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Irulandi & Others v/s State Rep.by The Inspector of Police, Coimbatore

    Crl.A. Nos. 15, 175 of 2020 & Crl.M.P. Nos. 374, 3184 of 2020

    Decided On, 15 September 2022

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE D. BHARATHA CHAKRAVARTHY

    For the Appellant: C.D. Johnson, A. Nagarajan, Advocate. For the Respondent: S. Vinoth Kumar, Govt. Advocate (Crl.side).



Judgment Text

(Prayer: Crl.A.No.15 of 2020: Criminal Appeal is filed under Section 374 of the Code of Criminal Procedure, to call for the records in C.C.No.30 of 2019, dated 20.11.2019, on the file of the Learned Special Court under EC and NDPS Act Cases, Coimbatore and set aside the same.

Crl.A.No.175 of 2020: Criminal Appeal is filed under Section 374 (2) of the Code of Criminal Procedure, to call for the records in C.C.No.30 of 2019, dated 20.11.2019, on the file of the Learned Special Court under EC and NDPS Act Cases, Coimbatore and set aside the same.)

Common Judgment:

1. On 01.03.2018, upon the orders of the Commissioner of Police, Coimbatore, personnel were drawn from different Police Station and forming a team, a vehicle check was being conducted near Arulmiku Veerapathrasamy Thottammal Kovil, Seeranaickanpalayam Main Road, Coimbatore, within the jurisdiction of B2 R.S. Puram Police Station. While so, when the vehicle being a Qualis Car, bearing registration No.TN 63 X 7777 was intercepted, the accused Nos.1 to 4 were traveling in the said car. Upon check, it was found that four bags, which were kept in the backseat of the Car, contained Ganja. The contraband weighed totally 216 kgs and the accused admitted that they had purchased the same from one Rambabu at Chinthapalli, Visakapattinam, Andhra Pradesh, being financed by the accused No.5, Ranjith Kumar, who gave them Rs.2,00,000/- and after paying a sum of Rs.50,000/- to the said Rambabu and the balance of Rs.1,50,000/- was carried by them. The said Ranjith Kumar had instructed the accused to come to Vadavalli. Therefore, they were proceeding towards Vadavalli in the said car. Thereupon, a case in Crime No.275 of 2018, on the file of B2, R.S.Puram Police Station, Coimbatore was registered and the contraband was duly seized in the presence of independent witness and samples were drawn and the accused were produced before the learned Magistrate, who remanded them to judicial custody.

2. Thereafter, P.W.8 investigated the case and filed Final Report before the learned Additional District and Sessions Court and Special Court under Essential Commodities Act and N.D.P.S Act, Coimbatore. The case was taken on file as C.C.No.30 of 2019, totally against seven accused and charges were framed against them for the offences under Sections 8(c) r/w 20(b)(ii)(c), Section 25 and 27A and Section 29 of the Narcotic Drugs and Psychotropic Substance Act. Upon being questioned, the accused denied the charges and stood trial.

3. To bring home the charges, the Inspector of Police, namely Jothi, the Inspector of Police, who conducted a search and seized the contraband was examined as P.W.1. One Sastha Somasundaram, Sub- Inspector of Police was also part of the search, was examined as P.W.2. One Arjun, who was the witness for the observation Mahazar, was examined as P.W.3. One Hakeem, who accompanied the Police and showed them the place where weighing balance is available, was examined as P.W.4. One Sakthivel, who was the independent witness to the seizure and confession, was examined as P.W.5. One Manikandan, who also witnessed to the confession statement, was examined as P.W.6. One Gnanasekaran, who was also a Sub-Inspector of Police, involved in the search party, was examined as P.W.7. One Venkatesan, the Investigating Officer, was examined as P.W.8.

4. On behalf of the prosecution, Exs.P-1 to P-10 were marked. The sample packets of Ganja was produced as M.O.1 series. The remaining Ganja was produced as M.Os.2 to 5. The Qualis Car was produced as M.O.6 and the cash seized as M.O.7.

5. Upon being questioned about the material evidence and the incriminating circumstances as per Section 313 of Cr.P.C., the accused denied the same as false. Thereafter, no evidence was let in on behalf of the defence.

