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NALLUSAMY versus THE STATE REPRESENTED

High Court of Madras

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Nallusamy v. The State represented - C.A.No.594 of 1999 [2003] RD-TN 509 (7 July 2003)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 07/07/2003

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

C.A.No.594 of 1999

Nallusamy .. Appellant -Vs-

The State represented

by the Inspector,

N.D.P.C.I.D., Trichy

Police Station

Cr. No.4/98 .. Respondent This criminal appeal is preferred under S.374(2) of The Code of Criminal Procedure against the judgment of the Special Judge (Essential Commodities) (District Judge), Pudukottai in C.C.No.94 of 1998 dated 1 8.1.1999.

For Appellant : Mr.K.Venkatasubramaniam

For Respondent : Mr.V.Jaya Prakash Narayanan

Government Advocate (Crl. Side) :JUDGMENT



The sole accused, who stood charged, tried and found guilty under S.20(b)(1) of the N.D.P.S. Act and sentenced to undergo R.I. for 4 years and to pay a fine of Rs.15,000/- in default of which to undergo 9 months R.I., has preferred this appeal.

2. The fact necessary for the disposal of this appeal can be stated as follows:

On 17.1.1998 at about 8.30 A.M., P.W.3 N.Muthusamy, a Head Constable attached to N.I.B. C.I.D., Trichy received an information from his informant relating to the possession of ganja by the accused at Trichy Bus Stand. After reducing the same into writing marked as Ex.P4, the same was sent to P.W.4 R.Rajagopal, Inspector of Police, attached to N.I.B. C.I.D. Accompanied by P.W.1 Bakthavatchalam, P.W.3 proceeded to the Central Bus Stand, Trichy and found the accused along with a plastic bag. P.W.3 informed the accused as to his right to be searched as contemplated under S.50 of the N.D.P.S. Act. But, the accused replied that it was not necessary, and in the presence of independent witnesses one of whom was examined as P.W.2, L.Mohan, the accused was searched and found in possession of 3 kgs. of ganja. Two samples out of the same 50 grams each were taken in front of P.W.2. The entire contraband was seized under Ex.P2 mahazar. The accused was arrested at about 12.30 A.M. and brought to N.I.B. C.I.D. Office at Trichy. A case was registered in Crime No.4/98 under S.8(c) r/w 20(b)(1) of N.D.P.S. Act. Ex.P6 printed F.I.R. was prepared and sent to the concerned Magistrate's Court. A detailed report as contemplated under S.57 of the NDPS Act was prepared under Ex.P7 and sent to P.W.4. A copy of the report was also sent to the Judicial Magistrate's Court concerned under Ex.P8. The form 95 was prepared, and the accused was remanded to judicial custody along with the documents and properties. On 19.1.1998, P.W.4 proceeded to the site of occurrence, inspected the same, made an investigation, recorded the statement of P.Ws.1 to 3 and one Bakthavatchalam. The sample that was taken out of the contraband was sent for chemical analysis on the request made by P.W.4. The Chemical Analysis report under Ex.P9 was received, which indicated that the sample contained ganja, a narcotic substance. On completion of the investigation, a charge sheet was laid on 16.2.1998 by P.W.4.

3. In order to prove the charges against the appellant/accused, 5 witnesses were examined and 10 exhibits and 3 material objects were marked on the side of the prosecution. When the appellant was questioned under S.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, he flatly denied the same. No defence witness was examined. After consideration of the rival submissions and scrutiny of the materials available, the trial Court has found him guilty under S.20(b)(1) of the NDPS Act and convicted and sentenced him to undergo imprisonment, as referred to above.

4. Advancing his arguments for the appellant, the learned Counsel raised the following two points:

(i) According to the prosecution case, the appellant/accused was found in possession of the contraband namely 3 kgs. of ganja on 17.1.199 8 at about 8.30 A.M. at the Central Bus Stand, Trichy, which is ordinarily a busy place. But, the prosecution has chosen to examine only P.W.2 as an eyewitness. His evidence was not corroborated by any other evidence, and hence, it is a strong flaw on the prosecution case.

(ii) Before the search was made what was expected to be procedurally done under S.50 of the NDPS Act has not been strictly complied with. The learned Counsel would submit that on the above two grounds, the appeal has got to be allowed, and the judgment of the lower Court has to be set aside, and the appellant be set at liberty.

5. Countering to the above contentions, the learned Government Advocate (Criminal Side) in his reply would submit that a perusal and scrutiny of the entire materials and the available evidence would clearly show that the accused was clearly informed about his right available under S.50 of the N.D.P.S. Act; that the accused was arrested and searched in the presence of two witnesses, of whom P.W.2 was one, and his evidence would clearly reveal the truth of the arrest and search made, and under such circumstances, the appeal carries no merit, and the same has got to be dismissed.

6. After careful consideration of the rival submissions and the close scrutiny of the available materials, the Court is unable to see any merit in this appeal.

7. As narrated above, P.W.3, on an information proceeded to the Central Bus Stand, Trichy on 17.1.1998 noon hours along with P.W.1. The appellant/accused was informed about his right to be searched in the presence of a Judicial Magistrate or before a gazetted officer, which was answered that the same was not necessary and the search could be made. A search has been procedurally conducted by P.W.3 in the presence of two witnesses, of whom P.W.2 was an independent witness examined before the trial Court. The evidence of P.W.2, an independent witness, when scrutinised, has inspired the confidence of the Court. No circumstance or reason has been brought forth to suspect his testimony. Hence, the lower Court was perfectly right in placing reliance on the evidence of P.W.2.

8. The other procedural formalities namely sending the detailed report to P.W.4 Inspector immediately as contemplated under S.57 of the N.D.P.S. Act have also been complied with. The printed F.I.R. was immediately sent to the concerned Magistrate's Court. The arrested accused was also sent to the concerned Magistrate's Court for remand along with the contraband. The sample taken at the place of occurrence has also been despatched to the Analyst through the concerned Magistrate's Court. The Analyst's report is also filed as Ex.P9, which would clearly speak about that the sample contained ganja, a narcotic substance, and thus, the prosecution has clearly proved that the appellant/accused at the time of arrest and seizure was in illegal possession of 3 kgs. of ganja. Under such circumstances, the law would expect the rebuttal of the presumption under S.35 of the N.D.P.S. Act, but the accused has miserably failed to do so, and hence, there is no hesitation for the Court to hold that he was in illegal possession of 3 kgs. of ganja at the time of occurrence, and the prosecution has proved its case beyond reasonable doubt. The Court is of the view that there is nothing to interfere either in the conviction or in the sentence awarded by the Court below.

9. In the result, this criminal appeal would fail, and the same is dismissed, confirming the judgment of the lower Court. Index: Yes

Internet: Yes

nsv/

To:

1) The Special District Judge for Essential Commodities Act cases, Pudukkottai.

2) The Superintendent, Central Prison, Trichy.

3) The Public Prosecutor, High Court, Madras.

4) The D.I.G. of Police, Chennai 4.

5) Mr.V.Jaya Prakash Narayanan, Government Advocate (Crl. Side), High Court, Madras.

6) The Inspector, NDPCID, Trichy.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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