IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 28.11.2011 Coram THE HONOURABLE MS. JUSTICE K.B.K.VASUKI Crl.A.No.1099 of 2004 Umar Farooq .. Appellant/Accused Vs. State by Inspector of Police NIBCID Chennai. .. Respondent/Complainant (Cr.No.42/2002) Prayer:- Criminal Appeal is filed under Section 374 of Criminal Procedure Code against the judgment dated 12.8.2004 made in C.C.No.204 of 2002 on the file of the Principal Special Judge, Special Court under EC and NDPS Act, Chennai. For Appellant :Mr.Ganesh Rajan For Respondent :Mr.C.Balasubramanian, APP J U D G E M E N T The appeal is filed by the accused against his conviction and sentence for the offence under section 8(c) r/w 21(c) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter shortly referred to as NDPS Act). 2.The case of the prosecution is that PW4 then Deputy Superintendent of Police, NIB CID, Chennai received a telephonic message from his informer at 10.45 am on 6.4.2002 as if one Umar Farooq is going to deal with heroin, a narcotic drug in whole and retail sale between 11.45am and 2.00pm on the same day in the junction of Linghi Chetty Street and Mannady Street and the same was recorded in writing by the Deputy Superintendent of Police, who inturn directed PW1, then Inspector of Police, NIBCID to take necessary action on the information. On receipt of such information, PW1, Inspector of Police along with his police party consisting of PW3 Rangasamy, Head constables Mir Mohd Ali and Anbalagan, Murugan, Annadurai, Harihom Namachivaya and Kalyanaraman reached the spot and intercepted the accused and introduced himself and enquired him and collected the particulars about his name, age, father's name and residential address and having ascertained that he was the same person as mentioned in the information, informed him about his right to be searched in connection with the custody of heroin either before the Judicial https://hcservices.ecourts.gov.in/hcservices/ Magistrate or a Gazetted officer and he offered himself to be searched by PW1/Muthahir Hussain, Inspector of Police and the same was recorded in writing by the Inspector of Police and PW1/Inspector of Police asked one Selvam and Mohideen, street vendors to stand as independent witnesses for the search and seizure and as they did not agree to do so, the Inspector of Police obtained signature from PW3/Rangasamy and Head Constable Mir Mohd Ali as witnesses and searched the accused and found him to be in custody of heroin weighing 900 grams kept in white colour bag carried in his hands and the Inspector of Police seized the same under due mahazar in the presence of the police party and he drew two samples of 5 grams each, and the same was separately tied and sealed and the remaining contraband was separately tied and sealed and signatures from the witnesses were obtained in the sealed packets and the accused, the witnesses above mentioned and PW1/Inspector of Police also signed in the mahazar. 3.Thereafter, the accused gave voluntary confession statement and the same was recorded by the Inspector of Police. As the accused was in possession of heroin, narcotic drug, without valid record and permission, he was arrested and brought to the police station along with contraband. The case was registered against the accused in Cr.No.42 of 2002 under Section 8(c) r/w 21 of NDPS Act. The Inspector of Police thereafter sent a special report under section 57 of NDPS Act to the Deputy Superintendent of Police, NIB CID, Chennai and sent telegram to the relatives of the accused in connection with the arrest of the accused and brought the accused to the concerned police station along with the contraband seized under form 95. The investigation was thereafter entrusted to PW5/Manialagan, then Inspector of Police by the Deputy Superintendent of Police, who on receipt of the FIR and other case records, proceeded with the investigation and sent the accused for judicial remand and submitted the contraband to the concerned Court along with requisition for sending the same for chemical analysis. The sample sent for chemical analysis was received back along with report that it consists of 'Diacetyl morphine' known as heroin and Ex.P11 report was received by the court along with remnants of the contraband and the remaining contraband was, after chemical analysis, kept in MO1 sealed polythene bag. The investigation was, in the mean while, completed and the final report was filed against the accused under Section 8(c) r/w 21 of NDPS Act. 4.When the accused was questioned about the charges