Madras High Court
Meenakshi Sundharam @ Sundhar vs State Represented By
CRL.A(MD).Nos.614, 616 and 629 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 20.12.2023
Delivered on : 14.03.2024
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
CRL.A(MD).Nos.614, 616 and 629 of 2022
Meenakshi Sundharam @ Sundhar ... Appellant/Accused No.2
in Crl.A.(MD).No.614 of 2022
Subhash Chandra Bose @ Bose ... Appellant/Accused No.1
in Crl.A.(MD).No.616 of 2022
Sakthivel ... Appellant/Accused No.3
in Crl.A.(MD).No.629 of 2022
Vs.
State represented by
The Inspector of Police,
Keeraithurai Police Station,
Madurai City.
Cr.No.1174 of 2020 ... Respondent/Complainant
(In all appeals)
COMMON PRAYER: These Criminal Appeals are filed under Section
374(2) of Cr.P.C. to call for the records and set aside the conviction and
sentence passed by judgment dated 18.08.2022 in C.C.No.279 of 2021, on
the learned Principal Special Court for NDPS Act cases, at Madurai and
acquit the appellants herein.
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For Appellant : Mr.G.Karuppasamy Pandian
(in all cases)
For Respondent : Mr.T.Senthil Kumar,
Additional Public Prosecutor
(in all cases)
COMMON JUDGMENT
These appeals have been filed to set aside the conviction and
sentence passed by the learned Principal Special Court for NDPS Act
cases, at Madurai, in C.C.No.279 of 2020 dated 18.08.2022.
2.Since the appellants in all the appeals are arrayed as accused No.1
to 3 in the same crime number, these appeals are taken up together for
hearing and disposed of by way of this common judgment.
3.According to the prosecution, the appellants and other five
accused are said to have committed offence under Sections 8(C) r/w 20(b)
(ii)(c), and 29(1) of Narcotic Drug Psychotropic Substances Act, 1985,
(hereinafter, for the sake of brevity, referred to as “NDPS Act”). The
respondent Police received the information on 21.11.2020 at 07.00 a.m
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relating to the illegal transportation of 30 Kgs of Ganja near Sinthamani
Road, Vaalaithoppu, Muniyasamy tea shop, situated behind the railway
gate, Madurai. Hence, P.Ws.1 to 3 reached the occurrence place and the
informer identified A1, A2 and A3. A1 to A3 were caught by P.Ws.1 to 3
and P.W.2 informed about the right to be searched before the Gazetted
Officer in compliance with the section 50 of NDPS Act. Thereafter, P.Ws.1
and 2 made search and found that they were in illegal possession of 30 Kgs
of Ganja in two bags. Hence, they recovered the said contraband after
arresting the accused. From the recovered contraband, they took the
sample in S1 to S4 and packed the remaining contraband in P.1 and P.2.
After that, P.W.2 produced the arrested accused before the police station
and registered the FIR and submitted the report under Section 57 of the
NDPS Act to P.W.4. P.W.4, after receipt of the report, produced the
accused and also the contraband and other material documents before the
learned Judicial Magistrate on the same day itself. Thereafter, he
conducted the investigation and he entrusted the investigation to the P.W.5
on account of his transfer. P.W.5 continued the investigation and arrested
the remaining accused namely A4 to A8. Thereafter, he filed the final
report after obtaining the chemical analysis report and produced the same
before the Principal Special Court, For EC and NDPS Act Cases, Madurai.
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The same was taken on file in C.C.No.279 of 2020.
4.The learned trial Judge after appearance of the accused served the
copies under Section 207 Cr.P.C. Then, he framed necessary charges and
questioned the accused. The accused denied the charges and pleaded not
guilty and stood for trial.
5.To prove the case, the prosecution examined P.W.1 to P.W.5 and
exhibited 20 documents as Ex.P.1 to Ex.P.20 and produced 6 material
objects as M.O.1 to M.O.6. Thereafter, all the accused were questioned
under Section 313 Cr.P.C proceedings by putting the incriminating
evidence against them. The accused denied the same as false and
thereafter, the case was posted for defence evidence. On the side of the
accused, no one was examined but they exhibited three documents as
Ex.D1 to Ex.D3. The Exs.D1 to D3 are the arrest intimation of A1 to A3.
6.After considering the material adduced by the prosecution, Ex.D1
to Ex.D3 and also hearing the argument of the appellants and other
accused, the trial Court convicted the appellants for the offence under
Sections 8(C) r/w 20(b)(ii)(c) of NDPS Act and sentenced them to undergo
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10 years Rigorous Imprisonment each and to pay a fine of Rs.1,00,000/-
each, in default to undergo six months Simple Imprisonment each and
sentenced them to undergo 10 years Rigorous Imprisonment each and to
pay a fine of Rs.1,00,000/- each, in default undergo six months Simple
Imprisonment each for the offence under Sections 29(1) of NDPS Act.
Aggrieved by the same, the present appeals have been filed.
7.The learned counsel appearing for the appellants submitted that in
Ex.D1 to Ex.D3 arrest memo, the crime Number was found and hence,
there is a doubt over the recovery. Before the recovery, the arrest was
made in the occurrence place. In the arrest memo, it shows that P.Ws.1 to
3 have not recovered the contraband in the occurrence place and they
prepared all the materials in the respondent Police Station. Hence, there is
a serious doubt over the prosecution witnesses. Hence, he seeks acquittal.
