BAIL SLIP The appellant herein viz. Rajendran, accused in C.C.No.362 of 2001 on the file of the Special Court for EC/NDPS Act cases for the Districts of Coimbatore, Erode and the Nilgiris at Coimbatore was directed to be released on bail as per orders of this court dated 23.1.2002 made in CMP.No.16 of 2002 in C.A.No.3 of 2002. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 18.03.2008 CORAM THE HONOURABLE MR.JUSTICE T. SUDANTHIRAM Criminal Appeal No.3 of 2002 Rajendran ..Appellant/accused Versus State rep. By the Inspector of Police NIB CID Coimbatore (Crime No.61 of 2001) .. Respondent/complainant Criminal Appeal filed against the Judgment dated 14.12.2001, made in C.C.No.362 of 2001, on the file of the learned Special Judge for EC/NDPS Act Cases, Coimbatore. For Appellant : Mr.J.Pothiraj For Respondent : Mr.J.C.Durairaj Government Advocate (Criminal side) JUDGMENT The appellant stands convicted by the learned Special Judge for NDPS Act Cases, Coimbatore, for an offence punishable under Section 20 b (i) NDPS Act and sentenced to undergo 18 months rigorous imprisonment and to pay a fine of Rs.4000/- in default to undergo six months rigorous imprisonment. Aggrieved by the said conviction and sentence, the appellant had preferred this appeal. https://hcservices.ecourts.gov.in/hcservices/ 2. The charge against the accused is that on 02.09.2001 he had been in possession of 2 kilograms of ganja. 3. The case of the prosecution, in brief, is as follows: P.W.1, Sub Inspector of Police NIB CID received a telephonic message on 02.09.2001, that one person is to bring ganja near Aryavaidhya College at Mangarai. P.W.1 reduced that information in writing Ex.P.1 and went to the scene of occurrence along with other constables. At 12.00noon, the informant identified the accused who was coming from west to east carrying a plastic bag on his right hand and P.W.1 intercepted him and informed him that accused have the right to search before the Judicial Magistrate or gazetted officer and as the accused, declined it and accepted the search by P.W.1 himself it was written in Ex.P.2 and signature of the accused was also obtained. P.W.1 searched the bag of the accused in which ganja was found. He weighed the ganja and it was about 2 Kgs and took two samples weighing 25 grams. He arrested the accused and the arrest memo is Ex.P.3 and also prepared the mahazar Ex.P.4. P.W.1 brought the accused to the Police Station and registered the case in Crime No.61 of 2001 and prepared Ex.P.6 FIR. P.W.4 Inspector of Police took up further investigation and examined the witnesses. The sample was sent for analysis and chemical analysis report Ex.P.9 was received on 18.09.2001. On completing the investigation P.W.4 laid the charge sheet on 05.03.2001. 4. The prosecution has examined 4 witnesses, marked 11 exhibits and produced 4 material objects. When the accused was questioned under Section 313 Cr.P.C with regard to the incriminating circumstances, the accused had denied the same. 5. Two defence witnesses were also examined by the accused. P.W.1 stated that he knew the accused who is the neighbour for the past five years and on 02.09.2002, when he was sleeping, he identified the house of the accused to the persons who came in a Car and later she came to know from the accused's wife that police had taken the accused. 6. D.W.2 who is also a neighbour stated that he knows the accused and on 02.09.2001 while she was standing near by the water pipe, the accused told her that her son was taken by Police. 7. The learned counsel for the appellant submitted that though the accused is said to have arrested in a public place at the day time, no independent witness had been examined, and the https://hcservices.ecourts.gov.in/hcservices/ evidence of Police official only is available. The learned counsel for the appellant submitted that the evidence of D.W.1 and D.W.2 show that the accused was taken from his house by the Police. The non compliance of Section 100 Cr.P.C vitiates the prosecution case. 8. Mr.J.C.Durairaj, learned Government Advocate (Criminal Side) submitted that it is the evidence of P.W.1 that the independent witnesses have not come forward to stand as a witness at the time of seizure and therefore, P.W.2, the Police Constable himself was made as a witness and his signature was obtained in the mahazar. The evidence of P.W.1 is corroborated by P.W.2. The learned Government Advocate further submitted that Section 100 Cr.P.C is not a mandatory one and therefore non compliance would not affect the evidence of P.W.1 and the conviction on the accused. 