framed against him, he pleaded innocence and faced trial. The prosecution in the course of trial, examined the Inspector of Police, Scientific officer of forensic science department, police personnel Rangasamy, Deputy Superintendent of Police and the https://hcservices.ecourts.gov.in/hcservices/ Investigation Officer as PW1 to PW5 and produced recorded information, notice under section 50(1) of NDPS Act, seizure mahazar, arrest intimation, FIR, section 57 report, copy of the telegram sent to the relatives of the accused, form 95, inspection memo, requisition from the court to send the samples for chemical analysis, Chemical analysis report, order of the Deputy Superintendent of Police and requisition letter by the Investigation Officer as Exs.P1 to P14, besides, MO1 to MO3 tested and untested sample packet as material objects. No oral and documentary evidence is adduced on the side of the defence. 5.The trial court, on the basis of the available evidence, accepted the prosecution case, on all aspects and found the accused guilty of the offence and convicted and sentenced him for the offence referred to above. Aggrieved against the same, the accused preferred this appeal before this court. 6.The learned counsel for the appellant has in this appeal, seriously questioned the correctness of the order of conviction on the following grounds: (i)mandatory requirement under Sections 42 and 50 is not complied with and the same vitiate entire proceedings. (ii)there is a delay in sending seized articles to court, which would not rule out the possibility of tampering with the contraband (iii)prosecution theory regarding the manner in which, the voluntary confession statement of the accused was recorded, is highly doubtful in nature and (iv)prosecution case, regarding the manner in which, PW1/Inspector of Police identified the accused, is not free from suspicion. 7.The learned counsel for the appellant/accused also in support of his contention, cited the following authorities of the Hon'ble Supreme Court viz., (i) 1994 (3) SCC 299 (State of Punjab v. Balbir Singh); (ii) 1999 (6) SCC 172 (State of Punjab v. Baldev Singh); (iii) 2001 (3) SCC 28 (Gurbax Singh v. State of Haryana); (iv) 2005 (4) SCC 350 (State of H.P. v. Pawan Kumar); (v) 2006 (12) SCC 321 (Ritesh Chakaravarti v. State of M.P.) (vi)2007 (1) SCC 450 (Dilip and another v. State of M.P); (vii) 2009 (8) SCC 539 (Karnail Singh v. State of Haryana) and (viii) 2010 (3) SCC (Cri) 377 (Union of India v. Shah Alam and another); and our High Court viz., (i) 2000 (4) crimes 1 (Ravi and others v. State by Inspector of Police) (ii)2010(1) MWN (Cr.) 494 (Xavier v. State of Tamil Nadu represented by the Inspector of Police, G2 Periamet Police Station, Chennai) (iii)2010 (2) MWN (Cr.) 233 (Mohammed Umar @ Mohammed Salim and others v. The Intelligence Officer, NCB, South Zonal Unit, Chennai) and (iv) 2010 (3) MWN (cr.) 9 (Loosai and Pulithevan v. State represented by the Inspector of Police, G3 Kilpauk Police Station, Chennai-10). 8.Per contra, the learned Additional Public Prosecutor has, https://hcservices.ecourts.gov.in/hcservices/ on the basis of the oral and documentary evidence, sought to defend the order of conviction passed by the trial court. 9.Heard the rival submissions made on both sides. 10.Ex.P1 so called information is said to be received by PW4/ Deputy Superintendent of Police, and the same led to prosecution resulting in the order of conviction which is under challenge in this appeal. The cursory glance at Ex.P1 reveals that it is recorded at 10.45 am on 6.12.2002. Ex.P1 contains another direction to PW1 Inspector to take necessary action on the information, but the Deputy Superintendent of Police has not admittedly sent copy of the same to his immediate superior officer in compliance of Section 42(3) of the NDPS Act, which according to the learned counsel for the appellant, is in serious violation of mandatory requirement under the relevant provisions of law and the same vitiates the prosecution case. 11.Further, the case of the prosecution is that immediately on receipt of the information, PW1 Inspector was directed to take further action. It is in the evidence of PW1 Inspector of Police that he received the information at 11.00am on 6.4.2002 and left the office by 11.15am and that the informer who passed on the message to PW4 was introduced to PW1 in the office and thereafter the informer identified the accused to PW1 in the spot. However, his evidence that the informer was present in the spot, was denied by PW3, who was admittedly