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Judgment
K. Gnanaprakasam, J.—The Appeal in C.A. No. 981/95 is directed as against the order dt: 1.11.95 passed by the Special Sessions Judge, Madurai in C.C. No. 265/95 convicting the Appellant accused for an offence u/s 8 (c) read with 18 of the N.D.P.S. Act 1985 and sentenced him to undergo Rigorous Imprisonment for 10 years and also to pay a fine of Rs. 1,00,000/- in default further shall undergo R.I. for three years.
The Appeal in C.A. No. 983/95 is directed as against the order dt: 1.11.95 passed by the Special Sessions Judge, Madurai in C.C. No. 264/95 convicting the Appellant/accused for an offence u/s 8 (c) read with 18 of the N.D.P.S. Act 1985 and sentenced him to undergo rigorous imprisonment for ten years and also to pay a fine of Rs. 1,00,000/- in default further shall undergo R.I. for three years.
Both the appeals arise out of the offence said to have been committed on one and the same date and time. As there were two accused, it was tried separately. John Kennedy @, Abdul Khader who was the accused in C.C. No. 265/95, is the Appellant in C.A. 981/95.
Ramalingam who was the accused in C.C. No. 264/95, is the Appellant in C.A. No. 983/95.
The learned Advocate appearing for the Appellants in both the cases is the same and he had also submitted that both the appeals may be heard together and common orders may be passed, to which the learned government Advocate appearing for the respondent had also given his consent. Hence, both the appeals were heard together.
C.A. No. 981/95: - John Kennedy (Accused).
The case of the prosecution, in this case as stated, that on 23.9.94, at about 8.30 a.m. Natarajan, P.W.1, Sub-Inspector of Police, N.I.B. Madurai Branch received a credible information through informant that one Kennedy i.e. the accused who was residing at Nelpettai, 4 Attumandai Pottal 4th lane, Madurai and one Ramalingam who was residing at 99, Vidatha Kulam, Oomachi Kulam. Madurai were going to sell heroin near Wakf Board College. K.K. Nagar. Madurai. The said information was reduced into writing and the same was marked as Ex.P.1. P.W.1, Natarajan submitted the information to the Inspector of Police, P.W.3. Dhayalu for necessary action. On receipt of the said information, the Inspector of Police. P.W.3, Dhayalu the Sub-Inspector of Police. P. W. 1, Natarajan along with their party and the informant were having a watch at Wakf Board College gate. K.K. Nagar, Madurai. At about 10.00 a.m. two persons were crossing them and they w ere identified by the informant. At that time, two other persons viz.. Chandran and Muniandi were also crossing that side. P.W.3. Dhayalu informed them about the information received by him and requested them to be witnesses. But they refused to be witnesses. Thereafter. P.W.3. Dhayalu requested P.W. 1. Natarajan and Head Constable 1176 to be witneeses, and they accepted it. In their presence. P.W.3. Dhayalu interecepted the appellant/accused and Ramalingam and enquired about their names and addresses. Both the persons had given their names and addresses to him and further they had stated that they purchased Heroin at (sic) from a person and taking them to sell in Madurai. P.W.3, Dhayalu, Inspector of Police asked them in writing whether they wanted to be searched before the Judicial Magistrate or by the Gazetted Officer. The accused herein declined the offer and agreed to be searched before the Inspector of Police, himself. The said letter in writing was marked as Ex.P.2 and the same was duly signed by the appellant/accused, the Inspector of Police, P.W.3 and the Head Constable No. 1176. Then PW.3. Dhayalu, Inspector of Police searched the appellant/accused. The appellant/accused had taken out a packet wrapped with polythene paper which was unfolded. The Inspector of Police, P.W.3. Dhayalu found that the accused/appellant was in possession of 60 grams heroin without any valid permission or licence granted by the Government. P.W.3. Dhayalu, Inspector of Police explained the nature of the case and his powers, then he arrested him.