6. The Trial Court proceeded to consider the evidence on record and after hearing the learned Special Public Prosecutor on behalf of the prosecution and the learned Counsel for the accused and by a Judgment, dated 20.11.2019, acquitted the accused Nos.5 to 7 of all the charges.

7. As far as the accused Nos.1 to 4 are concerned, the Trial Court while acquitting them of other charges, convicted them for the offences under Section 8(c) r/w Section 20(b)(ii)(c) of the N.D.P.S Act and imposed the punishment of Rigorous Imprisonment for ten years and to pay Rs.1,00,000/- each and in default to undergo Rigorous Imprisonment for one year each.

8. Aggrieved by the same, the accused Nos.1 and 2 have filed Crl.A.No.15 of 2020 and the accused Nos.3 and 4 have filed Crl.A.No.175 of 2020 before this Court.

9. Heard Mr.C.D.Johnson, learned Counsel appearing for the appellant in Crl.A.No.15 of 2020, Mr.K.R.Ramesh Kumar, learned Counsel appearing for the appellant in Crl.A.No.175 of 2020 and Mr.S.Vinoth Kumar, learned Government Advocate (Crl. Side) on behalf of the prosecution.

10. Mr.C.D.Johnson, learned Counsel would submit that in this case, as per the case of the prosecution, the Commissioner of Police, Coimbatore, formed a special team to secure the accused in Cr.No.149 of 2018 and therefore, on 01.03.2018 at about 4.00 P.M, P.W.1 formed a special team along with others and was conducting the search near Arulmiku Veerapathrasamy Thottammal Kovil, Seeranaickanpalayam Main Road, Sugarcane Main Road, Coimbatore. While so, they intercepted the said Car at 6.00 P.M and arrested accused Nos.1 to 4 and recorded their confession statement at about 6.15 P.M and the Ganja, car and cash of Rs.1,50,000/-, were recovered under Mahazar/Ex.P-1 at about 10.00 P.M. The First Information Report was registered at about 10.30 P.M. The Observation Mahazar was prepared at 11.30 P.M.

11. On the next day, i.e., 02.03.2018, it is said that they produced the accused along with Form-91, which is marked as Ex.P-5 and it was returned with an endorsement “to be produced along with the property” even while the accused were remanded to judicial custody. On 16.03.2018, P.W.1 sent a requisition to the Trial Court, for the samples to be sent to the Forensic Department for analysis and only thereafter, on 19.03.2018 the Form-91 and the seized contraband were received by the Trial Court. Thereafter, on 21.03.2018, the Trial Court, sent the samples to the Deputy Director, Regional Forensic Science Chemical Laboratory, Coimbatore for chemical analysis of the contraband. On 28.03.2018, the Forensic Analysis Report (Ex.P-10) was received by the Court.

12. In this background, the learned Counsel would submit that firstly, the very fact that P.W.1 and the party consisting of the Sub- Inspector of Police and the Policemen of various Police Stations went to the place of seizure and where conducting a vehicle check-up itself is not supported by any evidence in the form of order of the Commissioner of Police or any copy of any entry made in the General Diary. Therefore, the very theory about the vehicle check-up is very doubtful and it can be seen that the check was conducted on a tip-off. Therefore, if the check was conducted on prior information received by P.W.1, the same ought to have been reduced into writing and the procedure as mandated under Section 42 ought to have been followed. The learned Counsel would submit that in this case the mandatory safeguard of offering to be searched before a Gazetted Officer or before a learned Magistrate was not followed and therefore, the mandatory provision of Section 50 of the N.D.P.S Act, stood violated.

13. He would submit that in the seizure Mahazar, not even the signature was obtained from the accused. He would further submit that at the time of remand of the accused, the properties were not at all produced before the learned Magistrate and the properties were produced after a delay of 19 days before the Trial Court. Absolutely, there is no explanation whatsoever which is made on behalf of the prosecution regarding the custody of the contraband during these 19 days. There is absolutely no evidence of depositing of the said contraband with any Superior officer or in any Police Station or any specific godown maintained for this purpose. Therefore, when the contraband was produced after an unexplained delay of 19 days and the same causes serious doubt on the veracity and the genuineness of the seizure and as to whether the contraband produced was seized from the accused and whether the samples drawn are the one which is produced before the Court. Therefore the accused is entitled to the benefit of doubt.

