(Prayer:Criminal Appeal filed to set aside the conviction and sentence made in C.C.No.103 of 2008 dated 12.12.2012 on the file of the Principal Special Judge, Special Court under E.C., and NDPS Act, Chennai-104.)
1. The instant Appeal has been instituted against the judgment dated 12.12.2012 rendered by the Principal Special Court under E.C., and NDPS Act, Chennai-104, in C.C.No.103 of 2008 whereby the appellant/accused who was charged with and tried for commission of offences u/s.8 (c) r/w. 20(b) (ii) ( C ) of NDPS Act, 1985 and has been convicted and sentenced to undergo R.I., for 10 years and to pay a fine of Rs.1,00,000/-,(Rupees One Lakh only), in default, to pay a fine amount, to undergo further R.I., for 6 months.
2. The case of the prosecution in a nutshell is that:
On 08.02.2008, the Sub Inspector of Police, NIB, CID., Tr.Kannan was on duty in the Station, at about 10.00 a.m., he had received an information from his informant that one person was carrying ganja. The information was recorded and forwarded to the Superior Officer, by 10.15 a.m., Then, after getting permission, he along with R. Arulkumar, Head Constable (1311), S.Murugan, a Gr.I Police - 23360, and A.Peter, Head Constable left the station by 10.30 a.m., reached Moore Market car parking available near Central Railway Station, where they had seen a male standing with five rexine bags and he was identified by the informant. The Sub Inspector of Police apprehended him and enquired him. The said person replied in Telugu. The Sub Inspector, then with the help of R. Arulkumar, the Head Constable, who knew Telugu, introduced himself with the said person and enquired him. The person has stated his name as Chinnarao, aged 22 years, S/o.Balaiya, belonged to Vagaballi Village, Nurmathi Post, Gimadugula Mandalam, Vaisag District, Andhra Pradesh. Two independent witnesses, one Kumar, a car driver and Shunmugam, a fruit seller in a push cart were called as witnesses but they refused to give consent. The Sub Inspector, then nominated Head Constable, Arulkumar and Gr.I Constable Murugan as witnesses. The Sub Inspector of Police asked the accused, whether he had to be searched in the presence of Judicial Magistrate or Gazetted Officer, as the accused had a right under NDPS Act. The accused told that not necessary and the Sub Inspector, himself can conduct the search. The same was reduced into writing and the signatures of the accused and witnesses were obtained. The accused handed over all the five rexine bags one after another. The first rexine bag, printed as Action Success contained 10 kilos of Ganja, in which two 50 gram packs were collected, sealed and labelled as S1 and S2. The bulk ganja was also packed and sealed and serialized as P1. The second bag printed as Adison, contained 10 Kila grams of Ganja, two 50 grams were collected and samples were packed, sealed and labeled. They were serialized as S3 and S4. The bulk ganja was packed and sealed and serialized as P2. Another bag, printed as Adison, contained 11 kilograms of ganja, two 50 grams were collected as samples and the sample ganja was packed and sealed, the samples were labeled as S5 and S6 and the bulk was labelled as P3. The 4th bag printed as Polo Sport , contained 8 kilo grams of Ganja, two samples, each weighing 50 grams were collected, samples and bulk were packed and sealed. Samples were labeled as S7 and S8, bulk was labeled as P4. Then, the 5th bag printed as Reebok was opened and found to contain 11 kilograms of Ganja. Two 50 grams of samples were collected and the samples and bulk ganja was sealed and labeled. The samples were labeled as S9 and S10 and the bulk ganja was labeled as P5. The bulk ganja and sample ganja were recovered under Mahazar by 12 a.m., and at 1.00 p.m., accused gave confession in Telugu, which was translated by Head Constable(1311), the Sub Inspector recorded the same in Tamil. The accused was arrested by 1.30 p.m., for possession of ganja without, valid licence or permit. The accused was taken to the police station by 2.00 p.m., On the basis of report submitted by the Sub Inspector of Police, U/s.57 of the NDPS Act, the Inspector has registered a case against the accused in a Cr.No.19/2008, U/s. 8 (c) r/w. 20(b)(ii)(C) of the NDPS Act. The Inspector of Police examined the witnesses after received the analysis report from the Forensic Department on 28.03.2008 and after completed the investigation he filed final report against the accused before the Special Court.
