alleged by the prosecution. As the punishment is more stringent, the standard of proof required also is more.

8. In view of the above said reasons, the Criminal Appeal is allowed. The conviction and sentence imposed by the Trial Court on the Appellant/Accused are set aside. The Superintendent of Central Prison, Puzhal, Chennai is directed to release the Appellant/Accused forthwith unless his custody is required in connection with any other case. The fine amount, if any paid by the Appellant/Accused is directed to be refunded to him. Consequently, connected Miscellaneous Petition M.P. No. 1 of 2012 is closed."

31. Ex.P.10 is Form 95, where under, according to the prosecution, the contraband had been produced before the Magistrate Court first and thereafter the trial Court. It is the case of the http://www.judis.nic.in 20 prosecution that, the contraband, i.e., sample quantity as well as the bulk quantity had been produced before the Magistrate Court on 28.01.2009, i.e., on the date of occurrence itself and on that date, the learned Magistrate having initialed the Ex.P.10, Form 95, has made an endorsement in the following terms "Returned to be produced before the NDPS Special Court. Hence returned. "

32. Though such an endorsement had been made by the learned Magistrate on 21.08.2009 and it is claimed by the prosecution, that contraband again had been produced before the trial Court on 15.09.2009, absolutely there is no signature, seal or endorsement in Ex.P.10, denoting that, the contraband had been produced before the trial Court on 15.09.2009.

33. In the absence of any such endorsement in Ex.P.10, whether the theory of the prosecution that, the entire contraband had been produced before the trial Court on 15.09.2009 can be accepted or not is the main issue to be decided in this case.

34. In this context itself, the learned counsel appearing for the appellant / accused has made elaborate submissions stating that, there is no fool proof system being adopted by the police / prosecution in keeping the contraband in safe custody before it is produced before http://www.judis.nic.in the Court.

35. In this context, the deposition of P.W.2 in the cross- examination is relevant which is extracted here under :

",e;j 2 Mtz';fSk; vdJ gphpt[ 57d; fPHhd jdapwf;ifapy; Ma;thshpd; ifbahg;gk; kw;Wk;

rPy; VJk; mthplk; rkh;g;gpj;jjw;fhf nghlg;gltpy;iy/ ,e;j tHf;fpy; xU khjphp kl;Lk; jhd; vLf;fg;gl;lJ/ ,e;j tHf;fpy;

rk;gtk; ele;j ehs; 21/8/09/ ,e;j ePjpkd;wj;jpy;

15/9/09 md;W jhd; tHf;F brhj;J jhf;fy; bra;ag;gl;Ls;sJ/ mJtiu tHf;F brhj;J vt;thW ghJfhf;fg;gl;lJ vd;W ve;j Mtz';fspYk; Twg;gltpy;iy/ mjid ve;j MtzKk; mjw;fhf jhf;fy; bra;atpy;iy/"

36. When the P.W.2, in the cross-examination, has even though denied the aforesaid suggestions on the side of the appellant / accused, the fact remains that, there is no record to show that, the contraband had been produced before the trial Court on 15.09.2009 and there is no document to show that till such alleged production on 15.09.2009, the contraband had been kept in safe custody under the control of the prosecution.

37. As there is no document had been filed in this regard by the prosecution and the said issue had been raised predominantly by the defendant's side, the said directive was issued by this Court seeking the stand of the prosecution in this regard and pursuant to http://www.judis.nic.in which, as extracted above, the police Head Quarters of the State had 22 given the status report. In the said report, though they have mentioned that each and every police station, there is a safety room, which is guarded by gunman by 24 x 7, in this case, as well as in number of similar cases, this Court found that, no records had been produced by the prosecution like the safe custody Register or Malkhana Register as called in North India.

