Johnson vs State

Swamidurai, J.—The accused in S.C. No. 41 of 1991 on the file of the 9th Additional Sessions Judge, Madras is the Appellant. He was

prosecuted for an offence punishable u/s 21 of the Narcotic Drugs and Psychotropic Substances Act, hereinafter called the Act, for allegedly being

in possession of 2 gms. of brown sugar on 5.10.1990 at about 4:15 p.m. on information received from the Assistant Commissioner P.W.I

Inspector of Police along with his party and informant were waiting at the Bus stop at Anna Salai near Guindy at 4:15 p.m. on 5.10.1990 and that

the informant giving the identity of the accused, the latter was intercepted and he was found in possession of a pocket containing about 2 gms. of

Heroin. After he was arrested, the packet was sent to the learned Magistrate only on 11.10.90 for opinion of the Chemical Analyst. Ex.P.6 is the

written instruction sent to P.W.4 and on that instruction only P.W.4 along with his party and informant went to the place on 5.10.1990 for

apprehending the accused.

P.Ws.1 to 5 were examined and Exs.P.1 to P.7 were marked. P.W.1 is the Head Constable and P.W.2 is the Chemical Analyst P.W.3 is the

Court clerk and P.W.4 is the Inspector of Police, who apprehended the accused along with P.W.I and P.W.5 is the Inspector of Police who

continued the investigation and filed the charge sheet as against the accused.

After considering the evidence oral and documentary, the trial court accepting the case of the prosecution found the accused guilty under the

abovesaid provision of the Act, convicted and sentenced the accused to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.

1,00,000/- in default to undergo rigorous imprisonment for two years. Aggrieved with the judgment of the lower Court, this appeal is filed by the

accused.

Learned Counsel for the Appellant Mr. T.V Ganesh contended that several provisions of the Act, namely, Sections 55 and 57 have not been

followed by the prosecution and that the violation of the same is detrimental to the case of the prosecution. He also contended that there is a delay

of nearly six days in producing the Heroin before the trial Court. The Prosecution has not offered any valid explanation for the delay. Learned

Public Prosecutor contended that there is no cross examination even on the part of the accused as to why such delay had occurred in producing

the contraband before the Lower Court. It is the duty of the prosecution to establish that there was a delay, the contention of the learned Counsel

for the Appellant that the case has been foisted against the accused, cannot be brushed aside easily. The other contention of the learned Counsel

for the Appellant is that the provision u/s 55 of the Act has not been followed. Section. 55 of the Act reads as follows:

55 Police to take charge of article seized and delivered: An Officer in charge of a Police Station, shall take charge of and keep in safe custody

pending the orders of the Magistrate, all articles seized under the Act within the local area of that Police Station and which may be delivered to

him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to

such articles or to take samples of any from them and all samples so taken shall also be sealed with a seal of officer-in-charge of police station.

In this case, P.W.4 has seized the contraband by arresting the accused and it is his duty to affix his seal on such article and to get the seal of the

officer in charge of the police station before whom the articles is delivered. In this there is no evidence that P.W.4 or P.W.1 had obtained the seal

of the officer in charge of the police station before whom the article was produced, this is violation of S. 55 of the Act.

The other violation of the provision of the Act was pointed out by the learned Counsel for the Appellant in Section 57 of the Act. Section 57 of the

Act reads as follows:

57 Report of arrest and seizure: Whenever any person makes any arrest or seizure under this Act, he shall within forty eight hours next after such

arrest or seizure, make a full report of the particulars of such arrest or seizure to his immediate officer superior.

From the evidence of P. Ws. 1, 4 and 5 do not find that the provision of S. 57 of the Act has been complied with by P. Ws. 1, 4 and 5. Section

57 of the Act is also mandatory since the omission to follow the procedure would give an opportunity to the prosecution to implicate the accused

and the Parliament is careful enough to put a time limit, namely, 48 hours for making a final report. This is a safeguard both for the accused and

also for the prosecution. This provision of the Act has also not been followed in this case.

Apart from this, learned Counsel for the Appellant contended that no independent witness was examined in this case even though the

occurrence is alleged to have taken place in public place at 4:30 p.m. Admittedly no independent witness was examined and the explanation

offered by the prosecution is that the independent witnesses, even though they were there, they were not ready and available as witnesses in this

case. I do not give much weight to this contention of the learned Counsel for the Appellant. But in view of the violation of the mandatory provisions

of the Act stated above, the prosecution is vitiated. In the circumstances, the conviction and sentence imposed on the accused/Appellant are set

aside and the accused is acquitted. The appeal is accordingly allowed.