IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:04.03.2010 CORAM THE HONOURABLE MR.JUSTICE S. NAGAMUTHU Crl.A.No. 457 of 2009 and M.P.2 of 2009 Ramesh .. . Appellant / 1st Accused Vs. State rep by its Inspector of Police, NIB, CID, Salem ... Respondent (Crime No.2284/04) PRAYER: Appeal filed under Section 374 (2) Cr.P.C against the judgment dated 27.06.2007 pronounced by the learned Special Judge (EC Act) Salem in C.C.No.185 of 2005. For Appellants : Mr.Sankara Subbu Mr.C.S.Dhanasekaran For Respondent : Mr. N.R.Ilango, Addl.Public Prosecutor O R D E R Though the miscellaneous petition alone is listed for hearing, the learned counsel submitted that the appeal itself may be heard and disposed off. Accordingly, the appeal was heard and the same is disposed of. 2. The petitioner is the first accused in C.C.No.185 of 2005 on the file of the Special Court under the Essential commodities Act, Salem. There was yet another accused by name Chokkan @ Chokkanathan. The appellant stands convicted for offences under Sections 8( c ) read with 20(b)(ii)(c) and 25 of N.D.P.S Act and sentenced to undergo R.I for ten years and to pay a fine of Rs.1,00,000/- , in default to undergo further R.I for two years. The second accused Chokkan @ Chokkanathan has been acquitted. Challenging the said conviction and sentence, the appellant is before this Court with this appeal. https://hcservices.ecourts.gov.in/hcservices/ 3. The case of the prosecution in brief is as follows: i) P.W.1 was the Inspector of police, Prohibition Enforcement Wing, Dharmapuri during the year 2004. P.W.2 was the then Sub Inspector of Police of the said Wing. One M.Devendran (Head Constable No.1622), Police Constable Vivekanandan (P.C.No.1724) and another Constable Selvaraj (P.C.No.271) were also attached to the said Police Station. On 11.09.2004, at about 7.00 a.m. P.Ws 1 and 2 along with the above stated Police Constables were engaged in vehicle check up on Dharmapuri to Salem road at Elagiri road junction. At that time, a jeep bearing registration No.TN 20 D 919 was found proceeding towards Salem from Dharmapuri i.e. from North towards South. The registration number of the vehicle was not displayed on the front side of the jeep. P.W.1, with the help of others, intercepted the vehicle and as soon as the vehicle came to a halt, he caught hold the driver of the vehicle. Another person, who was also in the jeep fled away from the scene. From the information furnished by the driver of the vehicle, P.W.1 came to know that his name is Ramesh S/O.Ramiah (appellant). The appellant told him that the person who escaped from the scene was one Chokkan @ Chokkanathan (A2) P.W.1 was given to understand that Ganja was being stealthily transported in the jeep. Therefore, P.W.1 decided to make a search. Before doing the search, P.W.1 informed the appellant that he had the right to have search conducted in the presence of either a Gazetted Officer or a Judicial magistrate. Such information given in writing by P.W.1 is Ex.P.1. The appellant acknowledged the same. Thereafter, the appellant informed P.W.1 that it was not necessary for search in the presence of a Gazetted Officer or a Judicial Magistrate and instead, P.W.1 himself can do the same. Thereafter, P.W.1 along with others searched the jeep. He found 13 gunny bags in the jeep. He unloaded the same from the jeep. On opening the gunny bags, he found that all the bags contained Ganja mixed with seeds. From out of the smell, he could perceive that it was Ganja. with the help of a scale, when he weighed the bags, he found the same weighing 85Kgs, 85 Kgs, 60 Kgs, 10 Kgs, 30 Kgs, 25 Kgs, 17 Kgs, 22Kgs, 22kgs, 22 Kgs, 22 Kgs, 22 Kgs and 20Kgs respectively and the total weight was 442 kilograms. He drew two representative samples from each gunny bag. Likewise, he took 26 pockets of samples. P.W.1 tied the pockets with twine thread and stitched the Ganja bags. Then he affixed seals on the sample pockets and gunny bags. He obtained the signature of the appellant and the witnesses on slips and pasted the same on the sample pockets. He seized the Ganja bags and the jeep with a spare tyre under a mahazar-Ex.P.2. M.Os. 1 to 13 are the Ganja bags seized from the possession of the appellant. M.Os.14 to 39 are the sample pockets, of which, M.Os.27 to 39 are the sample pockets returned by the Forensic lab after examination. M.O.40 is the jeep. M.O.49 is the tyre. Then he recorded the statement of the accused. The accused was arrested and arrest memo https://hcservices.ecourts.gov.in/hcservices/ was served