3. Based on the above materials objects the Special Court has framed the charges against the accused for offences under Section 8(c) r/w 20(b) (ii) (c) of NDPS Act 1985. The accused was denied the same in order to prove the case of the prosecution, as many as four witnesses have been examined and eleven documents have been exhibited and fifteen material objects have been marked on the side of prosecution.
4. Out of the said witnesses PW.1, who is a Scientific Assistant in the Forensic Science Department, at Chennai, has spoken about receipts of ganja samples for analysis and after analysis sent a report to the Court. PW.2 is the Sub Inspector of Police (NIBCID) and he has spoken about the receiving of information from the informant and communicated the same to the Inspector of Police. After obtaining permission, he madeasearchand recovered the ganja from the accused, as per the procedure. PW.3, is the Head Constable in (NIB CID), Chennai and he has spoken about his presence during thesearch and recovery of the contraband from the accused and stood as witness for the same. PW.4 is the Investigation Officer, and he has spoken about registration of case against the accused after received the report from PW2 and filing of final report against the accused before the Special Court.
5. The accused has been examined under Section 313 Cr.P.C with reference to the incriminating materials put forth before him. He has denied the allegation made against him. His defence is one of total denial of the allegations made against him. The Trial Court convicted and sentenced the accused as noticed herein above.
6. The learned counsel for the appellant would submit that seizure was effected in the public place situated in a busy locality, nearby Central Railway Station, Chennai. The seizure and recovery proceedings had not been done in the presence of the independent witness and violated the provision of Section 50 of NDPS Act, which is mandatory. Further, he would submit that there are certain contradictions between the witnesses and the evidence of the witnesses about the number of rexine bags seized and the accused is no way connected with the material objects marked in this case. The prosecution has failed to prove the case beyond reasonable doubt and hence, the accused is entitled to acquittal.
7. The learned Additional Public Prosecutor opposed the arguments advanced by the learned counsel appearing for the appellant and he would submit that investigating agency has observed the norms and followed the procedure as contemplated under law and there is no violation on the part of the Investigating Agency. Further, the accused did not deny the recovery of material objects from him. The evidence of PW.1 and report of the Forensic Science Department would clearly prove that the material object seized weighing more than 50 kilograms from the accused was prohibited under law. Therefore, the prosecution has clearly proved the case beyond all reasonable doubt and the conviction of the appellant does not require any interference.
8. I have considered the above submissions made by the learned counsel appearing on either side and perused the materials available on records carefully.
9. I have considered the above submissions made by both the learned counsel appearing on either side and perused the materials available on records. PW.1 was working as Scientific Assistant, in the Forensic Science Department at the relevant point of time at Chennai. He has deposed that he had received the sample for analysis from the Special Court, through Head Constable Natarajan. On 20.02.2008, along with requisition from the said Court, he verified the sample packs and the seal affixed on it, then compared with the seal affixed with the requisition letter sent by the Special Court. After completion of analysis, a report (Ex.P2) was sent to the Special Court. It proves the presence of cannabinoids in the material objects.
