IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04/02/2003 CORAM THE HONOURABLE MR.JUSTICE V.KANAGARAJ CRIMINAL APPEAL NO.903 of 1996 1. K.Thambiraja 2. Siva @ Sivalingam .. Appellants -Vs- The Intelligence Officer, Narcotic Control Bureau, South Zone, T.Nagar, Madras. .. Respondent Criminal Appeal is directed against the judgment dated 3.10.1996 passed in C.C.No.169 of 1994 of by the Court of Special Judge for NDPS Act, Madras, as stated therein. !For Appellants: Mr.P.Venkatasubramaniam. ^For Respondent: Mr.P.N.Prakash, Spl.Public Prosecutor. :JUDGMENT The above Criminal Appeal is directed against the judgment dated 3 .10.1996 passed in C.C.No.169 of 1994 by the Court of Special Judge for NDPS Act Cases, Madras, thereby convicting the first appellant for an offence punishable under Section 29 of N.D.P.S.Act and sentencing him to undergo R.I. for ten years and to pay a fine of Rs.1 lakh in default to undergo a further R.I. for a period of two years and convicting the second appellant for an offence punishable under Section 21 of N.D.P.S.Act and sentencing him to undergo R.I. for ten years and to pay a fine of Rs. 1 lakh, in default to undergo a further R.I. for a period of two years. 2. Tracing the history of the case as projected by the prosecution, it comes to be known that on 20.7.1994, based on an information, the Officer of Narcotics Control Bureau, Madras visited Hotel Sri Krishna at 170,Linghi Chetty Street, Madras-1 and searched room No.209 under the occupation of A.1 to A.3; that during the course of search, a black zipper shoulder bag containing about 500 grams of heroin was found which belonged to A.1. The statement of accused and materials collected revealed that A.1, A.2 and A.3 knowingly acted in conspiracy to purchase, possess, conceal, transport and attempt to export to Sri Lanka about 500 grams of heroin, thus, the accused A.1, A.2 and A.3 have committed the offence under Section 8, 23, r/w 29 of N.D.P.S. Act punishable under Section 21 of N.D.P.S.Act. 3. The Special Judge, N.D.P.S.Act Cases, Madras, having taken the case on file and observing the usual formalities, would conduct a full trial in which the prosecution has examined 7 witnesses for oral evidence as P.Ws. 1 to 7 and marked 25 documents for documentary evidence as Exs.P1 to P25 and 5 Material Objects as M.Os.1 to 5. 4. P.W.1,is the Intelligence Officer in Narcotic Control Bureau, South Zonal Unit, T.Nagar, Madras and he would depose that he received the information on 20.7.1994 about the commission of offence by the accused got it reduced into writing as Ex.P1, reported the same to Superintendent of Police and on permission, went to the spot and conducted the search wherein he found M.O.1 zipper shoulder bag which belonged to A1, in which they found 5 polythene packets underneath the clothing each of which contained 100 grams of Heroin and he seized the whole quantity of 500 grams further recovering certain documents and observing the legal requirements as contemplated under the Act, seized certain documents under the cover of Ex.P.2 Mahazar; that the sample covers of the contraband are M.Os. 2 and 3 and the remaining cover containing Heroin is M.O.4; that the brown cover containing the file NCB polythene cover is M.O.5, the other documents recovered are Ex.P3, Ex.P4 series, Ex.P5 and Ex.P6; that he recorded Ex.P7 statement of the partner of Hotel Srikrishna and submitted Ex.P8 report to the Superintendent of Police under section 57 of the Act; that all the properties seized by P.W.1 were handed over to the Godown Officer under Es.P9 forwarding Memo; that Ex.P10 is the receipt issued and Ex.P11 is the remand report; that M.O.2 marked as S1 was sent to the Chemical Examiner along with Ex.P12 requisition. 5. P.W.2 is another Intelligence Officer, who would depose that he recorded the statement of the 2nd accused on 20.7.1994 under Ex.P1 4 and arrested the 2nd accused on 21.7.1994 under Ex.P15 arrest memo; that thereafter he sent Ex.P16 report under Section 57 of the Act to the higher officials. 6. P.W.3, another Inspector who accompanied P.W.1 at the time of raid, would depose that he recorded Ex.P16 statement of the first accused and caused the arrest of the first accused on 21.7.1994 and sent a report in Ex.P17 to the higher officials. 