Vidhya Sekar vs State by the Inspector of Police

This Criminal Appeal has been preferred seeking to set aside the conviction and sentence passed by the Additional Sessions Judge/Presiding

Officer/Special Court for Essential Commodities Act Cases, Coimbatore in

The case of the prosecution is as under:

Valluvan (P.W.2) Head Constable of NIB-CID received information that on 09.09.2003, around 4.00 p.m., two persons will be coming by

a TVS 50 motorcycle bearing Registration No. TN-41-B-7574, carrying ganja in Maruthamalai Road.

The information was recorded vide Ex.P.3 and the same was submitted to Chandrasekaran (P.W.5), Inspector of Police, who granted

permission to Valluvan (P.W.2), Head Constable, to proceed further. Valluvan (P.W.2), Head Constable, went along with the informant to

the said place and was waiting there. He requisitioned the services of Ravichandran (P.W.3) to stand as an independent witness.

Around the said time, Valluvan (P.W.2) spotted and stopped a TVS 50 motorcycle, in which, the two accused were coming with a sack.

He intercepted them and gave them a written communication under Section 50 of the Narcotic Drugs and Psychotropic Substances Act,

1985 (for brevity ""the NDPS Act"") (Ex.P.4) offering them an option to be searched before a gazetted officer or an Executive Magistrate,

which was declined by them.

Thereafter, the police party checked the sack and it was found to contain 22 1/2 kgs. of ganja. The police team drew two samples of 25

gms. each and kept them in two separate sealed covers. The two sample packets (M.Os.1 and 2), the sack containing 22.450 kg. of ganja

(M.O.3) and the TVS 50 motorcycle (M.O.4) were seized under the cover of mahazar (Ex.P.5). The statement of Vidhya Sekar (A1) and

Muthukumar (A2) were recorded and they were placed under arrest, after the arrest memo (Ex.P.8) was served on them. The police party

brought the accused to the police station and submitted a detailed report (Ex.P.10) under Section 57 of the NDPS Act.

Chandrasekaran (P.W.5), Inspector of Police, registered an FIR (Ex.P.9) for offences under Sections 8(c) read with 20(b)(ii) (C) and 25

and 29 of the NDPS Act against the accused. The accused and the seized contraband were sent to the jurisdictional Magistrate for remand.

Chandrasekaran (P.W.5), Inspector of Police, gave a request to the Special Court for NDPS Act Cases, Coimbatore, for sending one

sample to the Tamil Nadu Forensic Science Laboratory for chemical examination.

Sathyakumari (P.W.1), Scientific Officer, examined the sample sent by the Special Court for NDPS Act cases and in her evidence and

chemical report (Ex.P.2), she has stated that the sample was ganja.

Chandrasekaran (P.W.5), Inspector of Police, examined several witnesses and completed the investigation and filed a charge sheet before

the Special Court for NDPS Act Cases in C.C.No.47 of 2004 for offences under Sections 8(c) read with 20(b)(ii) (C) and 25 of the

NDPS Act against Vidhya Sekar (A1) and Muthukumar (A2).

On the appearance of the accused, they were furnished with the relied upon documents under Section 207 Cr.P.C. and the Trial Court framed

the following two charges:

VERNACULAR MATTER OMITTED

Of the aforesaid two charges, charge no.1 (free translation of which is as under) assumes significance.

That on 09.09.2003, around 16.15 hours at Maruthamalai Road, the police party intercepted a TVS 50 bearing Registration

No.TN-41-B- 7574 driven by Vidhya Sekar (A1) and Muthukumar (A2) seated in the pillion, holding a gunny bag, which, on

weighing, was found to contain 22 1/2 kgs. of ganja, the possession of which is punishable under Section 8(c) read with 20(b)(ii)(C)

of the NDPS Act.