38. In this context, the learned counsel appearing for the appellant / accused has relied upon number of decisions.

39. In 2001 (1) Crime 505, in the matter of Samir Ghosh v. State of West Bengal, the Calcutta High Court, confronted with the similar situation, where also according to the defence side, the prosecution had failed to prove that, such articles have been received by the Narcotic cell. The learned Judge, who dealt with the said case has recorded the following findings :

"7. From the evidence on record it is evident that there is a total non-compliance of the provisions of Section 52A of the NDPS Act, which is a mandatory provision. The prosecution has failed to prove when such articles were received by Narcotic Cell, Malkhana or when the article was taken out from the Malkhana and sent for chemical examination. One should keep in mind that one http://www.judis.nic.in 23 of the objects sought to be achieved by the legislature for introduction of Section 52A in the principal Act of 1985 is to prevent "substitution" of articles. Articles after seizure can only be substituted when it is in the custody of the office and / or department which seized the same. If these procedures are not followed, the possibility of "substitution" of articles cannot be ruled out."

40. In this context, a Division Bench of the Calcutta High Court, by its Judgment, dated 18.03.2014 in the matter of Makhan Barman v. State of West Bengal, has analysed a similar situation and has held as follows :

"It had been argued by the learned Advocate for the Appellant that the alleged seizure took place on 06.06.2007 and from the F.S.L.

Report, that is, Exhibit-6, it is found that the sample of the seized article had been received by the F.S.L. on 12.06.2007. It is not proved as to whether the sample of the seized article had been kept under proper and safe custody during that period, or not. Learned Advocate for the respondent submitted on the point that the seized article and the samples thereof had been kept at Dinhata P.S., as stated by the P.W.-1. P.W.-10, who started the investigation of the case, stated that he had handedover the http://www.judis.nic.in seized articles to Malkhana Officer of Dinhata 24 P.S. but the Malkhana Registrar has not been produced and the Malkhana Officer has not also been examined. Moreover, P.W. -10, the first I.O. of the case during his cross-examination, admitted that the seized articles including the samples had not been kept in safe custody separately.

...

Section 52 A of the N.D.P.S. Act says that whenever any contraband goods under the N.D.P.S Act is seized, an inventory should be made as per the procedure prescribed in the said Section and a certificate issued by the Magistrate in the matter shall be a primary evidence in the case. The said provision has not also been followed in the present case."

41. In the case before this Court, by order, dated 04.03.2010, in the matter of Mathi Alias Mathiyalagan v. State, the delay in producing the contraband and the non-examination of the Head Constable, who took the contraband to the Court, according to the High Court, has created doubt of the case of the prosecution. The following findings are given by the learned Judge of this Court, which are usefully extracted hereunder :

"5. While advancing his argument, the learned counsel has made stress on the evidence given by the P.W.3 and Ex.P2 Chemical analysis report. In his evidence P.W.3 would state that http://www.judis.nic.in 25 when the samples were prepared SHO seal was affixed even in the presence of the witnesses. But, whereas in Ex.P2 it does not have any reference to show that SHO seal was affixed in the samples which were received by the Forensic Sciences Laboratory. The evidence given by P.W.2 chemical examiner would substantiate this fact. Moreover, the constable who had taken the samples to the Forensic Science Laboratory had not been examined by the prosecuting agency for the reasons best known to them. In this regard, the learned counsel for the accused would submit that there is one day delay in reaching contraband to the Court which has not been satisfactorily explained by the prosecuting agency. In this regard, he has placed reliance upon the decision reported in 1993 SCC (Cri) 1082 (Valsala v. State of Kerala) wherein it is observed by the Apex Court that in absence of evidence to show that during the long period (of over three months in this case) between the seizure and production in Court, the seized article was in the custody of the Officer-in- Charge of Police Station and that the same was kept under seal. It is also observed that it was doubtful whether the very article that was seized was sent to Chemical Examiner.

