It is the case of the prosecution that on 02.06.2011, PW1-Ms.R.Selvarani, Sub Inspector of Police, NIBCID, received information over phone at 10.00 a.m from her informant that one Bhavani, W/o.Sasikumar, will be coming between 11.30a.m. and 02.00p.m. to Walltax Road near Central Railway Station, with ganja for sale. PW1-Selvarani recorded the information in Ex.P.1 and submitted the same to PW5-Rajendran, Inspector of Police, NIBCID, who permitted her to proceed further with the case. Accordingly, PW1 along with her informant, PW2-C.Kavitha, Women Police Constable and PW3-Subramani, Head Constable, went to the said place and maintained surveillance. On being shown by the informant, PW1-R.Selvarani intercepted Bhavani and introduced themselves. PW1 gave her Search Notice vide Ex.P.2 under Section 50 of the NDPS Act, informing her of her right to be searched before a Gazetted Officer or Magistrate, which the accused declined.
2.The accused was carrying a bag in red colour and when the same was checked, it was found to contain ganja. PW1-Selvarani and the police party weighed the ganja and it was found to be 2.5 Kgs. PW1-Selvarani drew two samples of 50g each and kept the samples in two separate covers and sealed them with NIB seal. The main contraband was also sealed in the same bag in which the ganja was found. The main contraband was marked as M.O.2 and the samples were marked as M.O.1 and M.O.3. PW1-Selvarani seized the contraband under the cover of Ex.P.3-Mahazar. The accused was arrested at 01.30 PM on 02.06.2011 and she was taken to the Police Station, where PW5-Rajendran, Inspector of Police, registered a case in Crime No.49 of 2011 on 02.06.2011 for the offence under
Section 8(c) read with 20 (b) (ii) B of the NDPS Act and FIR was marked as Ex.P.8. The accused and the seized contraband were sent along with a remand application to the learned XVI Metropolitan Magistrate, George Town, Chennai, who remanded the accused to judicial custody. The seized contraband and the samples were thereafter produced before the learned Principal Special Judge, Special Court under E.C. & NDPS Act, with a request to the Court to send one sample to the Tamil Nadu Forensic Science Laboratory for examination. PW4-V.K.Selvarani, Chemical Examiner, tested the sample and in her report (Ex.P.7), she has stated that the sample was ganja.
3.PW5-Rajendran, Inspector of Police, completed the investigation and filed a charge sheet against the accused in C.C.No.2 of 2012 before the learned Principal Special Judge, Special Court under E.C. & NDPS Act for offence under
Section 8(c) read with 20 (b) (ii) B of the NDPS Act.
4.On the appearance of the accused, she was furnished with the copies under
Section 207 of CrPC. A charge under
Section 8(c) read with 20 (b) (ii) B of the NDPS Act was framed against the accused and she pleaded not guilty.
5.In order to prove the case, the prosecution examined five witnesses and marked nine documents and three material Objects. The accused was questioned about the incriminating circumstances appearing against her under
Section 313 of CrPC and she denied the same. Neither any witness was examined on behalf of the accused nor any document was marked.
6.After considering the evidence adduced by the prosecution and hearing either side, the trial Court, by Judgment dated 26.07.2013 in C.C.No.2 of 2012 convicted the accused under
Section 8(c) read with 20 (b) (ii) B of the NDPS Act and sentenced her to undergo rigorous imprisonment for three months and to pay a fine of Rs.20,000/-. Challenging the conviction and sentence, the accused has filed the present appeal.
7.Heard the learned counsel appearing for the appellant/accused and the learned Government Advocate (Criminal Side) appearing for the respondent.