one of the police personnel in the raiding party. PW3 in the course of his chief examination stated that the accused was identified by PW1, the Inspector of Police who led the raiding party and PW3 in the course of his cross examination categorically admitted that he did not meet the informer in the spot. Even otherwise, it is hardly not possible that PW4 who received the information at 10.45 am on 6.4.2004 summoned the informer to the office and introduced the informer to PW1 at 11.00 am. When it is the specific case of PW1 that he received information at 11.00 am and left the office at 11.10, the possibility of the informer being introduced to PW1 in the office of NIBCID within 15 minutes is doubtful. Thus, the inconsistency in the evidence of PW1 and PW4 on one hand and PW3 on the other hand, if viewed in the light of the failure of PW1 to mention about the introduction of informer to him in the office by PW4, would lead to a genuine doubt about the prosecution theory in this regard. 12.It is the further case of the prosecution that the accused was intercepted and he was after being informed about his right available under section 50, searched and in the course of such search, heroin was found inside the bag carried on by him in his hands. PW1 in the course of his examination admitted that the possession of the contraband was found out after searching the https://hcservices.ecourts.gov.in/hcservices/ person and the bag. In that event, the search ought to have been held by following the procedure laid down under the relevant provisions of law. Section 50 makes it obligatory on the part of the official to inform the accused about his right to be searched in the presence of any Gazetted officer or nearby Judicial Magistrate and subject to his option, the raiding party is to proceed to search him by any one of the officials in the raiding party. PW1 in support of his such evidence, produced Ex.P2 notice purportedly issued under section 50(1) of the Act to show that the accused was duly informed about his right available under section 50. The perusal of Ex.P2 notice shows that the same was in Tamil and contained the signature of PW1 and police witnesses PW3- Rengasamy and Head constable. It further reveals that the signature of the accused was obtained against 'X' mark at two places in the same document. The attention of this court is at this juncture drawn to Ex.P3, Ex.P4 and Ex.P9 purported to be the seizure mahazar, arrest intimation and inspection memo containing signature of PW1 and the same witnesses and also the accused and in all these documents, the signature of the accused was obtained against 'X' mark. As rightly argued by the learned counsel for the accused, the same raises suspicion as to whether the signature of the accused was obtained in all these documents, after explaining the contents of the same to him and after his having understood and admitted the same as correct. However, no explanation is forth coming from PW1 in this aspect. 13.Notwithstanding the same, the only incriminating substance found against the accused is seizure of contraband from him which is according to the prosecution after duly informing him about his right available under section 50 and after his being duly searched. But in Ex.P2 notice, no mention is made that he was informed about the contents of the same. Further, the seizure is admittedly not in the presence of any independent witnesses. PW1 to PW3 would in this context depose that though two persons by names, Selvam, s/o.Raman and Mohindeen S/o.Khader, small vendors, were summoned to be cited as witnesses, they refused to do so and the same compelled PW1 to cite PW3 and another Head constable as witnesses for the search, seizure of the contraband and arrest of the accused. Though it was stated so in FIR and in the witness box, neither PW1 nor PW5 is able to give any explanation as to why no other independent witness was secured for search and seizure of contraband. Having regard to the spot i.e., junction of Linghi Chetty Street and Mannady Street, Mannady, Chennai, having number of shops located where seizure was made, failure of PW1 to summon any other independent witness appears to be strange. Thus, the failure of the prosecution to conduct search and seizure in the presence of independent witness, as rightly argued by the learned counsel for the accused, by relying upon the judgments cited above, is in violation of statutory requirement under section 50 https://hcservices.ecourts.gov.in/hcservices/ of NDPS Act and vitiates the prosecution proceedings. 