6. On coming to the present case on hand, since there is a delay in reaching the http://www.judis.nic.in contraband to the Court the non-examination 26 of the Head Constable who took the contraband to the Court has created doubt in the case of the prosecution. As per the case of the prosecution, the contraband was seized on 14.11.2003, and it appears that it was reached the Court only on 17.11.2003. Though no specific question was put to the Investigating Officer with regard to the delay, it appears explicitly to the Court that it affects the very root of the case of the prosecution."

7. The learned counsel appearing for the accused in order to fortify his argument has also placed reliance upon a decision reported in 2001 Cri. L.J. 4602 (Savitri @ Shoobha and others v. State of Chattisgarh). This Court has gone through the judgment delivered by the Trial Court Judge and in the opinion of this Court it appears that the Trial Judge has accepted the prosecution case in toto without applying his own mind into the contradictions and infirmities arising from the case of the prosecution. Having given careful consideration to the available material on record, this Court is of the considered view that the prosecuting agency has miserably failed to bring home the guilt of the accused and therefore, the accused shall necessarily have to be acquitted."

42. The same issue was also dealt with by a Division Bench http://www.judis.nic.inof the Orissa High Court in the matter of Firoz Alli Khan Bulu v. State 27 of Orissa in Crl.A.No.98 of 2012 etc., batch, by order, dated 05.03.2018, where a Division Bench of the Orissa High Court has made the following observation :

"It was the duty of the prosecution to adduce cogent evidence regarding safe custody of the seized articles along with sample packets in the malkhana of Jarada police station as well as Baidyanathpur police station.

...

Therefore, it is clear that whenever any article is seized and kept in police malkhana, details thereof should be entered in the malkhana register and while taking it out, the entry should also be made in such register. This would indicate the safe custody of the articles seized during investigation of a case before its production in Court."

43. If we analyse these decisions of various High Courts including our High Court, one uncontroverted legal position would be that, whenever the contraband is seized, that should be immediately produced before the Court concerned and if there is any delay in producing the contraband to the Court, the prosecution must come forward to give a satisfactory and acceptable reason for the delay to this Court and in this regard, if there is any delay occurred, the prosecution must be in a position to give cogent evidence to the http://www.judis.nic.in satisfaction of the Court for accepting such delay. Also the prosecution 28 must be in a position to give proper explanation with records to show that, in between period, i.e., before the contraband produced before the Court concerned, the same had been kept in safe custody at the hands of the prosecution and in this regard, if there is any safe custody Register / Malkhana Register, the contraband seized should have been entered into the Malkhana Register with date and time with the signature of the incharge of the Malkhana house and thereafter when ever it is taken from the Malkhana house, that should also be again entered into the Register with the signature of the incharge of the Malkhana house and these documents should also be produced before the Court along with the contraband if it is produced in delay.

44. These are all the general parameters, provided by the Courts of law in number of Judgments, as has been referred to above, to be mandatorily followed by the prosecution.

45. Here in the case in hand, the contraband were seized on 21.08.2009 and according to the prosecution under Ex.P.10, i.e., Form 95, it was produced before the Magistrate concerned, who had returned the same with a directive to produce the same before the trial Court. Thereafter the prosecution claimed to have produced before the trial Court only on 15.09.2009. In this regard, it is pertinent to be noted that, there is no endorsement whatsoever available in the http://www.judis.nic.in 29 Ex.P.10, i.e., Form 95 stating that, the contraband had been produced before the trial Court on 15.09.2009, as this Court finds no whisper suggesting such production on 15.09.2009 before the trial Court.

46. Therefore on the facts of the present case, it cannot be construed that, the contraband had been produced on 15.09.2009 before the trial Court as per the available records.

47. That apart, in general, even if it is assumed that, the contraband had been produced on 15.09.2009 at the trial Court, the fact remains that, between 21.08.2009, the date of which the contraband had been returned by the Magistrate Court and 15.09.2009, the date on which the prosecution claimed to have produced the same before the trial Court, certainly the contraband should have been in the custody of the respondent / prosecution.