Out of the contraband seized from the accused/appellant, two ten grams were taken for chemical analysis. These two ten grams were wrapped in a polythene paper covered with a brown cover and tied with a thread. NIB Seal was also affixed and separate markings were given as S.3 and S.4. The remaining pail of the contraband weighing 40 grains was packed and NIB Seal was also affixed. The said packet was marked as M.O.1. The seizure of contraband was recorded under a cover of mahazar and the same was duly signed by the Inspector of Police. P.W.3, Dhayalu the Sub-Inspector of Police. P.W. 1, Natarajan and the Head Constable. No 1176 The contentions in the said mahazar were also read over to the accused and a copy of the same was given to him. He acknowledged the receipt of the same which was marked as Ex.P.3.
The appellant/accused was taken to NIBCID Officer. Madurai Police Station a case was registered against him in Crime No. 106/94 u/s 18 read with 8 (c) of the N.D.P.S. Act 1985. P.W.3. Dhayalu Inspector of Police, forwarded the First Information report to the court and the same was marked as Ex.P.6. He also sent a report to the Deputy Superintendent of police, N.I.B.C.I.D., Madras under the provision of Section 57 of the N.D.P.S. Act 1985, which was marked as Ex.P.7.
P.W.3, Inspector of Police gave a requisition to the court to send the sample packet for chemical analysis. Accordingly, the court sent the sample packet for chemical analysis to P.W.2, Subbulakshmi. She had examined the contents and given a report stating that the substances analysed by her was heroin. The said report was marked as Ex.P.5. That on 1.11.94 P.W.3 Dhayalu, Inspector of Police was transferred and one Manoharan. P.W.4 had taken charge and he proceeded with the investigation. After completing the investigation, he had filed a charge sheet against the accused/appellant.
The prosecution had examined four witnesses and marked Ex.P.1 to P.8. Series 1 to 3 were also marked.
The trial Court having considered all the aspects of the case had come to the conclution that the appellant/accused committed the offence charged against him and sentenced him to undergo Rigorous Imprisonment for 10 years and also to pay a fine of Rs. 1,00,000/- in default further shall undergo R.I. for 3 years. As against the said order, the appellant/accused preferred an appeal in C.A. 981/95.
C.A. No. 983/95 : Ramalingam (Accused)
The case of the prosecution in this case, as stated that on 23.9.94, at about 8.30 a.m. P.W.1 Natarajan, Sub Inspector of Police. N.I.B. Madurai Branch received a credible information through one informant that one Ramalingam i.e., the accused/appellant herein who was residing at 99. Vidatha Kulam, Oomachi Kulam, Madurai and one Kennedy who was residing at Nelpettai, 4, Attumandi Pottal 4th lane. Madurai were going to sell heroin near Wakf Board College, K.K. Nagar. Madurai. The said information was reduced into writing and the same was marked as Ex.P. 1. P.W. 1, Natarajan submitted the information to the Inspector of Police, P.W.3, Dhayalu for necessary action. On receipt of the said information, the inspector of Police, P.W.3, Dhayalu, the Sub-Inspector of Police, P.W.1, Natarajan along with their party and the informant were having a watch at Wakf Board College gate, K.K. Nagar Madurai. At about 10.00 a.m. two persons were crossing them and they were identified by the informant. At that time, two other persons viz., Chandran and Muniandi were also crossing that side P.W.3, Dhayalu informed them about the information received by him and requested them to be witnesses. But, they refused to be witnesses. Thereafter, P.W.3, Dhayalu, requested P.W.1, Natarajan and Head Constable 1176 to be witnesses. They agreed to be witnesses. In their presence, P.W.3, Dhayalu intercepted the appellant/accused Ramalingam and John Kennedy and enquired about their names and addresses. Both the persons had given their names and addresses to him and further they had stated that they purchased Heroin at Tuticorin from a person and taking them to sell in Madurai. P.W.3. Dhayalu, Inspector of Police asked them in writing whether they wanted to be searched before the Judicial Magistrate or by the Gazetted Officer. The accused herein declined the offer and agreed to be searched before the Inspector of Police, himself. The said letter in writing was marked as Ex.P.2 and the same was duly signed by the appellant/accused, the Inspector of Police. P.W.3 and the Head Constable No. 1176. Then P.W.3, Dhayalu. Inspector of Police searched the appellant/accused. The Appellant/accused had taken out a pocket wrapped with polythene paper which was unfolded. The Inspector of Police. P.W.3. Dhayalu found that the accused/appellant was in possession of 60 grams heroin without any valid permission or licence granted by the Government. P.W.3, Dhayalu, Inspector of Police explained the nature of the case and his powers then he arrested him.