7. P.W.4, who is the Intelligence Officer of South zone Narcotic Control Bureau would depose that he recorded the statement of Mr. Kandasamy under Ex.P18 and after completing the investigation, he filed the charge sheet against the accused. P.W.5 who is the Central Excise Inspector would depose that he accompanied P.W.1 at the time of the raid and that he recorded Ex.P19 statement of the third accused, prepared Ex.P20 arrest memo and sent Ex.P.21 report under Section 57 of the Act. P.W.6 who is the Chemical Analyst, would depose that she gave Ex.P22 report and Ex.P23, the Test Memo. P.W.7 is the Receptionist of the hotel Sri Krishna who would depose that he issued Ex.P24 , receipt for the room, Ex.25 is the extract of the register of Hotel Sri Krishna. 8. The learned Special Judge, in consideration of the oral and documentary evidence and in further consideration of the materials placed on record and appreciating the same in the context of the facts and circumstances of the case projected by the prosecution, has ultimately arrived at the conclusion that the first appellant (A2) is guilty of the offence punishable under Section 29 of the NDPS Act and the second appellant (A3) is guilty of the offence punishable under Section 21 of the NDPS Act and thereby convicting the sentencing the appellants as aforementioned. Aggrieved, the appellants herein have come forward to prefer the above criminal appeal on the ground as setforth in the grounds of appeal. The appeal preferred by the first accused has not been taken up for consideration since he is reported dead during the pendency of the appeal and none of his legal representatives have come forward nor willing to prosecute the said appeal and hence the Appeal preferred by these two appellants is heard and decided by this judgment. 9. During arguments the learned counsel appearing on behalf of the appellants besides submitting the memorandum of arguments, also advanced his oral arguments, the sum and substance of which is that the prosecution is burdened to prove its case beyond all reasonable doubts whereas the appellants so far as the defence version is concerned, they can establish their case with preponderance of probability and the Court can act on such evidence and acquit the accused; that the prosecution has not examined any independent witness to show that the investigation was above board and that it followed the various mandatory provisions of law; that since the evidence of the Officers are contrary to one another, an independent corroboration has become necessary in the case of the prosecution; that the evidence of the witnesses P.Ws.1 to 5 are not inspiring confidence; that P.W.6, Chemist, also does not corroborate the official witnesses and hence there is a very chance of foisting the case against the appellants. 10. Learned counsel would further submit that conscious possession of Heroin was not proved so far as it is concerned with these appellants; that the evidence and the confession statement under section 67 of the Evidence Act which is permissible in law needs corroboration because of the nature and time of confession, time of arrest, production before the Magistrate etc.; that the incriminating circumstances were not brought forth by the Special Judge so as to enable the accused to offer explanation in their statement. 11. Learned counsel then pointed out the contradictions in between the evidence of P.W.1 and the other witnesses regarding taking of the samples; that P.W.1 states that from each packet they took 5 gms and after collecting the same, he took two samples, whereas the evidence of the other official witnesses who were present in the search along with P.W.1 have deposed that the entire contraband of 500 gms was poured into one of the packets, mixed thoroughly and only thereafter, two samples of 5 gms each were taken; that these variations regarding the collection of samples clearly establish the contradicting version among the P.Ws themselves; that the report of P.W.6 Chemical examiner does no corelate the seizure; that P.W.1 states that the officials took a kit and weighed and tested the contraband, whereas the report of the Chemical examiner in Ex.P22 and P.23 coupled with the evidence of P.W.6 , the samples were found to weigh 5.4 gms in each packet. These are the doubtful circumstances created regarding the quantity of the contraband seized. 12. Learned counsel would then point out that P.W.1 during his cross-examination has stated that he did not have any idea whether any raid was conducted at the house at Annanagar for Narcotic Drugs; that P.W.3 in his cross-examination by the third accused specifically stated that when the raid was conducted P.W.1 and P.W.2 were present; that even though the prosecuting officers have searched the house of one Kandasamy as per the evidence of P.W.3 and his statement was recorded by P.W.4 for no reason assigned he has not been examined though his statement was obtained thereby clearly showing that the investigation is not above board; that the statement made by the said Kandasamy is material for the purpose of corroboration of the statement made by the accused under Section 67 of the Act; that though the statement made before the Officer is admissible under section 67 of the Act, the following aspects do not lend credence to the statement made before them; that the appellants and the first accused were taken into custody by the authorities at 10 a.m. On 20.7.1994; that the search has been conducted at 7.30 a.m, though it is 8 a.m. that day as per the evidence. 