10. PW.2 is the Seizure Officer, who was working as Sub-Inspector of Police, has deposed that on 08.02.2008 at about 10 a.m. when he was in the office he had received an information from his informant that the accused was carrying ganja and he could be secured with ganja between 11.00 a.m., to 14.00 p.m., near Moore market car parking at Central Railway Station. He recorded the said information and forwarded the same to the Inspector of Police. The Inspector of Police permitted him to proceed further. He, along with necessary instruments and with the Head Constable Arulkumar(1311), Gr.I Police, S. Murugan and Head Constable A. Peter went to the Moor Market Car Parking, at Chennai Central Railway Station by 11 a.m. There, the accused was standing with five rexine bags. The informant identified accused and left from there. Then he showed his identity card and introduced himself with the accused. When he examined the accused, the accused gave his name and address. He informed to the accused that under the NDPS Act, the accused had a right to demand search in the presence of Judicial Magistrate or Gazetted Officer, for which, the accused told that not necessary, the Sub Inspector himself can carry out the search. The same was reduced into writing and signature of the accused and witnesses were obtained, then called two independent witnesses, one Kumar, S/o. Radha Krishnan, a car driver and another Shunmugam, S/o.Velusamy, a fruit seller, in push cart to stand as witnesses, but they refused to stand as witnesses. Hence, nominated Head Constable Arulkumar and Gr.I Constable Murugan as witnesses. The Head Constable Arulkumar knows Telugu. Therefore, with his help, the accused was examined and the statement of the accused was recorded. Then, five rexine bags possessed by the accused, one after another were opened and examined. Ganja was found in all the four bags. A black colour rexine bag was opened and inside the bag, 10 kilo grams of ganja was found. A Black and red colour rexine bag, contained 10 kilograms of ganja. A red colour rexine bag contained 11 kilo grams of ganja, another black colour rexine bag was opened, 8 kilo ganja was found inside the bag. Then, one more black colour rexine bag was found in the possession of the accused, in which 11 kilograms of ganja was found. Two samples, each weighing 50 grams were collected from all the 5 rexine bags. The samples were packed separately, sealed and serialized as S1 to S10. The bulk ganja after taking samples were similarly packed and sealed and they are serialized as P1 to P5. He seized the samples and bulk quantity under Mahazar in the presence of witnesses. In the seizure Mahazar, signature of the accused was obtained. The accused was examined, and gave confession statement, which was recorded by him. After informing the reason for arrest of the accused that accused was arrested for the possession of 50 kilo grams of Ganja without valid permit or licence. The accused, the contraband along with the documents were taken to the police station and filed a report, where PW4 registered a case against the accused U/s.8(c ) r/w.20(b)(II) (C) of the NDPS Act.
11. PW3, worked as Head Constable in NIB, CID, Chennai, has deposed that on 08.02.2002, he had accompanied with PW2 to the place of occurrence, i.e., car parking, available at Moore Market at Chennai Central Railway Station. He has stated that the accused was examined by PW2, wherein he replied in Telugu. He stood as a translator between accused and PW2 and he also witnessed the seizure of ganja from the accused and the preparations of documents in this regard. He acted as a translator, with the help of him PW2 has intercepted and interacted with the accused. Further, he has stated that through him PW2 recorded the statement of the accused and explained the rights available under the Act and the reasons for the arrest of the accused.
12. PW4 is the Investigating Officer, has deposed that on 08.02.2008 at about 10.15 a.m. perused the information recorded by PW2 and permitted him to proceed further and on the same day by 2.00 p.m., he received the accused, a contraband and document along with report under Section 57 of the NDPS Act from PW2. He had prepared remand report and sent the accused along with remand report, seized ganja samples and documents to the Special Court for remanding the accused to judicial custody. He duly informed to the relative of the accused about the arrest of the accused. Thereafter, completed the investigation and filed a final report U/s. 8(c) r/w. 20(b)(ii)(C) of the NDPS Act against the accused before the Special Court.