14. The learned Counsel would further submit that in this case, the grounds of the arrest, was not informed to the relatives of the accused, therefore, Section 52(1) is violated. In this case, no Special Report under Section 57 of the Act, to the superior officer, is marked, therefore, Section 57 of the Act stood violated.

15. The learned Counsel would further submit that there are contradictions as to the material part of evidence as to where the contraband was weighed, since it was not weighed at the place of seizure itself. Since P.W.4 who accompanied has not signed in the Mahazar, and the same throws considerable doubt on the very seizure itself. It is seen that the entire case is artificial in nature, inasmuch as all the statements are computer typed and the print out of the confession statement, the observation Mahazar, and etc., were instantly taken. It creates a grave doubt about the entire seizure as projected by the prosecution that it is artificial and stage-managed.

16. The very fact that the owner of the vehicle was not even traced out, would further make the case of the prosecution doubtful. This apart the learned Counsel would submit that the following contradictions in the evidence on record, which reads as follows:-

“TAMIL”

Whereas as per Ex.P5 viz., Form 91 submitted before the Learned Judicial Magistrate No.1, Coimbatore on 02.03.2018 and the same was returned on the same day with an endorsement as “To be produced along with property”. Again on 19.03.2018, for 91 along with property submitted before the Learned Additional District and Sessions Judge and Presiding Officer, Special Court E.C. Act Cases, Coimbatore, No explanation for keeping the property under whose custody...”

17. Mr.Ramesh Kumar, learned Counsel also appearing on behalf of the appellants, submitted that the procedure as mandated under Section 42(2) is not followed in this case and for the proposition that it is a mandatory provision and the lapse is impermissible he relied upon the Judgment of the Hon'ble Supreme Court of India, in Boota Singh and Ors., Vs. State of Hariyana(2021) SCC OnLine SC 324), more specifically paragraphs Nos.14 to 17. The learned Counsel would submit that the accused was not given a choice and were not informed about the search before the Gazetted Officer or Magistrate and therefore, Section 50 of the N.D.P.S Act stood violated and in this regard, he relied upon the Judgment of this Court, in Shajahan Vs. State (2018 SCC OnLine MAD 2453), more specifically paragraph Nos.10 to 12. The learned Counsel would also rely upon the Judgment of the Hon'ble Supreme Court of India, in Sanjeev Vs. State of Himachal Pradesh (2022) 6 SCC 294), for the same proposition, more specifically paragraph No.10. The learned Counsel also submitted that there is also non-compliance of Section 52(1) of the N.D.P.S Act, and since, the Arresting Officer did not inform the grounds of arrest, Section 52(1) stood violated. In this regard, the learned Counsel relied upon the Judgment in Gurbax Singh Vs. State of Haryana (2001) 3 SCC 28), morefully relying upon paragraph No.9 of the said Judgment. The learned Counsel would contend that the seized articles should have been forwarded immediately to the Court and the delay in respect thereof is violative of Section 55 of the Act and in this regard, he relied upon the Judgment in Shajahan Vs. State(2018 SCC OnLine MAD 2453) morefully relying upon paragraphs Nos.14 and 15 of the said Judgment. For the proposition that undue delay in forwarding the contraband before the Court would result in acquittal, the learned Counsel would rely upon the Judgment in Dhanraj Vs. State (in Crl.A.No.319 of 2012, dated 13.03.2019), more specifically relying paragraphs Nos.17, 31, 33, 43, 51, 52, 55, 56 and 78 of the said Judgment. The learned Counsel also relied upon the Judgment in Mohandass Vs. State (in Crl.A.No.204 of 2018, dated 13.07.2022), for the same proposition. The learned Counsel also submitted that in this case, no report was sent to the immediate Superior Officer as per Section 57 of the Act and for the said proposition, relied upon the Judgment of Gujarat High Court, in State of Gujarat Vs. Paramjit @ Kali Himmatsingh Chima(Crl.A.No.971 of 2006 dated 08.04.2022), morefully relying paragraph No.8 of the said Judgment.

18. Per contra, Mr.S.Vinoth Kumar, the learned Government Advocate (Crl. Side) would submit that in this case, there was no prior information or secret information to P.W.1 and therefore, there was no question of reducing the same into writing and forwarding the same to the Superior Officer as mandated under Section 42 of the N.D.P.S Act. The contraband was seized accidentally while the search party was formed for a different purpose. The contraband is not recovered from the person of the accused, but, from the rear seat of the Car in four bags and therefore, there was no necessity for compliance of Section 50 of the N.D.P.S Act.