48. If that being so, between 21.08.2009 and 15.09.2009, i.e., for three weeks where the contraband had been kept in safe custody had not been explained by the prosecution as in this regard, no documents or evidence had been produced by the prosecution before the trial Court and the trial Court has also not asked any such evidence from the prosecution.

http://www.judis.nic.in 30

49. In this context, it is further to be noted that, the punishment to be awarded against the accused, who have been found guilty under the NDPS Act, is very stringent and it varies depending upon the quantity of contraband, i.e., Narcotic substances possessed by the accused.

50. In this context, I had an occasion to consider a similar issue in Crl.A.No.331 of 2012 in the matter of Rangan and another v. State Rep. by the Inspector of Police, K-6, T.P.Chatram Police Station, Chennai (the very same respondent), by order dated 11.01.2019, when I allowed the appeal filed by the accused in that case, have made the following findings and observations :

"29. In this context, it is to be noted that, since the Narcotic drugs are concerned, under Section 20 of the NDPS Act, the punishment varies depending upon the quantity of the contraband possessed by the accused. Under Section 20(b)(ii)(A) punishment for small quantity was upto one year, under sub clause (B) if it is in between quantity i.e., the lesser than commercial quantity but greater than small quantity, the punishment shall be upto 10 years imprisonment with 1 Lakh rupees fine and under sub clause (C), if it involves commercial quantity, the minimum sentence itself would not be less than ten years and the http://www.judis.nic.in fine shall not be less than Rs.1 Lakh and it may 31 extend to 20 years imprisonment and Rs.2 Lakhs fine. Therefore, it is very important to note that, the provision of NDPS Act is so clear and stringent and the punishment varies depending upon the quantity of the narcotic substance possessed by the accused, when that being the position, in so far as the conclusion arrived at by the Courts on the quantity of the contraband seized as if possessed by the accused is concerned, it must be so vigilant and satisfy itself without any iota of doubt that, the quantity of the contraband as claimed by the prosecution, seized from the accused is produced before the Court and the measurement also shall be ensured.

...

31. In this context, it is to be noted that, in most of the cases of this nature, the prosecution could have produced no record to show that, the police station/NIBCID is having such a facility to have the contraband in safe custody where, there is a property room register which has been maintained strictly by the prosecution at the police station or at the office of the NIBCID, as the case may be and there has been an armed guard round the clock, protecting the property room where, the contraband has been kept in the safe custody.

In the absence of any such document to show http://www.judis.nic.in from the side of the prosecution that, the 32 contraband had been kept in the safe custody for days together or weeks together or in some cases months together, it cannot be simply presumed by the Courts that, the contraband claimed to have been seized from the accused had been kept in safe custody and why the same had been produced before the Trial Court after some days/weeks.

32. Here in the case in hand, no such materials or documents or evidence had been produced by the prosecution except the mere statement and claim about the safe custody of the contraband between the date of occurrence and the date of production of the same before the Trial Court.

33. If at all, the contraband was produced before the Magistrate, under Form No.95, at the time of production of the accused for judicial remand, the Magistrate concerned, must ensure that, the contraband produced under Form No.95, by the prosecution, is having the weight, which was claimed by the prosecution and in this regard, this Court feels that, the prosecution has to ensure before the Magistrate concerned, that the weight claimed by the prosecution i.e., the quantity claimed by the prosecution was available. Like that, once the same had been produced and the weight of the contraband is verified by the Magistrate, he http://www.judis.nic.in or she must give instructions/directions to the 33 prosecution to produce immediately to the Trial Court on the next working day. Thereafter, the prosecution must ensure that, the contraband as directed by the Magistrate was produced before the Trial Court on the next working day.

34. Where also, i.e., at the Trial Court, it is to be once again ensured the weight of the contraband claimed by the prosecution and thereafter, the contraband shall be kept in safe custody either on the same day itself as per the directions of the learned Judge and shall be produced as and when required. Unless these issues are sorted out, the entire system/procedure to be followed by the prosecution consistently, cannot be accepted as safe and fool proof system."