8.This appeal deserves to be allowed on the short ground that the very substratum of the prosecution case has been shaken, which is set out below. It is the specific case of the prosecution that PW1-Selvarani received information from her informant that the accused is coming to Walltax Road with ganja. It is also the evidence of PW1-Selvarani, PW2-Kavitha and PW3-Subramaniam that information was received about the accused around 10.00 a.m. on 02.06.2011 and the same was recorded vide Ex.P.1 and only thereafter, the police party went to Walltax Road and maintained surveillance. PW1-Selvarani has also stated that on being shown by her informant, the accused was intercepted but whereas the remand application, that has been filed before the learned XVI Metropolitan Magistrate, George Town, Chennai, on 02.06.2011, reads as follows:
,d;W 02.06.2011-k; njjp fhiy 11.30 kzpf;F brd;id nghijg; bghUs; Ez;zwpt[ gphptpd; cjtp Ma;thsh; jpUkjp.Mh;.bry;tuhzp kw;Wk; ghh;l;ofs; cjtpa[ld; nkny Fwpg;gplg;gl;l vjphpia brd;id brd;l;uy; uapy; epiyak; thy;lhf;!; nuhL EiHthapy; mUfpy; re;njfj;jpd; nghpy; epWj;jp tprhhpf;f mth; jhd; itj;jpUe;j rpfg;g[ epwj;jpy;; fUg;g[ epw g{ oird; nghl;l igapy; 2.500 fpnyh f";rh itj;jpUe;jhh;. nkw;go tHf;F brhj;ij rhl;rpfs; 1.jpU.o.Rg;gpukzp/ j.fh.1227 (2)jpUkjp.rp.ftpjh/ bg.fh.4439/ ngh.bgh.E. gphpt[/ brd;id Mfpnahh; Kd;g[ 12.00 kzpf;F cjtp Ma;thsh; jpUkjp.Mh;.bry;tuhzp mth;fs; ifg;gw;wpa[s;shh;. mjd; gpd; murpd; vt;tpj chpknkh mDkjpnah ,y;yhky; f";rh itj;jpUe;jjw;fhf/ rl;lg;goahd midj;J tpjpKiwfisa[k; gpd;gw;wp vjphpia 13.30 kzpf;F ifJ bra;Jk;/ ifJ bra;tjw;fhd fhuzj;ij tpsf;fpf; Twpa[k; ifg;gw;wpa brhj;Jld; epiyak; te;J gphpt[ 57 NDPS d; goahd tphpthd mwpf;ifa[k;/ vjphp kw;Wk; tHf;F brhj;ija[k; kw;w Mtz';fSld; nky; eltof;iff;fhf vd;dplk; 14.00 kzpf;F rkh;g;gpj;jhh;.(emphasis supplied).
9.That apart, even in the history of the case, that was prepared by the Inspector of Police, it is stated as follows:
,d;W 02.06.2011k; njjp fhiy 11.30 kzpf;F brd;id brd;l;uy; uapy; epiyak; thy;lhf;!; nuhL EiHthapy; mUfpy;/ brd;id nghijg; bghUs; Ez;zwpt[ gphptpd; cjtp Ma;thsh; jpUkjp.Mh;.bry;tuhzp kw;Wk; ghh;l;ofs; cjtpa[ld; vjphp gthdp/ bg/t.29/11, f/bg.rrpFkhh;/ vz;.54/ 3tJ flw;fiu rhiy/ nut;/ brd;id-1 vd;gtiu re;njfj;jpd; nghpy; epWj;jp tprhhpf;f mth; jhdhf Kd;te;J mtuJ tyJ ifapy; itj;jpUe;j rpfg;g[ epwj;jpy; fUg;g[ epw g{ oird; nghl;l igapy; 2.500 fpnyh f";rh itj;jpUe;jij xg;g[f;bfhz;lhh;.(emphasis supplied).
10.From a reading of the above, it is seen that the accused was intercepted on suspicion and her bag was checked, but whereas the evidence of PW1-Selvarani and the other witnesses is to the effect that on prior information and on showing of the informant, the accused was intercepted at Wall Tax Road near Central Railway Station. Under
Section 43 of the NDPS Act, the Officers have the power to intercept a person in a public place and check his/her baggage. However, in this case, the prosecution has taken a consistent stand that they had intercepted the accused on prior information but whereas important records submitted to the Court shows otherwise. On the contrary, the prosecution on one hand has taken a specific stand that on prior information they had intercepted the accused but whereas in the document filed in the Court like remand application and history of the case, it is stated that the accused was intercepted on suspicion. Bearing in mind, if the Arrest Card is seen, it shows that the accused was arrested at 11.30 am on 02.06.2011 but whereas PW1-Selvarani has stated that the accused was arrested only at 01.30 PM. In such view of the matter, this Court is of the view that the conviction and sentence imposed on the accused deserves to be set aside.
In the result, the Criminal Appeal is allowed and the conviction and sentence imposed on the appellant / accused by the learned Principal Special Judge, Special Court under E.C. & NDPS Act, Chennai, in C.C.No.2 of 2012, dated 26.07.2013, is set aside and the appellant / accused is acquitted from the charges. The fine amount, if any, paid by the appellant/accused, is directed to be refunded. The bail bond, if any, executed by the appellant / accused, shall stand cancelled.
22.11.2017 Index :No Internet :No mps To The Principal Special Judge, Special Court under E.C. & NDPS Act, Chennai.
P.N.PRAKASH,J, mps Crl.A.No.520 of 2013 22.11.2017