The accused pleaded not guilty to the charges. To prove the case, the prosecution examined 5 witnesses and marked 14 exhibits and 4 Material

Objects. When the accused were questioned against the incriminating circumstances appearing against them under Section 313 Cr.P.C., they

denied the same. On behalf of the accused, two witnesses, viz., Masilamani (D.W.1) and Senthilvel (D.W.2) were examined in order to show that

the accused were already detained by the police and the case was foisted against them.

The Trial Court, after analysing the evidence on record and hearing the arguments advanced by the learned counsel on either side, convicted

Vidhya Sekar (A1) under Section 8(c) read with 20(b)(ii)(C) of the NDPS Act and sentenced him to undergo 10 years Rigorous Imprisonment

and imposed on him, a fine of Rs.1 lakh, in default to undergo two years Rigorous Imprisonment and acquitted Muthukumar (A2) of both the

charges. Challenging the conviction and sentence, Vidhya Sekar (A1) has preferred the present appeal.

Heard Mr. R. Sankarasubbu, learned counsel for the appellant/(A1) and Mr. K. Madhan, learned Government Advocate (Crl.Side) appearing

for the respondent-State.

This appeal deserves to be allowed on a very short ground, viz., that in the charge framed by the Court, it has been stated that Vidhya Sekar

(A1) was riding the TVS 50 motorcycle and Muthukumar (A2) was seated in the pillion with a sack of ganja. Whereas, in the evidence of

Valluvan (P.W.2), he has stated that Muthukumar (A2) was riding the TVS 50 motorcycle and Vidhya Sekar (A1) was seated in the pillion with

ganja. Ravichandran (P.W.3), an independent witness, has stated that when he was called by the police to be a witness, the police had intercepted

the accused and he saw a gunny bag near the TVS 50 motorcycle. Therefore, Ravichandran (P.W.3) has not seen who was riding the TVS 50

motorcycle and who was seated in the pillion.

To a pointed question that was posed to Chandrasekaran(P.W.5), Inspector of Police, who filed the charge sheet, he has stated as follows:

In my final report, I have not stated who was riding TVS 50 and who was sitting in the pillion with ganja.

This Court perused the final report and found that the Investigating Officer has not stated as to who was riding the TVS 50 motorcycle and

who was seated in its pillion. However, the Trial Judge has proceeded to convict Vidhya Sekar (A1) on the premise that he was seated in the

pillion and holding on to the sack containing ganja and that Muthukumar (A2) had merely accompanied Vidhya Sekar (A1).

To come to this conclusion, the Trial Court has copiously extracted the police confession statement of Muthukumar (A2) and Vidhya Sekar

(A1), little realising the fact that the same is hit by Section 25 of the Evidence Act and that the said confession cannot be used even in favour of the

accused, if the same has been given during the course of investigation.

In this case, according to Valluvan (P.W.2), Head Constable, when the accused were intercepted, they were given an option under Section 50

of the NDPS Act, ganja was weighed, samples were drawn, mahazar was prepared and only thereafter, the statements of Vidhya Sekar (A1) and

Muthukumar (A2) were recorded. Therefore, the reliance placed by the Trial Court on the confession statement of the accused is contrary to law.

To recapitulate, the charge that was framed against the accused shows that Vidhya Sekar (A1) was riding the TVS 50 motorcycle and that

Muthukumar (A2) was seated in the pillion and was holding the sack containing ganja. But, the evidence and the judgment of the Trial Court would

depict a different picture. This is not merely an irregularity in the charge curable under Section 465 Cr.P.C. The Investigating Officer himself was

not sure as to who was riding the TVS 50 motorcycle and who was seated in the pillion. The State has not filed any appeal against acquittal of

Muthukumar (A2).

In such perspective of the matter, the conviction and sentence imposed by the Trial Court on Vidhya Sekar (A1) are set aside and as a sequel, this

Criminal Appeal stands allowed. Connected Crl.M.P. is closed. The fine amount paid by the appellant/(A1)shall be refunded to him. The bail

bond, if any executed, shall stand discharged.