13. On perusal of the available records, evidence of the prosecution and submission made by both the counsel, the entire case of the prosecution is based upon the deposition of PW2. According to him on 08.02.2008, when he was on duty in the office at about 10.00 a.m., he received information from his informant and recorded the information and forwarded the same to PW4. After getting permission from PW4, he proceeded to the place of occurrence. Where doubtful person was found with 5 rexine bags. The informant identified the said person and left from there. When the accused was examined, he gave his name and address and the accused was informed through PW3 in Telugu that under the NDPS Act, the accused had right to demand search in the presence of either Judicial Magistrate or Gazetted Officer. For which, he replied that he need not be brought before the Judicial Magistrate or Gazetted Officer for search and the accused told through PW3 in Telugu that the Sub Inspector himself to carry out the search. The same was reduced into writing and obtained signature from the accused and witnesses (Ex.P4). Then he called two independent witnesses, one Kumar, S/o. Radha Krishnan, a car driver and another Shunmugam, S/o.Velusamy, a fruit seller, in push cart to stand as witnesses. But they refused to stand as witnesses. Further, he has stated about the seizure and arrest of the accused and the report submitted before PW4. From the evidence of PW1 and PW2, it is proved that the ganja was recovered from the accused. Once the prosecution has proved that the ganja recovered from the rexine bags which were found in his possession at the time of his apprehension, in terms of Section 35 of NDPS Act. The burden of proof was upon him to prove that he had no knowledge that the bags contained such a substance or he has valid licence or permit.
14. The learned counsel for the appellant has relied upon the decision of this Court in a case of Karnam Thakka Babu vs. State reported in 2013 (2) MWN (Cr.) for the purpose of manner in which the seizure effected does not inspire the confidence of the Court. As per the facts of the said case, PW2 had not given the details as to whom she called to stand as witness, but refused. She had not taken any effective steps to procure independent witnesses. Therefore, the Judge stated that part of the evidence of prosecution was not acceptable.
15. But in the present case PW2 has clearly stated that after recorded the notice EX.P4 given to the accused, he called two independent witnesses, one Kumar, S/o. Radha Krishnan, a car driver and another Shunmugam, S/o.Velusamy, a fruit seller, in push cart. The evidence of PW3 also corroborated the same. The same is proved through Ex.P7, the report u/s. 57 of NDPS Act by PW2 before PW4. There is no valid reason to discard the evidence of PW2 and PW3. Therefore, the case cited by the learned counsel for the appellant is not applicable to the present case on hand. It is well settled that the conviction can be based solely on the testimony of official witness. A condition precedent is that the evidence of such official witness must inspire confidence.
16. In the present case, PW2 has clearly stated that the names of the two witnesses and their fathers name. Therefore, from the available materials on records, this Court has not found any valid reason to reject the evidence of the PW2 and PW3.
17. On perusal of the Exhibit P3, the information received by PW2 from his informant, the learned Trial Judge has come to the conclusion that mandatory provisions of Section 42 of the NDPS Act has been complied with. On perusal of the Exhibit P4, the intimation to the accused in Telugu through PW3 by PW2, the trial judge has come to the conclusion that mandatory provisions of Section 50 of the Act has been complied with. On perusal of the Exhibit P7, after completing all formalities PW2 went to the Police Station along with the materials and submitted a report to PW4 the Inspector of Police, the Trial Court has come to the conclusion that the mandatory provisions of Section 57 of the NDPS Act has been complied with. From the evidence of PW1, the Scientific Assistant, who was working in the Forensic Science Department, at Chennai and on the perusal of the Exhibit P1, the letters sent by Special Judge to the Director of Forensic Department and Exhibit P2, the analysis report sent from Forensic Science Department to the Special Court regarding the contraband seized from the accused. It is proved that materials seized in this case are ganja. Further, it is proved from the prosecution evidence, the prosecution has recovered 50 kgms of ganja from the accused, concealed in 5 rexin bags, which is a commercial quantity. The trial court has correctly come to the conclusion that the prosecution has proved the case and has convicted the accused for the offence under Section 8(c) r/w 20(b)(ii)(C) of the NDPS Act.
18. On considering the entire materials on records and on perusal of the Judgment of the trial court, there is no reason to interfere with the Judgment of the trial court and I am of the view that the appellant has not made out any grounds for setting aside the judgment and order passed on 12.12.2012 by the Principal Special Judge, Special Court under E.C. and NDPS Act, Chennai, in C.C.No.103 of 2008 under Section 8 (c) r/w. 20(b) (ii) (C) of NDPS Act, 1985. Accordingly, the appeal is dismissed.