Out of the contraband seized from the accused/appellant two ten grams were taken for chemical analysis. These two ten grams were wrapped in a polythene paper covered with a brown cover and tied with a thread. N.I.B. seal was also affixed and separate marking were given as S. 1 and S.2. The remaining part of the contraband weighing 40 grams was packed and NIB seal was also affixed. The said packet was marked as M.0.1. The seizure of contraband was recorded under a cover of mahazar and the same was duly signed by the Inspector of Police, P. W.3, Dhayalu, the sub-Inspector of Police, P.W.-1. Natarajan and the Head Constable, No. 1176. The contents of the said mahazar were also read over to the accused and a copy of the same was given to him. He acknowledged the receipt of the same which was marked as Ex.P.3.
The appellant/accused was taken to N.I.B.C.I.D. Officer, Madurai Police Station and a case was registered against him in Crime No. 105/94 u/s 18 read with 8(C) of the N.D.P.S. Act 1985. P.W.3, Dhayalu Inspector of Police forwarded the First Information Report to the Court and the same was marked as Ex.P.6. He also sent a report to the Deputy Superintendent of Police, N.I.B.C.I.D. Madras under the provision of section 5 7 of the N.D.P.S. Act 1985, which was marked as Ex. P. 7.
The Inspector of Police, P.W.3, gave a requisition letter to the Court to send the sample packet for chemical analysis. Accordingly, the court sent the sample packet for chemical analysis to P.W.2. Subbulakshmi. She had examined the contents and given a report stating that the substances analysed by her was heroin. The said report was marked as Ex.P.5. That on 1.11.94, P.W.3, Dhayalu. Inspector of Police was transferred and one Manoharan, P.W.4 took charge and he took up the investigation. After completing the investigation, he has filed a charge sheet against the accused/appellant.
The Prosecution had examined four witnesses and marked Ex.P.1 to P.8. M.O. Series 1 to 3 were also marked.
The Trial Court having considered all the aspects of the case had come to the conclusion that the appellant/accused committed the offence charged against him and sentenced him to undergo Rigorous Imprisonment for 10 years and also to pay a fine of Rs. 1,00,000/- in default further shall undergo R.I. for three years. As against the said order, the appellant/accused preferred an appeal in C.A. No. 983/95.
The first and foremost submission made by the learned senior Advocate for the Appellant is that the place of arrest was not shown in the FIR. That in order to find out the truth of the same, I have perused the original FIR and the same was received by the court on 23.9.94 itself which is in a printed form. Under column 3 having the heading
under that heading it was written as hereunder:
As such the contention of the teamed senior advocate for the appellant does not stand to the scrutiny of the records by this Honourable Court.
The learned Advocate further contended that in the F.I.R. the date and time of the arrest was shown as 23.09.1994 at about 12.15 noon, but in the charge sheet, the time was shown as 8.45 a.m. on 23.09.1994. No doubt the time was shown as 8.45 a.m. which time was the time at which the Inspector received the information, from Sub- Inspector of police C.I.D. and the same is evidenced on seeing Ex.P.1. The Court personnel, in the Special and Sessions Court, who had filled up the printed form of the charge sheet, had made an error and the correct time of the arrest of the appellant was shown as 12.15 noon in the remand report, which was sent by the Inspector of Police to the Sessions court on 23.09.1994 itself. As such, the correct time of the arrest was 12.15 noon. In no way it is going to the root of the case of the prosecution. As such, the alleged discrepency cannot at all be stated was prejudicial to the case of the accused and the same was trivial in nature.