19. As far as Sections 52 and 57 are concerned, the same are only directory and in this case, no prejudice whatsoever has been caused to the accused and therefore, the submissions have to be rejected. He would submit that in this case, the search was duly conducted, the seizure was made and the samples were tested and proved to be Ganja. The huge haul of Ganja, weighing 216 kgs along with a Qualis Car and Cash of Rs.1,50,000/- seized, were all produced before the Trial Court. The entire seizure was in the presence of independent witness, who was examined as P.W.5. The case of the prosecution cannot be doubted at all in the facts and circumstances of the case and therefore, the Trial Court has convicted only for the offence of conscious possession of the contraband. The contraband was contained in four bags i.e., 55, 55, 55 and 51 kgs each. The conscious possession is clearly made out and the prosecution has discharged its duty of proving all the foundational facts in this case, and thereafter, the defence failed to discharge its onus in any manner disproving the seizure or conscious possession, the Trial Court has rightly convicted the appellants/accused.

20. I have considered the rival submissions made on either side and perused the material records of this case.

21. At the outset, from the evidence of P.W.1 and P.W.2, it is very clear that the search of the vehicle was made for a different purpose of nabbing the accused in different crime numbers. While so, the accused Nos.1 to 4, who were traveling in the Qualis Car, came in a high speed and upon being stopped, behaved indifferently, which lead to the seizure of contraband. Therefore, in this case, there is no prior information, and thus, the requirement of reducing the same into writing or forwarding the same to the Superior Officer, etc., under Section 42 of the Act, did not arise. Therefore, the submissions of the learned Counsel in this regard, does not merit acceptance.

22. The mere fact that any order of the Commissioner of Police is not produced or the General Diary entry is not produced, will not in any manner give rise to any inference that only on a prior tip-off, the search was conducted. Therefore, I am unable to accept the submissions made by the learned counsel in this regard.

23. As far as the non-compliance of Section 50, is concerned, admittedly, in this case, the contraband was found in four bags in the rear seat of the Qualis Car, therefore, the same was not recovered from the person of the accused. The said position is now very clear from the following Judgment of the Hon'ble Supreme Court of India, in Dayalu Kashyap Vs. The State of Chhattisgarh (2022 Live Law (SC) 100), therefore, in this case, the compliance of Section 50 of the Act, does not arise.

24. As far as the compliance of Section 52, the requirement of informing the grounds of arrest to the accused, P.W.1 has explained in the cross-examination that he did not arrest the accused immediately as the accused had voluntarily given a confession statement and he was taking steps to record the confession statements. Therefore, even though in this case, the contention of the learned Counsel for the appellants is factually correct to say that P.W.1 or any other witness have not deposed about the formal compliance of Section 52 of the N.D.P.S Act, even then the accused made confession statement leading to the recovery, the non-informing of the grounds of the arrest becomes technical in nature, not causing any serious prejudice to the accused.

25. Similarly, even though the learned Government Advocate (Criminal side) would submit that this is an accidental haul and therefore, P.W.1 did not inform the Superior Officer, in writing, the mere fact that the contraband seized by the regular police would not in any manner absolve the requirement of Section 57 of the Act. But, however, Section 57 is a directory and not mandatory and unless the appellants are able to prove that the non-compliance would result in serious prejudice to the defence and the same would not be fatal to the case of the prosecution. In this case, I do not find any serious prejudice to the appellants on account of the noncompliance of Section 57 of the NDPS Act.

26. The primary contention made by the learned Counsel for the appellants is that in this case, the very authenticity and pristine nature of the contraband seized is in grave doubt as there is a delay of 19 days in producing the seized contraband before the trial court. They would submit that even the version of P.W.1 that they produced the contraband before the learned Judicial Magistrate, on the very next day, is against the documentary evidence on records as the endorsement of the learned Judicial Magistrate in Ex.P5/Form 91, is “to be produced along with property”. P.W.1, in the cross-examination or in the Chief examination has not spoken about the custody of the contraband for these 19 days. He did not depose that whether the contraband was deposited in the Police Station, or was forwarded to the higher officials. Therefore, the learned Counsel would strenuously contend that the delay of 19 days is fatal. In this regard, the following factors have to be taken into account:-