13. It is P.W.1's evidence that (a) within a few minutes after entering the room, they were able to take the contraband and prima facie they came to the conclusion that the accused have committed the offence under the N.D.P.S. Act. (b) that P.W.3's evidence in cross is that the accused and other persons were brought to N.C.B office at about 10.a.m. on 20.7.1994; (c) that the search, seizure, preparation of mahazar and recording of statement including that of Kandasamy according to all the officials were over by 2 p.m. and after 2. p.m. there were no progress in the investigation but the arrest date has been shown as on 21.7.1994 at about 7 a.m. belatedly in order to cover the delay since they were produced before the Magistrate only at 4.25 p.m. on 21.7.1994. No proper reason has been assigned for showing the arrest of the accused the next day even though right from the time of search they were under the custody of the departmental officials, P.Ws 1 to 5. (d) that even though the recording of all the statements have been done between 10 a.m and 12 p.m. On 20.7.1994 they along with the seized articles reached the Court only on 21.7.1994 though the time is not mentioned by the Magistrate for the receipt of those items though in the normal course it is done; that the prosecution has not established that the statements were voluntary and not recorded under coercion. The non-explanation by the prosecution regarding the delay in arrest and causing production of the statements and articles before the Court throw considerable doubt on the case of the prosecution, regarding the voluntary rendering of the statement by the accused. 14. Learned counsel would then focus his attention on the statutory compliance of Section 50 of the act. The non-compliance of Section 5 2(A) has also been admitted by P.w.1 in view of the Magistrate returning the articles to the prosecution for being produced before the Court of Special Judge, N.D.P.S. Cases on 22.7.1994 and the samples according to the evidence weighing 5 gms but according to the chemical examiner weighing 5.4 gms. The possibility of mixing spurious substance into the same cannot be ruled out. These aspects were not at all considered by the Special Court, particularly regarding the report sent under Section 57 to the higher authorities as mandated by law which were received by the Magistrate on 21.7.1994 and without the initials, date and time of the Magistrate, this throws doubts regarding the recording of the statement, whether it was on 20.7.1994 or at the later date in point of time; that the report sent to the superior officer regarding the search and seizure since being the earliest document coming into existence, has been sent along with the other report made under section 57 thereby showing that all the reports have been made after the arrest of the accused on 20.7.1994 as a result of afterthought and hence the report sent to the superior officers regarding the propriety of the search and seizure lend no credence and it vitiates the conviction. 15. Regarding reliability of the evidence of P.W.7 on the ground that he is the independent witness particularly for the purpose of corroboration since he is the only witness attesting Ex.P2 Mahazar; that even in the document the time of opening and closure are not mentioned but only the time of search has been mentioned as at 8 a.m. It is the admitted case of P.W.7 that he knows only Kannada language and cannot write English on his own but his statement is in English running to three pages. Hence, it has to be concluded that the statement of P.W.7 is not genuine. Moreover, the exact date of reaching of this statement to the Court is not feasible and bluntly only the date is offered as 12th which could be presumed as 12.10.1994 since Ex.P9 document regarding the deposit of the contraband bears the seal of 12.10.19 94. All the above aspects throw considerable doubt regarding the search, seizure and other procedures followed and hence the evidence of the prosecution regarding these aspects has to be rejected in toto giving the benefit of doubt to the accused. 