9. This Court considered the rival submission made by both parties and also perused the evidence of the witnesses and other records. In Ex.P.1, the information said to have been recorded by P.W.1, the name of the accused is not mentioned. It is only said that one person is about to come to the scene of occurrence with the contraband. This information is said to have been recorded at 10.45 a.m., P.W.1 had gone to the scene of occurrence with the informant only at 12.00noon and the accused had come to the spot at 12.15p.m. P.W.1 had not taken any steps to take any of the witnesses along with him before going to the scene of occurrence. Even after going to the scene of occurrence, he had not asked anyone to come as a witness. After intercepting the accused, though it is his evidence that he informed the accused that he has right to be searched either before the Judicial Magistrate or before any Gazetted Officer, when such a valuable right has not been utilized by the accused and the search by P.W.1 himself has been accepted by the accused, the search was not made in the presence of any independent witnesses. It is the evidence of P.W.1 that he called the witnesses, but no one has come forward to stand as a witness. 10. Section 100 (3) and (4) is as follows: “100. Persons in charge of closed place to allow search:- (3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made such person https://hcservices.ecourts.gov.in/hcservices/ may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. (4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them to do so.” Therefore the requirement of Section 100(4) Cr.P.C is that before making search, he should called upon two or more independent and respectable inhabitants. From the evidence of P.W.1, it is not clear as to whom he called as witnesses. At the same time, he admits in cross examination that at the scene of occurrence, there were a Church, tea shop and houses. Further it is not also clear as to how many persons he called and how many refused to stand as a witness. 11. It is true that Section 100 (4) is not mandatory, but at the same time, the evidence given by the Police Official should be convincing to court. If no witness is available at the spot and if it is not possible for the Police Officer to secure any witness even after his genuine attempt, then it is possible for the court to accept the evidence of the Police Officer alone. 12. Section 100(8) Cr.P.C reads as follows: “(8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this Section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under Section 187 of the Indian Penal Code (45 of 1860).” 13. To establish the genuine attempt made by P.W.1 to secure the witness, P.W.1 ought to have given the particulars of persons whom he called to stand as a witness and whether he has taken any action against the persons who had refused to stand as a witness. 14. As P.W.1 had not given any specific and convincing evidence with regard to the fact that he called independent witness and they have refused to stand as a witness, this Court https://hcservices.ecourts.gov.in/hcservices/ is not accepting the evidence of P.W.1, as his evidence with regard to search and seizure. Even in Ex.P.4 mahazar, which speaks about the alleged seizure, it is not mentioned that any of the witnesses were called to stand as a witness and only as they denied the Police constables were made to stand as a witness. Ex.P.4 seizure mahazar is the earliest document in this case and non-mentioning about non-availability of the independent witness in Ex.P.4 affects the prosecution case. 15. For the aforesaid reasons, the conviction and sentence imposed on the accused is set aside and the appeal is allowed. The fine amount if any paid shall be refunded forthwith. ksr Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. To 1. The Special Judge for EC and NDPS Act Cases, Coimbatore. 2. The Public Prosecutor, High Court, Madras 104. 3. The Inspector of Police, NIB CID Coimbatore. 4. The Superintendent Central Prison Coimbatore. 1 cc to Mr.J.Pothiraj, Advocate, SR.15455 rs (co) dv/4.4. Criminal Appeal No.3 of 2002 https://hcservices.ecourts.gov.in/hcservices/