51. In the said case cited above, I found that there was no endorsement by the learned Magistrate to produce the contraband before the trial Court, in spite of that, the trial Court Judge in the Judgment impugned in that appeal had given a finding that pursuant to the directive issued by the learned Magistrate, the contraband had been produced before the trial Court. In the absence of any such directive by the Magistrate in the said case referred to above, the learned Judge in the said appeal had given such finding and convicted the accused, therefore, I decided to reverse the said decision and allowed the appeal referred to above.

http://www.judis.nic.in 34

52. Here in the case in hand, even though there is a directive by the learned Magistrate to produce the same before the trial Court on 21.08.2009, the same had been produced only on 15.09.2009 with the delay of 26 days. No reason whatsoever has been given by the prosecution for such delay.

53. However the learned Government Advocate in defence to the said delay had argued that, normally the case documents from the Magistrate Court would be transmitted belatedly after some days or weeks to the trial Court and only on receipt of the case papers alone, the trial Court would accept production of the contraband. Till such time, no trial Court would accept the contraband even if it is produced by the prosecution and therefore the prosecution had to wait till the document to be reached before the trial Court and has to be produced.

54. Be that as it may, the said system of waiting for the transmission of the documents from the Magistrate Court to the trial Court cannot be a reason for the delay in production of contraband.

55. Assuming that the said delay is inevitable and the same cannot be attributable to the prosecution, the prosecution must be in a position to explain that, in between, the contraband had been kept in http://www.judis.nic.in 35 safe custody at the hands of the prosecution and in this regard, necessary documents such as safe custody Register / Malkhana Register as has been referred to in number of cases cited above should be produced before the Court to the satisfaction of the Court.

56. Here in the case in hand, no such safe custody / Malkhana Register has been produced by the prosecution to say that the contraband seized and directed to be produced before the trial Court had been kept in the safe custody between 21.08.2009 and 15.09.2009 at the hands of the prosecution.

57. Further it seems that, there is no system available either in the Magistrate Court or in the trial Court to verify the weight claimed by the prosecution about the contraband.

58. This is very important in respect of Narcotic substances are concerned, because as I have stated in the Judgment referred to above, i.e., Rangan v. State, by my order dated 11.01.2019, the punishment under Section 20 of the NDPS Act varies depending upon the quantity of the Narcotic substance possessed by the accused. If it is a small quantity, the maximum punishment is one year and if it is in between quantity, i.e., more than small quantity and lesser than commercial quantity, the maximum punishment is 10 years http://www.judis.nic.in 36 imprisonment and if it is a commercial quantity, the minimum punishment itself is 10 years and the maximum punishment is 20 years.

59. Therefore, it is very pertinent to ensure the exact weight of the contraband seized by the prosecution from the accused and that must be ensured strictly by the Court. In this regard, no routine procedure can be adopted by merely accepting the claim made by the prosecution by producing Form 95 and claimed that, a particular quantity of the contraband had been seized.

60. Though it was claimed in each of the case by the prosecution that, a particular quantity had been seized from the accused, the same has never been verified by measuring the contraband either at the Magistrate Court where it is produced at the first instance or at the trial Court when it is produced by the prosecution.

61. These lacunas would go to the root of the matter, as the system being adopted as of now appears to be not a full fledged system, whereunder, the accuracy of what is the weight of the contraband cannot be ensured, resultantly there is every possibility of miscarriage of justice in awarding the punishment / sentence if ultimately the Court found the accused guilty under the NDPS Act. http://www.judis.nic.in 37

62. In the above legal and factual position, as far as the present case is concerned, admittedly there is no proof that, the prosecution had produced the contraband of 1200 gms or 1150 + 50 gms before the trial Court.