on him under Ex.P.4. Then he took the accused and seized the articles to Prohibition Enforcement Wing, Police Station. P.W.2 and other constables also accompanied him. Then he registered a case at 10.00a.m. in Crime No.2284 of 2002 under Sections 8(c) read with 20(b)(ii)(c) and Section2 5 of N.D.P.S. Act. he forwarded the First Information Report to the Court through a constable. It was received by the learned Magistrate at 10.30 a.m on 11.09.2002. Then he forwarded a report as required under Section 57 of the N.D.P.S Act. to the Deputy Superintendent of Police Dharmapuri under Ex.P.6. The arrest of the petitioner was intimated to his father by means of a telegram under Ex.P.7. ii) P.W.6, was then the then Inspector of Police, Norcotic Wing at Salem. He took up the investigation of the case on 20.12.2004. He examined the person in whose name the registration Certificate of the Jeep then stood and recorded his statement. He examined P.Ws.1 and 2 and few more witnesses and recorded their statements. A request was made by the Police to the trial Court to forward M.os. 27 to 39 for chemical examinations. P.W.5, chemical examiner verified the same and found that seals were intact. Then he examined the same and found that the contents of the pockets were Ganja. Ex.P.14 is the report of the Chemical examiner. P.W.6, after getting the analysis report and after perusing the record filed a final report against both the accused for offences under Sections 8(c) read with 20(b)(ii)(c) of N.D.P.S Act. 4. On considering the above materials, the trial Court framed charges against the accused under Sections 8(c) read with 20(b) (ii)(c) of N.D.P.S Act. When questioned, the appellant denied the charges. Therefore, he was put on trial. 5. During trial of the case, on the side of the prosecution as many as six witnesses were examined as P.Ws 1 to 6 and 14 documents were exhibited as Ex.P.1 to P.14. When the appellant was questioned under 313 Cr.P.C., he denied the incriminating materials and claimed them to be false. The second accused examined D.W.1 , in order to prove alibi. The appellant examined D.W.2, to speak about the fact that the appellant had gone out from his workshop on 10.09.2004 itself for the purpose of repairing a jeep. Later on, according to D.W.2, he came to know from the sister of the accused that he was involved in a Ganja case. Two documents relating to the ownership of the jeep were marked as EXs.D1 and D.2. on the side of the accused. 6. Having considered all the above materials, the trial Court acquitted the second accused but convicted the appellant and imposed appropriate punishment. It is against the same, this appeal has been preferred. https://hcservices.ecourts.gov.in/hcservices/ 7. P.W.2 has also spoken to about the entire facts relating to the interception of the vehicle, arrest of the appellant, seizure of the contraband etc. His evidence fully supports the evidence of P.W.1. P.W.3, who is the Regional Transport Officer, has spoken to about the ownership of the jeep. According to him, the jeep stood in the name of one R.Gunaseelan. P.W.4 was examined to speak about the fact that the said jeep was purchased by the second accused, but R.C. was not changed in his name. But, P.W.4 has turned hostile and did not support the case of the prosecution.P.W.5 is the analyst who has spoken to about his report. P.W.6 is the Investigating Officer who has spoken to about the investigation done by him and the charge sheet laid. 8. The learned counsel for the appellant would assail the conviction and sentence on the following grounds. i. The evidence of P.Ws 1 and 2 who are the police Officials cannot be either undoubted or acted upon for want of corroboration from independent witnesses. ii. The mandatory provision contained in Section 50 of the N.D.P.S Act has not been followed, which vitiates the entire conviction. Further Section 42 of the Act has not been followed; iii. The report under Section 57 of the Act (Ex.P.6) was sent with enormous delay, which creates doubt in the case of the prosecution; iv. The contraband allegedly possessed by the accused was also sent belatedly to the Court, for which there is no explanation, which also creates doubt in the case of the prosecution; v. The First Information Report cannot be believed as there are materials to establish that it is a concocted document; vi. Section 52 of the Act has not been followed by P.W.1 which creates doubt in the case of the prosecution; vii. P.W.1 had no power to investigate the crime since he was then working only