14.The law emerges in all the authorities cited on the side of the appellant is that Section 42(2) and section 50 are mandatory and non compliance of the same vitiates the prosecution proceedings and search and seizure of the contraband in the absence of any independent witnesses amounts to failure on the part of the prosecution to comply with the procedure laid down under the Act. However, the prosecution in the instant case failed to establish that the search was held, after the accused was duly informed about his right available under section 50 and on the failure of the prosecution to effect search and seizure in compliance with such mandatory requirement no reliance can be attached to such search and seizure of contraband from the accused which is the only incriminating substance available herein to connect the accused with the offence. 15. It is at this juncture the failure in not sending the copy of the information to his superior officer by the Deputy Superintendent of Police and the absence of any concrete evidence to say about the presence of the informer to identify the accused and the manner in which the signature of the accused was obtained against 'X' mark in the documents to be recollected which would only go to show that the prosecution has not strictly followed the procedure prescribed under the relevant provisions of law and such failure undoubtedly vitiates the entire prosecution case. On that score alone, the order of conviction against the accused is liable to be set aside. 16.Before concluding, one more aspect to be considered herein is the delay in sending the seized contraband to the special court. In this case, the contraband was allegedly seized from the accused under section Ex.P3 mahazar at 12.30 pm. The evidence of the official witnesses is that the samples were drawn and packed, sealed and marked and the contraband was sent to the concerned court under Ex.P8 mahazar along with form 95 on the same date. But the endorsement made in Ex.P8 Form 95 would reveal that the bulk property was produced before the court only on 26.4.2002, on which the date, the bulk in respect of the sample was returned to the police for safe custody so as to produce the same as and when required. Neither PW1 nor PW5/Investigation officer explained the custody of bulk and sample between 6.4.2002 and 26.4.2002, the date on which the same was brought before the special court. There is no other endorsement in Form 95 to show that the sample was received on 6.4.2002 and it was returned for safe custody and again reproduced before the court on 26.4.2002. On the contrary, the endorsement made in form 95 is only on 26.4.2002 and on the same date, the sample was retained and the bulk was returned to the police. In the absence of any explanation about custody of the https://hcservices.ecourts.gov.in/hcservices/ bulk seized during the interval it would not rule out the possibility of tampering with the contraband and it is likely to lead to an inference that the contraband sent for chemical analysis could not be the same contraband seized from the accused. 17.Thus, for the discussion held above, this court is of the view that the prosecution proceedings from inception to conclusion is defective and in violation of mandatory requirement and the same renders the prosecution proceedings to be vitiated. However, the trial court without considering the legal aspects, simply believed the oral evidence of the police officials and passed an order of conviction merely on the basis of seizure and the same resulted in erroneous order of conviction and miscarriage of justice warranting interference by this Court. 18.In the result, the criminal appeal is allowed by setting aside the judgment of conviction dated 12.8.2004 made in C.C.No.204 of 2002 on the file of Principal Special Judge, Special Court under EC and NDPS Act, Chennai and the appellant/accused is acquitted from the charges. The appellant is directed to be set free, if his detention is not required in connection with any other case and the bail bond, if any, executed by the accused shall stand cancelled. Sd Assistant Registrar /True Copy/ Sub Assistant Registrar To 1.The Principal Special Judge, Special Court under EC and NDPS Act, Chennai. 2.The Inspector of Police NIBCID, Chennai. 3.The Public Prosecutor, High court, Madras-104. https://hcservices.ecourts.gov.in/hcservices/ 4. The Assistant Registrar, Criminal Side, High Court, Madras. CO-RBD ths : 03.03.2014 Crl.A.No.1099 of 2004 https://hcservices.ecourts.gov.in/hcservices/