63. Further Section 50 though claimed to have been complied with by the prosecution, if the principle in Karnam Thakka Babu v. State, reported in 2013 (1) CLT (Cri) 291 is applied to the present case, it can be safely concluded that, the claim of the prosecution that, no public witness had come forward to be the witness for seizure, in spite of the best efforts taken by them, cannot be accepted.

64. If Section 50 is not followed strictly the seizure in the strength of the police witness cannot be accepted, more particularly in the context, where there is no record to show that, the contraband in question had been produced before the trial Court.

65. These aspects have not been considered by the learned Judge in the Judgment, which is under Appeal.

66. The learned Judge has not at all considered whether the contraband had been produced before him but he has given the http://www.judis.nic.in 38 finding that, it has been produced before the learned Magistrate on 21.08.2009 and the mere delay of 26 days in depositing the case property cannot stand in the way. In this regard, the finding given by the learned Judge in the Judgment impugned is extracted hereunder for easy reference :

"The learned counsel for the accused person further contended that the case property M.O.1 and M.O.2 were deposited before the Court only on 15.09.2009. There is a delay of 26 days in depositing the case property. The prosecution has not offered any explanation for the inordinate delay and cited the decision reported in 2000(4) Crimes Page 1 Madras High Court, Mr.Ravi & Ors..... Appellants v. State by Inspector of Police... Respondent.

Narcotic Drugs and psychotropic Substances Act, 1985 - Section 8C r/w 21 - Recovery of small packets containing heroin from possession of five accuse - appellants on prior information that accused were selling heroin near temple - Conviction challenged on ground of non-joining of any independent witness and delay in sending property to Court - P.Ws.2 and 3, seizing officials had ample opportunity to secure independent witnesses and their evidence that no independent witness could be secured was unbelievable - If Investigating Officer failed to take effective steps to procure http://www.judis.nic.in independent witnesses and explanation was 39 not believable, search was vitiated - Property recovered on 6.7.1996 was produced before Special Court on 17.7.1996 and Constable who received property on 18.7.1996 produced before chemical examiner on 22.7.1996 - No explanation for delay - Conviction was unsustainable.

But on a careful perusal of Ex.P.10, Form-95, it is apparently clear that the property was produced on 21.08.2009 before the learned Magistrate, who has made endorsement as "Returned. To be produced before the NDPS Special Court", proves that there is no delay in production of property."

67. The learned Judge also has given the following finding in the Judgment impugned :

"Further the contention of the learned counsel for the accused person is that P.W.4 who has conducted further investigation and filed the final report, admitted that he has not signed any of the document submitted by P.W.2.

Equally none of the statement recorded u/s.161 of Cr.P.C also not signed by the Magistrate; creates a doubt that all the

documents were prepared only in the police station at a later point of time and produced before this Court in order to victimize the poor accused. But the learned counsel for the http://www.judis.nic.in accused has not explained what is the 40 necessity caused to sign all the papers submitted by P.W.2, while receiving it by P.W.4. It is also seen from the records that the date seal has been affixed in all the documents, statements, final report etc., while filed before the Special Court under NDPS Act, proves that there is no latches on the part of the prosecution."

68. In this context, it is to be noted that, almost all the Exhibits, i.e., Ex.P.3 to Ex.P.7 have been written by same person. Therefore it is highly doubtful whether the P.W.4, Investigating Officer who was the Inspector of Police had really verified the Ex.P.3, secret information and given such permission to the P.W.2 to lead the police team, as the very word "seen and permitted on 21.08.2009 at 9.30 hours" written by the same person, who prepared Ex.P.3, which creates suspicion in the minds of this Court.

