Bail Slip The Petitioner/ Accused was directed to be released on bail as per the order of the Court made in Crl.MP.2506/06 in Crl.A.No.341/06 dated 18.4.06. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE :05.10.2009 CORAM THE HONOURABLE MR.JUSTICE T. SUDANTHIRAM Criminal Appeal No.341 of 2006 Kannan .. Appellant / Accused Versus State rep. By The Inspector of Police, NIB CID, Salem. .. Respondent / Complainant Criminal Appeal filed against the Judgment dated 27.03.2006, made in C.C.No.111 of 2005 on the file of the learned Special Judge (Essential Commodities Act), Salem. For Appellant : Mr.V.M.R.Rajendran For Respondent : Mr.J.C.Durairaj Government Advocate (Crl.side) JUDGMENT The appellant herein, who is an accused in C.C.No.111 of 2005 on the file of the learned Special Judge (Essential Commodities Act), Salem, stands convicted for an offence punishable under Section 8(c) r/w 20 (b) (ii) (b) of NDPS Act and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for a period of three months. Aggrieved by the said conviction and sentence, the appellant herein had preferred this criminal appeal. 2. The case of the prosecution, in brief, is as follows:- P.W.2 was the Head Constable of NIB, Salem. On 10.05.2005 at about 3.00 p.m., he received an information that the accused was likely to smuggle the contraband and on receiving the https://hcservices.ecourts.gov.in/hcservices/ said information, he obtained permission from the Inspector of Police and went to the Salem Town, Pallapatti New Bus stand along with P.W.1 and other constables and from 4.00 p.m., they kept watch. At that time, he saw the accused coming with a white bag and on being identified by the informant, P.W.2 showing his identity card to the accused, enquired him. The accused informed P.W.2 about his name and address. P.W.2 informed him that he got an information that the accused is having Narcotic Drugs and he has to be searched and the search can be made either in the presence of the Judicial Magistrate or before the gazetted officer and after informing his right to be searched, he obtained the signatures from the witnesses and the accused under Exs.P.1 and P.2. P.W.2, thereafter calling the independent witnesses, as they refused to stand as a witness, in the presence of P.W.1-constable, searched the white bag, which the accused was carrying and on opening the bag, he found ganja. He weighed the ganja and it was about 2.150 Kgs and took two samples, each weighing 25 grams and sealed the same. The remaining ganja was also sealed. A mahazar Ex.P.3 was prepared and in the mahazar, the signatures of the witnesses viz., P.W.1-constable and another constable Easwaramurthy were obtained and the signature of the accused was also obtained. P.W.2 arrested the accused and the arrest memo is Ex.P.4. P.W.2 brought the accused to the Police Station and registered a case in Crime No.49 of 2005 for an offence punishable under Section 8(c) r/w. 20(b) (ii) (b) of NDPS Act and prepared Ex.P.7, First Information Report. He also gave a report under Ex.P.8 to the Inspector of Police. (ii) P.W.4, Inspector of Police, who received the copy of the First Information Report, took up further investigation and examined the witnesses. He sent the accused to custody and also sent the properties to chemical analysis for chemical examination. (iii) P.W.3, Chemical Analyst, who received the samples had examined them and found that the samples were ganja. Ex.P.10 is the chemical analysis report issued by P.W.3. After completing the investigation, P.W.4 laid a final report against the accused. 3. To establish the case, the prosecution examined four witnesses as P.Ws.1 to 4, marked eleven exhibits as Exs.P.1 to P.11 and produced three material objects as M.Os.1 to 3. 4. After the examination of the witnesses, the accused was questioned under Section 313 Cr.P.C. with regard to the incriminating circumstances and he denied his complicity. Thereafter, the accused also examined himself as D.W.1 and marked seven defence exhibits as Exs.D.1 to D.7 . 5. The Trial Court, after analyzing the evidence, convicted the accused as stated above. https://hcservices.ecourts.gov.in/hcservices/ 6. Mr.V.M.R.Rajendran, learned counsel for the appellant has submitted that the case was foisted against the accused by the police due to some motive and the accused himself was examined as D.W.1 and he deposed as to why the police had foisted the case against him. But, according to the learned counsel, the Trial Court did not consider the evidence of D.W.1.and The learned counsel for the appellant further submits that though the accused is said to have been arrested in a busy public place at 4.15 p.m., no independent witnesses had been examined and the evidence of police personnel only is available. 7. Mr.J.C.Durairaj, learned Government Advocate (Crl.Side) has submitted that though the accused himself was examined as D.W.1 and deposed that the case was foisted against him, at the time of remand, he has not stated anything before the learned Magistrate. He has further submitted that though the independent witnesses were called by the police to stand as a witness as they refused to stand as a witness, police constables themselves were made as a witness for the seizure of contraband and the accused also signed in the recovery mahazar Ex.P.3. 8. This Court considered the rival submissions made by both parties and also perused the evidence of the witnesses and other records. 9. According to the prosecution case, P.W.2 had received information and only thereafter he went to the scene of occurrence. But he had not taken any respectable witness along with him. P.Ws.1 and 2 also admitted that the place of occurrence viz., Salem bus stand is busy place and admittedly persons were available. But, according to P.Ws.1 and 2, though the independent witnesses were called, they had refused to stand as a witness. P.Ws.1 and 2 had not given any details about the persons whom they called to stand as witness. It is not the case of P.W.2 that the action was taken against the persons, who refused to stand as a witness. 10. 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).” 11. P.Ws.1 and 2 have not established by their evidence that they made a genuine attempt to secure independent witnesses to stand as a witness for search and seizure of contraband. P.Ws.1 and 2 have not even given the name of witnesses, who were called to stand as a witness and who refused to do so and why no action was taken against those persons as per Section 100(8) Cr.P.C. The evidence of P.Ws.1 https://hcservices.ecourts.gov.in/hcservices/ and 2 that independent witnesses were called and they refused to stand as a witness cannot be accepted. Even in Ex.P.3 mahazar, the earlier documents in this case, it is not mentioned that independent witnesses were called to stand as a witness and they have refused to stand as a witness and therefore, P.W.1 and another constable were made as mahazar witnesses. The failure to mention about the non- availability of the independent witness in Ex.P.3 mahazar affects the prosecution case. 12. In this case, the accused has got into the box and examined himself as a defence witness. The accused in his evidence as D.W.1, had stated that at the time of occurrence, he was a first year L.L.B. student in Rajiv Gandhi College and on the date of occurrence, he was going in a Yamaha motor cycle via B.S.C. Arts College. At that time, a tata sumo vehicle dashed against his vehicle and therefore, there was a quarrel among them. The accused had beat the driver of the tata sumo vehicle and left the scene and as he got down near Petrol bunk, he was forcibly taken in the tata sumo vehicle to the Salem police station and a false case was foisted against him. He was threatened and signatures were obtained in the documents. D.W.1 had also been cross examined by the Prosecutor. But nothing has been brought out in the cross-examination to discredit the evidence of D.W.1. 13. For all the aforesaid reasons, the conviction and sentence imposed on the accused is set aside and this criminal appeal is allowed. The bail bond executed by the accused shall stand cancelled. The fine amount if any paid shall be refunded forthwith. jrl Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar To 1. The Special Judge (Essential Commodities Act), Salem. 2. The Public Prosecutor, High Court, Madras 104. 3. The Inspector of Police, NIB CID, Salem. 4. The Superintendent,Central Prison Coimbatore. Crl.A.No.341 of 2006 LA(CO) VC(22.10.2009) https://hcservices.ecourts.gov.in/hcservices/