The learned Senior Advocate further submitted that the articles sent under form No. 95 was not sent without any delay and the same is not correct. The original records were perused by me and I find that the Court received the same on 23.09.1994 itself. But the same was returned by the Court on the same day, stating that, "Property to be produced in a wooden box". As such, the said contention of the Appellant is not ensuring any benefit to the appellant.
The learned Senior Advocate appearing for the appellant had further argued that the samples were sent to the chemical analyst at a belated stage and the same is creating a doubt to the extent of the possibility of the samples could have been tampered with. In this case, the Inspector of Police, NIB/C.I.D. had sent the sample to the Sub-Court on 23.09.1994 itself with a requisition to the Court to send the samples for analysis and the said requisition memo was marked as Ex.P.4. Therefore, the sample was in the custody of the Court, and the Court had sent the same to the chemical analyst along with a covering letter dated 27.09.1994. The said sample was received by the analyst on 28.09.1994. The chemical analyst had given a report wherein it was stated as hereunder:
The said report was marked as Ex.P.5. In this connection, the learned Senior Advocate has referred the decision reported in 1997 (2) Crime 518 , wherein the seized articles and sealed samples were deposited with Malkana of Police Station and sent to Forensic Science Laboratory after six days and that therefore the Court had come to the conclusion, that adverse inference has got to be drawn. In this case, the samples were not deposited in the police station, but on the other hand, it was sent to the Court on the same day of the seizure and hence, this decision is not applicable to the case on hand.
The learned Senior Advocate also referred another judgment reported in 1996 Crl.L.J. 898 , wherein it is stated that the seized articles were produced before the Court after one month and eight days. Further it was stated that no word of explanation was given as to where the seized articles were kept during the said period and therefore, the Court had to entertain the doubt, as to what had transpired in the intervening period. In this context, the Learned counsel appearing for the respondent pointed out, that the samples were taken on the spot and N.I.B. seal was also affixed and the same was sent to the Court on the day itself and that therefore the question of delay, did not at all arise in this case. Hence, the facts, in this case, are different than that of the case referred above and hence, the decision is of no help to the Appellant.
The learned Advocate appearing for the Appellant/accused also submitted that the procedure to be adopted u/s 50(1) of the N.D.P.S. Act in the matter of search was not followed in this case and therefore, the case of the prosecution was vitiated. In this connection he had referred the judgment reported in 1997 L.W. (Crl.) 6 S.C . (State of Punjab v. Labh Singh), 1996 L.W. (Crl.) 337 (S.C.) Raghbir Singh v. State of Haryana and also another judgment reported in 1996 Crl.L.J. 3140 (Ajim Khan Vs. The State). In the former case, the Apex Court had laid down that the accused had the right to be informed of his right, to be searched, in the presence of Gazetted Officer and the search officer invariably would conduct the search, subserving the salutary right given u/s 50 of the N.D.P.S. Act, 1985. Each case should be considered in the aspect of the fact in which, the contraband was seized. That in the later case, it was stated that Section 50 of the Act requires, that the person to be searched has got to be informed whether he would like to be searched before the Gazetted Officer or the Magistrate. In the said case, the option was given to be searched only before the Gazetted Officer and the said offer was partial and that therefore, the partial offer violates Section 50 of the N.D.P.S. Act, 1985. But, in our case, the option to be searched before the Magistrate or before the Gazetted Officer was given in writing to the accused in the form of question and answer and he had also given his consent in writing as follows:
and duly signed by the accused before the Inspector of Police and also witnessed by the police personnel and the same was marked as Ex.P.2. Hence, it cannot be construed that the mandatory provisions of Section 50(1) of the N.D.P.S. Act 1985 was not complied with.