in Prohibition Enforcement Wing of the police Station, which is ear marked for investigating exclusively, the cases under the Tamil Nadu Prohibition Act. viii. Assuming that the contraband was seized from the jeep, the accused cannot be stated to have conscious possession of the contraband; as there are indications that the contraband could have been kept in the jeep by A.2 or by somebody without the knowledge of the appellant. ix. Purity test to know the exact weight of https://hcservices.ecourts.gov.in/hcservices/ Ganja has not been done and therefore, it cannot be stated that Ganja allegedly seized from the appellant is commercial quantity. At the most, it can be construed to be between small quantity and commercial quantity and therefore, the punishment imposed is not correct. 9. In order to substantiate the above contentions, the learned counsel has taken me through the evidence both oral and documentary, and has also cited various judgments of the Hon'ble Supreme Court as well as this Court about which, I will make reference at the appropriate places of this judgment. 10. Per contra, the learned Additional Public prosecutor would make the following submissions: i. Though the occurrence was in a public place, there is no evidence that there were General Public available and so, non examination of independent witnesses has not in any manner created dent in the case of the prosecution; ii. Simply because P.Ws 1 and 2 are police officials, their evidences cannot be straightaway rejected and their evidences require full acceptance since no material has been elicited during cross examination to discredit their evidence; iii. The mandatory provision contained in Section 50 of the N.D.P.S Act is not at all applicable in respect of the search made in the vehicle as the said provision is applicable only to personal search; iv. There is no delay in forwarding the report under Section 57 of the Act and the delay pointed out by the learned counsel for the appellant is immaterial and the same would not in any manner affect the case of the prosecution; v. Section 52 is not applicable to the facts of this case; vi. Similarly, there is no delay in forwarding the contraband to the Court and the delay pointed out by the learned counsel for the appellant, does not in any manner create doubt in the case of the prosecution; vii. P.W.1, being a police officer is fully empowered to investigate the case and it is immaterial as to whether he is attached to Prohibition Enforcement Wing or some other Wing of Police Department; viii. Section 42 of the Act is not at all https://hcservices.ecourts.gov.in/hcservices/ applicable to the facts of the present case because the requirements of Section 42 are expected to be complied with only in the case where the police officer acts either on his personal knowledge or on any information that such an offence is being committed; ix. First Information Report has been entered in the book specified by the government and therefore, it cannot be stated to be a concocted document; x. Going by the huge quantity of the contraband kept in the jeep and also the fact that the petitioner was the driver of the jeep, it cannot be stated at any stretch of imagination that he did not have knowledge and therefore, the contention that the possession was not conscious possession is only fallacious; xi. Purity test in respect of Ganja is not at all required as held by the Hon'ble Supreme Court in 2009 (2) SCC 26. Therefore, the quantity of contraband seized from the appellant is a commercial quantity and thus the lower Court is right in appropriately punishing the accused. 11. I have considered the rival submissions. Before going to analyse the facts involved in this case, it would be worthwhile to refer to the judgment of the Hon’ble Supreme Court in Raju Premji VS Customs NER Shillong Unit reported in 2009 (3) Crimes 109 (SC) on which much reliance has been placed by the learned counsel for the appellant. In paragraph 7 of the said judgment, the Hon’ble Supreme Court has recorded a word of caution as follows: ” The Act provides for stringent punishment. Where a statue provides for stringent penal provisions including the matter relating to grant of a bail, the conditions precedent therefor must be scrupulously complied with” The above observation came to be made by the Hon’ble Supreme Court while dealing with a criminal appeal relating to the N.D.P.S Act. Keeping the above caution in mind, let me analyse the facts. 