16. The learned counsel would then argue that the reliance placed by the prosecution on the entry register, train tickets, bus tickets, telephone diary etc., cannot be taken on their face value of corroboration because in the normal course, the train ticket is collected by the ticket collector at the exit; that the ticket does not contain part iculars which should have been entered therein and the reservation charge in this connection has not been summoned for proof of the same, and hence it would not show the travelling of the appellants by train; that the bus tickets cannot also be used for corroboration to the statement made under section 57. Regarding the lodge register, it is the prosecution case that they started on 14.7.1994 and were staying at Kandasamy's house on 17.7.1994 but according to A3 they travelled from Bombay; that the same according to A1 and A2 they started on 15.7.1994 and they came to Chennai and stayed in the Room No.209. Ex.P24 is dated 16.4.1994; that the time of arrival is corrected. Even in Ex.P25 the correction has been shown regarding the date and time; that the room has been booked only for a day but according to P.w.7 the accused booked it for 3 days but according to Ex.P24, the accused ought to have vacated on 19.7.1994 and that on 20.7.1994 they would not have been present there; that the lodge register has been corrected changing the date from 16.7.1994 to 17.7.1994, the corrections are also not countersigned by P.W.7, hence from Exs.P24 and P.25 it cannot be suggested that they were present in Room No.209 on 20.7.1994. In short, the learned counsel would exhort that all the above facts coupled with the violation of Sections 50, 52, 52(A), 55 and 57 of the Act and the various contradictions of the facts would make the conviction liable to be set aside. 17. The learned counsel would also rely on the following judgments on certain legal propositions. The first one being that of the Honourable Apex Court reported in 2000 Supreme Court Cases (Criminal) 829 (KOLUTTUMOTTIL RAZAK Vs. STATE OF KERALA) wherein, it has been held that "the non-compliance of Sections 42 of the Act will render the search and seizure suspicious and hence, the conviction under Section 21 has to be rejected". The next judgment cited is also that of the Honourable Apex Court reported in 2000 Supreme Court Cases (Criminal) 1228 (K.MOHANAN Vs. STATE OF KERALA) wherein, the mandatory requirement of Sections 50 and 57 of the N.D.P.S. Act, is dealt with in the following terms: "The main legal point canvassed before us is that the mandatory requirement in Section 50 of the Act has not been complied with. It is recited in the judgment that P.W.1, before the search was conducted, asked the appellant whether he required to be produced before a gazetted officer or a Magistrate for the purpose of search and that the appellant answered in the negative. In order to ascertain whether the said recital is authentic, we called for the original records. Though the evidence is recorded in vernacular we found from the testimony of P.W.1 that the aforesaid recital is substantially correct." "The Constitution Bench of this Court in State of Punjab Vs. Baldev Singh has considered various aspects of the compliance of Section 50 of the Act. The Bench has laid down the propositions of law of which the first and second are extracted below: (SCC pp.208-09, para 57) "57.(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing. (2)That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused". 18. The learned counsel would also cite many other judgments for the need of the corroborative evidence to be adduced to that of the official version. For instance two important judgments would be submitted both of the Honourable Apex Court, the first one reported in 2000 SCC (Criminal) 829 (KOLUTTUMOTTIL RAZAK Vs. STATE OF KERALA), wherein, it is held that "Non-compliance with the requirements of Section 4 2 (1) and (2) would render the resultant search and seizure suspect, though that by itself may not vitiate the proceedings. ABDUL RASHID IBRAHIM MANSURI Vs. STATE OF GUJARAT, (2000) 2 SCC 513 relied on. In the second judgment reported in 2001 Supreme Court Cases (Criminal) 42 6 (GURBAX SINGH Vs. STATE OF HARYANA) the Honourable Apex Court has held that "Provisions of Sections 52 and 57 are directory and violation thereof would not ipso facto violate the trial or conviction . However, investigating officer cannot totally ignore these provisions. Such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article." 