69. Except P.W.2 and P.W.3, there is no other oral evidence in respect of the entire operation and the P.W.2 is the Sub Inspector of police, who is the search and seizure officer and P.W.3 is the Head Constable accompanied with P.W.2 and stood as mahazar witness. Only with the strength of these witnesses, whether the theory of prosecution can be accepted and believed is a yet another question. In order to accept and believe the theory of the prosecution at least, http://www.judis.nic.in 41 there must be a conclusive proof to show that, the contraband to the extent of 1 Kg 200 gms had been seized and had been produced before the trial Court.

70. In this context in Ex.P.10, i.e., Form 95, there is no whisper about the production of the contraband before the trial Court. However, the learned Judge in the Judgment impugned has merely stated that on careful perusal of Ex.P.10, i.e., Form 95, it was apparently clear that, the property was produced on 21.08.2009 before the Magistrate who has made endorsement as returned to be produced before the NDPS Special Court, proves that there is no delay in production of the property. But the learned Judge has not given any finding that, pursuant to the said endorsement of the learned Magistrate, the contraband had been produced before the trial Court and if so what is the proof to show that, contraband has been produced before the trial Court, as no such endorsement available in Ex.P.10.

71. The learned Judge also has not considered that, in between 21.08.2009 and 15.09.2009 whether the contraband had been kept in safe custody and if so, what is the document to show that it has been kept in safe custody between these period like safe custody Register / Malkhana Register and the relevant entries therein. http://www.judis.nic.in 42

72. All these aspects would go to show that, the trial Court has mechanically accepted the theory of the prosecution and has ultimately concluded that, the prosecution has proved their case, thereby he found the accused guilty and convicted him under Section 8(C) r/w 20(b) (ii) (B) of NDPS Act, 1985. It is further to be noted that, in the impugned Judgment, in the first page format under the heading "sentence or other order", and also at the operative part of the Judgment and conviction, it has been specifically mentioned that, the accused Danraj is convicted for the offence punishable under Section 8(C) r/w 20(b)(ii) (C) of NDPS Act, 1985. This itself shows that, the learned Judge, mechanically without applying his mind, has made the Judgment.

73. Though it is a settled proposition that, wrong quoting of a provision cannot vitiate the act or the decision, in the present case, since it is a punishment under Section 20(b)(ii) and the punishment varies from Clause (B) to (C), the correct provision should have been verified by the learned Judge before finalising the Judgment.

74. After analysing all these aspects both factually and legally, this Court is of the considered view that, the prosecution has not proved the case beyond all reasonable doubt. If the principle enunciated in number of decisions in this aspect, as has been quoted http://www.judis.nic.in 43 above, are applied to the facts of the present case, the irresistible conclusion would be that, the prosecution has failed to prove the case beyond reasonable doubt, especially in the context of following the procedure contemplated under Section 50 of the NDPS Act and also the production of the contraband before the trial Court with proof.

75. Additionally in this case, there is no records to show that, the contraband had been kept in safe custody for 26 days, i.e., between 21.08.2009 and 15.09.2009.

76. Because of all these lacunas, the prosecution theory failed, as the mandatory provisions have not been followed as pointed out above. Therefore the benefit of doubt shall go in favour of the accused. Hence, this Court has no hesitation to hold that, the Judgment impugned is liable to be interfered with and the appeal has to be allowed.

77. Accordingly, the Judgment and conviction, dated 16.05.2012 made in C.C.No.39 of 2010 on the file of the Special Judge / II Additional Special Court under NDPS Act, Chennai is hereby set aside and accordingly the accused is set at liberty. The bail bond, if any executed by the accused shall be discharged forthwith and the fine amount if any paid by him shall be refunded. http://www.judis.nic.in 44

78. However, in the interest of justice and to have a strict compliance of various provisions of the NDPS Act, especially in the context of seizure and production of the contraband and the safe custody of the same in between period, this Court wants to give the following directions to be followed strictly by the courts below and the prosecution in future :

(i) Whenever contraband is seized (Narcotic substance), the same shall be produced before the Magistrate Court, along with the remand report, under Form 95.