12. P.Ws.1 to 3 claim to be the eye witnesses. According to them, while they were engaged in vehicle check up, a jeep driven by the appellant was intercepted and the same was found carrying Ganja. The foremost contention of the learned counsel for the appellant is that the evidence of P.Ws 1 to 3 cannot be made the foundation for conviction as they happened to be police officials who are interested in the prosecution case, more so, because there has been no independent witnesses examined. In this regard, I have to state that it is not the rule of evidence that the evidence of police officials are to be always doubted and https://hcservices.ecourts.gov.in/hcservices/ invariably rejected. It all depends on the facts and circumstances of each case. If the Court finds that the evidences of the police officials inspire the confidence of the Court, absolutely there is no legal bar to act upon such testimonies of police officials even in the absence of any other independent witness to corroborate. In the case on hand, I have carefully gone through the entire evidence of P.Ws 1 to 3 where nothing has been elicited during cross examination to discredit the evidences of any of these witnesses. Though they were subjected to a lengthy and incisive cross examination by the defence counsel, they have withstood the same. As I have already stated nothing has been brought on record which would create any doubt in the version of their evidences. In this context, I have to refer to the judgment of the Hon’ble Supreme Court in Pradeep Narayan Madgaonkar and others VS State of Maharashtra reported in 1995 Supreme Court Cases (Cri) 708 wherein the Hon’ble Supreme Court has made the following observation in respect of the evidence of police officials: "Indeed, the evidence of the officials (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are, either interested in the investigating or the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation, requires greater care to appreciate their testimony." 13. Of course, it is true that no independent witness has been examined to corroborate the evidences of P.Ws 1 to 3. The learned counsel for the petitioner would submit that since the occurrence was in a public place, independent witness would have been certainly available and therefore, failure to examine any one of the independent witnesses is fatal to the case of the prosecution. In this regard, I have to state that it is not in evidence that though the jeep was intercepted at a public place, any independent witness was available anywhere near the place of occurrence at the crucial time. Simply because the vehicle was intercepted at a public place, it cannot be automatically presumed that there would have been independent witnesses. A perusal of Exs.P.9 and P.10 ( Observation mahazar and sketch) would go to show that there were no habitations anywhere near the place of occurrence. There were only a Flour and Oil Mill and a school situated somewhere near the place of occurrence. These two documents were prepared by P.W.1 and proved through him. There was no cross examination in respect of these two documents disputing the correctness of the observations in the documents. However, it https://hcservices.ecourts.gov.in/hcservices/ is in evidence of P.W.1 during cross examination as though he called independent witnesses but they declined. Of course, P.W.1 has not so recorded in the case diary about the same. It is, to some extent, a flaw. But it cannot be forgotten that none can be compelled to be a witness. In such circumstances, when there was no independent witness either available or coming forward, non examination of such independent witnesses is quite natural and therefore, it cannot be a ground to doubt the evidence of P.Ws 1 to 3. 14. The learned counsel would nextly submit that as provided under Section 100(4) Cr.P.C P.W.1 ought to have taken to the place of occurrence two independent witnesses and the failure to follow the said provision is again fatal to the case of the prosecution. The learned Additional Public Prosecutor would however submit that Section 100 (4) of the Code is not at all applicable to the facts of the present case as the said provision would come into operation only in a case where the police officer receives either reliable information or has got reason to believe that an offence is committed. It is in those circumstances only, before proceeding to the place of occurrence, he is required to take two independent witnesses, he added. 