The learned Advocate appearing for the appellant has streneously further contended that no effort was taken by the prosecution to procure the independent witness and therefore the entire search was vitiated and the conviction inflicted upon the accused has got to be set aside. In this view, he had referred to the judgment reported in 1996 Crl.L.J.4355 (Jagtar Singh Vs. State of Punjab) wherein it was held that
There is not an iota of evidence on the record to show that any effort was made by SI Major Singh (P.2) to procure independent public persons before conducting the search of the appellant.
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The Court will be extremely reluctant to uphold the prosecution case which is solely based on recovery made as a result of search not witnessed by independent and respectable persons unless it was unreasonable and improbable to produce the presence of such witnesses.
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This serious omission on the part of the said Investigating Officer in itself is enough to cause a grave suspicion as regards the alleged recovery from the possession of the appellant. For this reason alone, the conviction and sentence of the appellant are liable to be set aside.
In the case cited 1996 Crl.L.J. 3140 (Ajim Khan Vs. The State) the learned judge held that
Although as per the prosecution the investigating officer had prior secret information, there has been non-compliance with the requirements of Section 42 of the Act. Moreover no serious effort Was made to join any witness from the public despite the fact that the Investigating Officer had all the time at his elbow and despite also the fact that the place of recovery was at a bus stand and near to a residential locality.
In the judgment reported in 1996 (3) Crimes 279 (sic) , it has been held that
According to S.I. Surat Singh (PW1) and S.I. Major Singh (PW2), the place of occurrence is situated near village Dhippanwali and the bus stand is located at a distance of about 8 to 10 Kms, from the place of recovery. It is not disputed that the police station in question is situated at a distance of 18 Kms. from the place of recovery. According to the said witnesses Constable Tehal Singh was sent to bring scale from village Dhippanwali and also to bring independent public person from the place to witness the search of the appellant But, strange enough, the prosecution has not proved and examined constable Tehal Singh to corroborate the witnesses of these two witnesses. Therefore, the testimony of S.I. Surat Singh PW (1) and S.I. Major Singh (PW. 2) to the effect that constable Tehal Singh had informed that no person from village Dhippanwali was ready to join in the investigation is merely hearsay and cannot be taken into consideration at all. There is not an iota of evidence on the record to show that any effort are made by S.I. Major Singh (PW 2 to procure independent public persons before conducting the search of the appellant.... The Court will be extremely reluctant to up hold the prosecution case which is solely based on recovery made as a result of search not witnessed by independent and respectable persons unless it was unreasonable and improbable to procure the presence of such witnesses.... For this reason alone, the conviction and sentence of the appellant are liable to be set aside
In the judgment reported in 1996 (3) Crime 400 (Gurdial Ram Vs. State of Haryana) it has been held that
It is apparent from aforesaid that no public witness had been joined. Joining of public witnesses is not mandatory''. But to lend credibility, public witnesses must be joined in the search that is to be effected. This has been accepted as a rule of prudence rather than of law.
In our case P.W.1 had requested Chandran and Muniandi who were passersby at the time of intercepting the appellant/accused to be witnesses, and they had refused to be witnesses. Thereafter, P.W.3 requested P.W.1 and Head Constable 1176 to be witnesses. They accepted to be witnesses. Thereafter, the search was effected. Here, I wish to point out that in our case, P.W. 1 had received the information at 08.30 a.m. itself, and he had passed on the information to P.W.2, Dhayalu, Inspector of Police and they had enough time to procure respectable and independent witnesses. But no iota of effort was taken to procure independent witnesses which throws a great deal of doubt in the non-examination of the independent witnesses. Hence, I am constrained to accept the views expressed in the judgments referred supra and to point out that the police officers have not taken any care to conduct the search, in the presence of independent witnesses. Since, I am extremely reluctant to uphold the prosecution case, which is solely, based on recovery made as a result of search, not witnessed by independent and respectable persons. Hence, I come to the conclusion that the prosecution has not proved its case as it is expected to be done.