19. The learned counsel would then submit that presumption under Sections 35 and 54 of the Act has to be followed and citing from the judgments reported in (a) 2002 SCC (Crimes) 1035; (b) 1998 MLJ (Criminal) 46; and (c) 1954 MLJ (Criminal) 156. the learned counsel would exhort that these judgments support the case of the prosecution provided the accused are found in conscious possession of the contraband, but in the case in hand the conscious possession of the contraband by the appellants has not been established and the evidence of the prosecution cannot be relied on since bereft of corroboration by independent witnesses and also since there is considerable doubt about the raising of the presumption under Sections 35 and 54 of the Act. 20. That in the recent decision of the Supreme Court reported in JT 2002 (7) SC 245 (AVTAR SINGH AND OTHERS Vs. STATE OF PUNJAB) regarding possession, it is held as follows: "Possession is the core ingredient to be established before the accused in the instant case are subjected to the punishment under Section 15. If the accused are found to be in possession of poppy straw which is a narcotic drug within the meaning of clause (xiv) of Section 2, it is for them to account for such possession satisfactorily; if not, the presumption under Section 54 comes into play. The word ' possession' no doubt has different shades of meaning and it is quite elastic in its connotation. Possession and ownership need not always go together but the minimum requisite element which has to be satisfied is custody or control over the goods. Can it be said, on the basis of the evidence available on record, that the three appellants  One of whom was driving the vehicle and other two sitting on the bags, were having such custody or control ? It is difficult to reach such conclusion beyond reasonable doubt. It transpires from evidence that the appellants were not the only occupants of the vehicle. One of the persons who was sitting in the cabin and another person sitting at the back of the truck made themselves scarce after seeing the police and the prosecution could not establish their identity. It is quite probable that one of them could be the custodian of goods whether or not he was the proprietor. The persons who were merely sitting on the bags, in the absence of proof of anything more, cannot be presumed to be in possession of the goods. For instance if they are labourers engaged merely for loading and unloading purposes and there is nothing to show that he goods were at least in their temporary custody, conviction under Section 15 may not be warranted. At best, they may be abettors, but, there is no such charge here. True, their silence and failure to explain the circumstances in which they were travelling in the vehicle at the odd hours, is one strong circumstance that can be put against them. The object of examination under Section 313, it is well known is to afford an opportunity to the accused to explain the circumstances appearing in the evidence against him. It is unfortunate that no question was asked about the possession of goods. Having regard to the charge of which appellants were accused the failure to elicit their answer on such a crucial aspect as possession, is quite significant. In this state of things, it is not proper to raise a presumption under Section 114 of Evidence Act nor is it safe to conclude that the prosecution established beyond reasonable doubt that the appellants were in possession of poppy husk which was being carried by the vehicle". 21. Extracting the paragraph from the above judgment the learned counsel would submit that the Special Judge has neither questioned about the appellants' conscious possession nor brought about the incriminating aspects of the nature of evidence and their implications during questioning under Section 313 Cr.PC. and hence, the appellants were not able to give reasonable explanation. 22. The learned counsel would then state that P.W.1 has not followed the mandate laid down under Section 42(1) of the N.D.P.S. Act, wherein, he has to show his reasonable belief or ground for proceeding with the search that in the case in hand only the information has been marked as Ex.P.1 and no material has been marked to show the requirement of law regarding reasonable belief or ground recorded anywhere and would cite the judgment reported in 2002 (5) Supreme 545 (STATE OF ORISSA Vs. LAXMAN JENA) wherein, it is held that "under second part of Section 42(1) of the Act designated officer was under a legal obligation to comply with mandate of proviso to sub-section (1) providing for recording of grounds of his belief to make search in terms