15. The learned counsel for the appellant would however submit that in view of Section 51 of the Act, which declares that the provisions of the Code of Criminal Procedure 1983 shall apply to all searches and seizures made under N.D.P.S Act, the police officer ought to have followed Section 100(4) Cr.P.C. In this regard, I may refer to Section 49 of the N.D.P.S Act which empowers a police officer to stop the vehicle and to search the same. Section 49 reads as follows: "Power to stop and search conveyance: Any officer authorized under Section 42, may, if he has reason to suspect that any animal; or conveyance is, or is about to be, used for the transport of any narcotic drug or psychotropic substance, (or controlled substance), in respect of which he suspects that any provision of this Act has been , or is being, or is about to be, contravened at any time, stop such animal or conveyance, or, in the case of an aircraft, compel it to land and : a) rummage and search the conveyance or part thereof; b) examine and search any goods on the animal or in the conveyance; c) if it becomes necessary to stop the animal or the conveyance, he may use all lawful means for stopping it, and where such means fail, the animal or the conveyance may be fired upon." https://hcservices.ecourts.gov.in/hcservices/ 16. A close scrutiny of Section 49 of the N.D.P.S Act would show that the said provision alone is applicable to the facts of the present case and not Section 100(4) Cr.P.C. As rightly pointed out by the learned Additional Public Prosecutor, Section 100 (4) Cr.P.C. relates only to search in closed places. Therefore, the contention of the learned counsel for the appellant that the police officer ought to have followed Section 100(4) Cr.P.C is rejected. As provided under Section 49 of the Act, P.W.1 is empowered to stop the vehicle and to search and so the search and seizure conducted by him cannot be stated to be illegal or irregular. 17. Nextly, the learned counsel for the appellant would contend that Section 50 of the N.D.P.S Act has not been followed and on this ground itself, the appellant is entitled for acquittal. There can be no doubt that Section 50 of the Act is mandatory and failure to follow the same itself is a ground for acquittal. But the learned Additional Public Prosecutor would submit that Section 50 of the Act is applicable only in respect of searches of persons and the same is not applicable to search of the vehicles. This legal position does not require a great deal of discussion as the law has been well settled by the Hon’ble Supreme Court. In this regard, a reference may be made usefully to the following judgments of the Hon’ble Supreme Court. (i) State of Punjab VS Balbir Singh and others reported in (2004) 8 Supreme Court Cases 702: "Sections 42 and 43, therefore, contemplate two different situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 of the NDPS Act for searching the vehicle between sunset and sunrise. We, therefore, hold that in the facts of this case Section 50 of the NDPS Act was not applicable since the contraband was recovered on search of a vehicle and there was no personal search involved. The requirement of the proviso to Section 42 was also not required to be complied with since the recovery was made at a https://hcservices.ecourts.gov.in/hcservices/ public place and was, therefore, governed by Section 43 of the Act which did not lay down any such requirement. Additionally, since the Superintendent of police was a member of the search party and was exercising his authority under Section 41 of the NDPS Act, the proviso to Section 42 was not attracted." (ii) State of Haryana VS Jarnail Singh and others reported in (2004) 5 Supreme Court Cases 188: "The same view has been reiterated in several decisions of this Court including Kalema Tumba V.State of maharashtra, Gurbax Singh V.State of Haryana, Madan Lal V. State of H.P., Birakishore Kar V.State of Orissa and Saikou Jabbi V.State of Maharashtra. The language of Section 50 is clear and unambiguous and the law so well settled that it is not possible to take a different view. We must, therefore, hold that Section 50 of the NDPS Act did not apply to the facts of this case, where on search of a tanker, a vehicle, poppy husk was recovered. This not being a case of personal search, Section 50 was not applicable. Moreover, there was no prior information regarding the contraband being carried in a vehicle, and the recovery was the result of checking of the vehicle in the normal course." 18. The learned counsel would submit that it is not the case of the investigating officer that Section 50 of the Act is not applicable and