(i) Even though there is an endorsement in Ex.P5 “to be produced along with property”, there is also an endorsement below with the words “ Sir, resubmitted” the said endorsement coupled with oral testimony of P.W.1 that he forwarded the entire contraband to the learned Judicial Magistrate on the very next day and the same was not accepted with oral direction, to produce the contraband before the Special Court is to be taken note of. It is common knowledge that until the decision of the Court, in Dhanraj Vs. State, the learned Judicial Magistrates were not receiving the contraband and were directing the same to be produced before the Special Court. To this extent, the evidence of P.W.1 is believable;

(ii) As far as the delay of 19 days is concerned, P.W.1 is the Inspector of Police, attached to the B2, R.S.Puram Police Station and therefore, unlike the other Seizing Officers, there is no separate occasion for him to hand over the contraband to the Police Station;

(iii) This apart, the seizure is huge haul of four bags full, totally weighing of 216 kgs. Further, along with the contraband, the cash of Rs.1,50,000/- and the TATA Qualis Car were also seized.

Therefore, in this factual scenario, even though the delay of 19 days is unexplained by the prosecution, I am of the view that the said 19 days of delay, does not throw any doubt as to the authenticity of the contraband itself or in any manner cause serious prejudice to the defence of the accused. Therefore, I reject the said contention of the learned Counsel for the appellants.

27. Now, coming to the various contradictions pointed out by the learned Counsel, which is extracted above, a reading of the same itself, it would be clear that those were not material in nature. In this regard, it is relevant to refer to the dictum of the Hon'ble Supreme Court of India, in Sahabuddin and Another Vs. State of Assam (2012) 13 SCC 213), and paragraph No.21 reads as follows :-

“21. Every variation or immaterial contradiction cannot provide advantage to the accused. In the facts and circumstances of the present case, variation of 45 minutes or an hour in giving the time of incident will not be considered fatal. It is a settled principle of law that while appreciating the evidence, the court must examine the evidence in its entirety upon reading the statement of a witness as a whole, and if the court finds the statement to be truthful and worthy of credence, then every variation or discrepancy particularly which is immaterial and does not affect the root of the c

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ase of the prosecution would be of no consequences. Reference in this regard can be made to State v. Saravanan [(2008) 17 SCC 587 : (2010) 4 SCC (Cri) 580] . „ 28. Therefore, when in a case of this nature, where 216 kgs of Ganja, were recovered, when number of witnesses including, the Sub- Inspector of Police and independent witnesses were examined, minor contradictions are bound to be there and the same would not in any manner be taken as fatal in nature, once the seized lot is proved to be a contraband (Ganja), through scientific evidence. Therefore, the said contention of the learned Counsel is also liable to be rejected. 29. It is seen that the various Judgments relied by the learned Counsel as extracted supra, is for the respective proposition, laid down therein and there is no quarrel about the propositions laid down in the said Judgments, but, on facts as held above, it is held that there is no requirement of the mandatory compliance of Section 42 and 50 of the Act. Similarly, no prejudice was caused on account of non-compliance of other violations as pointed out. 30. As a matter of fact, in respect of the delay, the Judgment of S.Rajan Vs. State Asst.Collector of Customs (Intelligence) Madurai (1994) SCC Online Mad 295 : 1995 Cri LJ 1594), by this Court relates to the seizure of 200 kgs of Ganja and when there is a delay of 65 days in producing the same before the Trial Court. This Court had held that the same gives room for doubt. Whereas in the instant case, the contraband is weighing 216 kgs and the delay was only 19 days. Similarly, even though the Judgment of this Court in Dhanraj Vs. State, the question arose about not establishing malkhanas as directed by the Hon'ble Supreme Court of India, and therefore, this Court had given directions by the said Judgment on 13.03.2019, and this case was prior to the said directions. 31. Therefore, I find no merits in the appeals preferred by the appellants/accused Nos.1 to 4. The Trial Court finding no evidence in respect of other offences and finding concrete evidence and in respect of conscious possession of the contraband being commercial quantity, rightly imposed only a minimum sentence on the appellants, which does not call for any interference. Accordingly, these Criminal Appeals are dismissed. Consequently, the connected miscellaneous petitions are closed.
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