(ii) While such production is made before the Magistrate Court, the learned Magistrate shall ensure with the help of the Court staff and the prosecution that, the quantity of contraband claimed by the prosecution is available and in this regard, measurement shall also be taken under the supervision of the Magistrate.

(iii) After ensuring the quantity of the contraband by taking the measurement, the Magistrate can direct the prosecution to produce the contraband immediately, i.e., on the next working day before the trial Court.

(iv) Thereafter the prosecution shall keep the http://www.judis.nic.in contraband in safe custody by entering in such custody 45 Register / Malkhana Register with an endorsement of the police official who produced the same to the safe house and with the counter signature of the Guard who is incharge of the safe house.

(v) The prosecution then shall take all endeavour to produce the contraband as directed by the Magistrate to the trial Court as far as possible on the next working day and if the trial Court by that time does not receive documents and on that ground not in a position to receive the contraband, efforts shall be taken by the trial Court to get the case papers transmitted to itself immediately and at any rate, within a period of three days, the contraband shall be produced before the trial Court.

(vi) At the time of production of contraband before the trial Court, again, the same procedure as indicated above has to be undertaken by the learned trial Court Judge also to ensure the quantity of the contraband by taking the measurement and after ensuring the weight of the contraband, it shall be ordered to be kept in safe custody or to be disposed under the provision of the NDPS Act.

(vii) Once the accused is produced for remand and the contraband is produced at the first instance before http://www.judis.nic.in the Magistrate Court either on the date of seizure or within 46 24 hours from the time of seizure or arrest of the accused, the learned Magistrate concerned shall immediately on completion of such production of the accused and remand is made, take steps to transmit the case papers to the trial Court concerned.

(viii) Before the trial Court, facility to measure the contraband with fine balances should be made available with necessary staff for the aforesaid exercise of weighing and measuring the contraband.

(ix) In this regard, the State Government shall ensure availability of such facilities in each of such trial Court under the NDPS Act.

(x) If at all any delay is caused for unforeseen reason on the side of the prosecution to produce the contraband immediately to the Court, especially the trial Court, the contraband shall be kept in safe custody only at the safe custody room or locker specifically meant for this purpose.

(xi) In this context, the State shall ensure that, every police station in the State of Tamil Nadu shall have such a safety locker or safe custody of contraband, where it must also be ensured with a safe custody Register being maintained where every entrustment of contraband or http://www.judis.nic.in seized material shall be entered into by the incharge of the 47 safety room, which should be counter signed by the prosecuting officer of the case concerned and the same procedure shall be adopted when the contraband and seized goods are taken out from the safety room.

(xii) Till such time, such a facility is made available in all the police station in the State of Tamil Nadu, the State Government must ensure that safe custody rooms or places with police Guard by 24x7 is available and in this context, the storage places one in each zone as proposed by the State Government pursuant to the direction of the Hon'ble Supreme Court in Crl.A.No.652 of 2012 as indicated in the status report of the Director General of Police, dated 23.03.2018 referred to above, shall be constructed at the earliest and till such storage places are made ready, alternative arrangements of storage places for safe custody of seized articles and contrabands shall immediately be made by the State Government and in this regard within a period of three months from the date of receipt of a copy of this direction, such arrangement shall be made available by the State Government and a compliance report shall also be filed by the Director General of Police, Government of Tamil Nadu before this Court.

http://www.judis.nic.in 48 R.SURESH KUMAR, J.

tsvn For filing compliance report of the aforesaid directives, by the Director General of Police, Government of Tamil Nadu, post this matter on 10.06.2019.

13.03.2019 Index : Yes Speaking Order tsvn To 1. The Special Judge,

II Additional Special Court under NDPS Act, Chennai.

2. The Inspector of Police K6, T.P.Chatram Police Station, Chennai.

3. The Public Prosecutor High Court of Madras, Chennai.

Judgment in Crl.A.No.319 of 2012 http://www.judis.nic.in