The learned Senior Counsel appearing for the appellant further contended that in this case, the complaint was given by P.W.3 and he himself had conducted the investigation and therefore, the complainant himself cannot be an investigating officer and because of that, the entire prosecution is vitiated. To support his contention, he relied upon the judgment reported in 1996 (3) Crimes 259 (Risala Vs. State of Haryana) wherein it was considered at the time of granting bail to be accused.
Per contra, the learned Government Advocate has cited the judgment reported in 1996 (3) Crime 57 (Deep Chand Vs. State Of Rajasthan) wherein it was held that
Mr. Khatri has laid great stress on the fact that P.W.6 Balwant Rai, who effected the alleged recovery of the contraband Ganja and drew the FIR Ex.P.11 as the complainant, has also investigated the case and, therefore, the basic principle of criminal trial that a complainant cannot be the investigator has been brutally offended and that on this count alone, the trial stands vitiated and the appellant deserves to be acquitted. For this, he has placed reliance on the cases of Sariya Vs. The State of Rajasthan, , Sahi Rani Vs. The State of Rajasthan (1993 Crl.L.R. Raj, 281), Gyan Chand Vs. The State Of Rajasthan (1993 Crl.L.R.(Raj 283 Shahjad Vs. The State of Rajasthan (1994 C.L. R.(Raj) 684 and Jagannath Vs. The State of Rajasthan (1994 Crl.L.J 709 (Raj), wherein it has been held that the basic principle of criminal trial is that the complainant cannot investigate the trial; that investigation should be carried out by an independent person, who is not in any way party to the proceedings and that it is a basic and serious informity which vitiates the trial as well as the conviction of the accused. It will suffice to mention that the Apex Court in recent judgment passed in State of Punjab Vs. Balbir Singh, (supra) has clearly observed as hereunder:
When a police officer carrying on the investigation including search, seizure or arrest, empowered under the provisions of the Cr.P.C. conies across a person being in possession of the narcotic drug or psychotropic substances then two aspects will arise. If he happens to be one of those empowered officers under the Act, also then he must follow thereafter the provisions of the N.D.P.S. Act and continue the investigation as provided thereunder. If, on the other hand, he is not empowered then the obvious tiling he should do is that he must inform the empowered officer under the NDPS Act, who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act.
Thus, it is abundantly apparent that it is only the empowered officer, who can conduct investigation and if any empowered officer comes across a person being in possession of narcotic drug or psychotropic substance and makes the search, seizure and arrest of the accused under the Act, then he is fully empowered to proceed with the investigation in that case. It is not at all necessary that in such a case, some other officer should proceed with the investigation. Therefore, such an empowered officer, who had made the search, seized the contraband article and arrested the accused or lodged the report, does not become disentitled to carry on the further investigation in the case....
In view of the aforementioned principle of law enunciated by the Apex Court in Balbir Singh''s Case (Supra), the dictum of law propounded in the cases enumerated in para No. 17 and relied on by Mr. G.L. Khatri, that if the empowered officer, who effects the recovery of the contraband under the Act, continues with the investigation of the case, vitiates the trial, cannot now be held to be a good law. Therefore, on tins count, the trial in this case cannot be held to have vitiated.
In Answer to this, the learned Advocate appearing for the appellant had cited another judgment reported in 1987 S.C.C. (Cri) 267 (Megha Singh Vs. State of Haryana) wherein the Division Bench of the Apex Court held that
We have also noted another disturbing feature in this case. P.W.3. Sin Chand, Head constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case.
This case had arisen under the TADA Act and Section 25 of the Arms Act.
In view of the discussions made above, and the findings that the prosecution has miserably failed in the non-examination of independent witnesses in this case, which was not properly considered by the trial court I come to the conclusion that the search, seizure and arrest were not proper and legal which vitiate the investigation and creates a great deal of doubt about the search and seizure. Hence, the appeals have to be allowed.
In the result, the appeals are allowed and the order of the trial court is liable to be set aside and the same is hereby set aside. The fine amount, if any paid by the appellants shall be refunded to them.