This appeal has been filed against the judgment dated 09.04.2013, passed in C.C.No.17 of 2004 by the Special Judge, I Additional Special Court for NDPS Act Cases, Chennai.
2. It is the case of the prosecution that at 5.00 p.m. on 15.01.2003, Vasudevan [P.W.2], Sub-Inspector of Police,T.P.Chatram Police Station, received information over phone that one Rangan, S/o Mani will be bringing ganja by an autorickshaw bearing Registration No.TN-01-T-4699 to the junction of East Club Road and Cemetry Road, for sale. Vasudevan [P.W.2], recorded the information vide Ex.P.3 and sent the same to Selvaraj [P.W.4], Inspector of Police, who permitted him to proceed further in the case. Vasudevan [P.W.2], along with Samuvel [P.W.3] Head Constable and police party, went to the said place and maintained surveillance.
[a] On being identified by the informant, they intercepted the autorickshaw bearing Registration No.TN-01-T-4699, which was driven by the accused and introduced themselves and gave a written option under
Section 50 of the Narcotic Drugs and Psychotropic Substances Act [for short "the NDPS Act"], for personal search in the presence of a Gazetted Officer or a Magistrate, vide Ex.P.4, which option was declined by the accused. The accused took out a bag from the rear seat of the autorickshaw and handed over the same to the police party and the bag was found to contain ganja. On weighing, it was found to be of 3.500 kgs. Vasudevan [P.W.2] drew two samples of 50 gms. each and sealed the samples and the main contraband with NIB seal. The contraband and the autorickshaw were seized under the cover of Mahazar [Ex.P.5] and the accused was placed under arrest by serving on him the Arrest Memo [Ex.P.6] at 7.30 p.m. Thereafter, he was brought to the Police Station, where, Vasudevan [P.W.2] submitted a report under
Section 57 of the NDPS Act [Ex.P.9] to Selvaraj [P.W.4], Inspector of Police.
[b] At the Police Station, a case in Cr.No.56 of 2003 was registered on 15.01.2003 at 8.00 p.m. under
Section 8(c) read with 20(b) of the NDPS Act, against the accused. The accused and the seized contraband were produced before the jurisdictional Magistrate for remand, who remanded the accused to custody.
[c] Investigation of the case was taken over by Selvaraj [P.W.4], Inspector of Police, who gave a requisition to the Special Court for NDPS Act Cases, for sending one sample to the Tamil Nadu Forensic Science Laboratory for analysis and report. The sample so sent was examined by Devaki [P.W.1], who, in her evidence as well in her report [Ex.P.2], has stated that the sample tested answered positive for ganja. After completing the investigation, Selvaraj [P.W.4], Inspector of Police, filed a Charge Sheet in C.C.No.17 of 2004 before the Special Court for NDPS Act Cases against the accused for the offence under
Section 8(c) read with 20(b)(ii)(B) of the NDPS Act.
3. On the appearance of the accused, he was furnished with the copies of the relied upon documents under
Section 207 Cr.P.C. and a charge under
Section 8 (c) read with 20(b)(ii)(B) of the NDPS Act was framed against him. When questioned by the trial Court, he pleaded not guilty.
4. To prove the case, the prosecution examined 4 witnesses, marked 10 exhibits and 3 material objects. When the accused was questioned under
Section 313 Cr.P.C. about the incriminating circumstances appearing against him, he denied the same. No witness was examined on behalf of the accused nor any document was marked.
5. After hearing either side and analysing the evidence on record, the trial Court, by judgment dated 09.04.2013, convicted the accused for the offence under
Section 8(c) r/w 20(b)(ii)(B) of the NDPS Act and sentenced him to undergo two years Rigorous Imprisonment and to pay a fine of Rs.15,000/-, in default to undergo Rigorous Imprisonment for a further period of six months. Challenging the said conviction and sentence, this appeal has been filed.
6. Heard Mr.T.S.Srinivasan, learned counsel for the appellant/accused and Mr.K.Madhan, learned Government Advocate (Crl.Side) appearing for the State.
7. This appeal deserves to be allowed on the short point, which is as under:
It is the specific case of Vasudevan [P.W.2] that the accused was intercepted at 6.00 p.m. and after recovery of the contraband, the same was sealed and seized under the cover of Mahazar [Ex.P.5] at 7.00 p.m. The accused was arrested at 7.30 p.m. and he was brought to the Police Station at 8.00 p.m. and the FIR [Ex.P.8] was registered only thereafter, as Cr.No.56 of 2003.
8. Learned counsel for appellant/accused submitted that even on the seized articles, the Police have stuck a label, which shows the crime number. In other words, learned counsel submitted that the seizure was at 7.00 p.m. and the FIR was registered at 8.00 p.m. and therefore, the mentioning of the crime number in the label that was stuck on the contraband at 7.00 p.m. makes the entire recovery suspect. Similar grounds were taken in other cases and this Court had rejected the submission on the ground that the defence had failed to confront the Seizing Officer with this alleged contradiction. However, in this case, Vasudevan [P.W.2], in his cross-examination, has stated as follows:
"tHf;F brhj;jpy; cs;s tpgu nygps; rk;gt ,lj;jpy; itj;J jahh; bra;J xl;lg;gl;lJ vd;why; rhp/ me;j tpgu nygpspy; Fw;w vz; kw;Wk; vd;ogpv!; rl;lg;gphpt[fs; Fwpg;gplg;gl;Ls;sd vd;why; rhp. epiyak; te;j gpwF jhd; Kjy; jftywpf;if gjpt[ bra;ag;gl;lJ vd;why; rhp. tpgu nygpspy; Fw;w vz; kw;Wk; vd;ogpv!; rl;lg;gphpt[fs; Fwpg;gplg;gl;ljhy; fhty; epiyaj;jpw;F te;J gpd;dpl;L jahh; bra;ag;gl;lit vd;why; rhpay;y."
9. Vasudevan [P.W.2] has clearly admitted that the labels were affixed on the contraband at the place of seizure and he has also admitted that he has given the crime number on the labels. He has also admitted that the FIR [Ex.P.8] was registered only subsequently and he has not given any plausible explanation in his evidence, thereby making the very recovery doubtful, the benefit of which should go to the accused.
P.N.PRAKASH, J.
gms In view of the above, this appeal is allowed. The conviction and sentence imposed by the trial Court on the accused in C.C.No.17 of 2004 by the Special Judge, I Additional Special Court for NDPS Act Cases, Chennai, are hereby set aside. The bail bond, if any, executed, shall stand discharged.
20.11.2017 To
1.The Inspector of Police K6, T.P.Chatram Police Station Chennai.
2.The Special Judge, I Additional Special Court under NDPS Act, Chennai.
3.The Public Prosecutor, High Court, Madras.
Crl.A.No.304 of 2013