7.1.The learned counsel further submitted that A4 to A8 were
acquitted under Section 29 of the NDPS Act. In the charge, no date and
time were mentioned. In view of the above circumstances, there is no
evidence to prove the conspiracy between them.
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7.2.The learned counsel further submitted that there was no recovery
from A3 and recovery was made only from A1 and A2. In the said
circumstances, conviction against A3 for the offence under Sections 8(C)
r/w 20(b)(ii)(c), and 29(1) is not sustainable.
7.3.The learned counsel for the appellants submitted that the
mandatory provisions of Section 52A of NDPS Act, was not been complied
with. To substantiate the contention, he relied on the judgment of the
Honourable Supreme Court in MANGILAL versus THE STATE OF
MADHYA PRADESH reported in 2023 Live Law SC 549 and
SIMARNJIT SINGH versus STATE OF PUNJAB reported in 2023 Live
Law SC 570. On the basis of the said judgments, they stated that without
compliance of Section 52(A) of NDPS Act, the conviction and sentence
passed against the appellants is liable to be set aside. As per the judgment
of the above Supreme Court Judgment, Section 52(a)(iii) of NDPS Act, is
mandatory. The witnesses admitted that there was no compliance of 52(a)
(iii) of NDPS Act. On the basis of the above judgment,because of the non
compliance of 52(a)(iii) of NDPS Act, the accused are entitled for
acquittal. The learned counsel appearing for the appellant submitted that
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no independent witnesses have been examined. Even though the said place
of the occurrence is near the railway track and in the FIR it is stated that
two independent witnesses were asked but they refused to act as
independent witnesses, in the said circumstances, there was no action
against the said persons. The learned trial Judge failed to consider the
above non examination of the independent witnesses.
7.4.The learned counsel further submitted that the learned trial Judge
made the contra findings in Paragraph No.11(8)(d),(e),(f) and (g) and
erroneously convicted the appellants. Therefore, he seeks for acquittal.
8.The learned Additional Public Prosecutor made the following
submissions:
8.1.The learned Additional Public Prosecutor submitted that in this
case contraband was recovered on 21.11.2020 at 08.30 a.m and produced
before the learned Judicial Magistrate on 09.15 p.m on the same day. The
sample also produced on the same day. Hence, the Form 91 with the
particulars of the recovered contraband and samples were produced before
the Court. The Remaining contraband was also produced before the Court
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CRL.A(MD).Nos.614, 616 and 629 of 2022and the same was marked as M.O.5 and M.O.6. The Section 52 A of
NDPS Act, is applicable only in the case of the disposal of the contraband.
In this case, the entire contraband was produced before the learned trial
Judge and was also marked. Hence, the submission of the appellant is not
legally valid.
8.2.He further submitted that 52A of NDPS Act, is complied with
and corresponding report is also marked and P.W.4 also has spoken about
the receipt of the report as per section 57 of the NDPS Act. He further
submitted that there was ground to convict the appellants under Section 29
of NDPS Act. In order prove the conspiracy, there is material produced by
the prosecution. The illegal company with the contraband itself is a
material circumstance to presume conspiracy. He further submitted that the
seized contraband was produced before the Court below along with the
accused on the day itself and the sealed samples were sent to chemical
analysis and the same was found with the seal intact. In the said
circumstances, the prosecution clearly proved the case beyond reasonable
doubt.
8.3.He further submitted that Ex.D1 to Ex.D3 is not arrest memo and
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it is only arrest intimation of the appellants A1 to A3. The arrest memos are
marked as Ex.P7 to P9. In the arrest memo, there is no mentioning of the
crime number. The Arrest intimation is prepared at the station, after the
registration of the case and intimidated the same to the accused regarding
to the arrest. In the said circumstances, the argument of the appellants is
not correct. The Ex.D1 to Ex.D3 are arrest intimation. So, it contains
crime Number. In the said circumstances, in all aspects, the learned trial
Judge considered the evidence available against the appellants and
convicted them and minimum sentence was imposed under the said Act.
9.This Court perused the records and the documents adduced by the
prosecution and the grounds raised by the appellants and reply made by the
learned Additional Public Prosecutor and also considered the precedents
relied upon by them.
10.Whether the conviction and sentence passed by the learned trial
Judge passed by the appellant is required to be interfered with?
11.The submission of the learned counsel for the appellant is that the
alleged place of occurrence is near the railway track. It is the prosecution
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case that the respondent police asked two independent witnesses to witness
the seizure but they refused to witness the same. But, the respondent police
has not taken any action against the said independent witnesses as per law.
Therefore, the non-examination of the independent witnesses creates a
doubt over the presence of the appellant in the scene of occurrence and the
recovery of the contraband from the appellants. The said submission has
no legs to stand. The Hon’ble Supreme Court repeatedly held that non-
examination of the independent witness is not a ground to disbelieve the
testimony of the police officers. Further, Hon’ble Supreme Court in 2011 3
SCC 521, 2020 2 SCC 563, 2020 10 SCC 740, laid down the dictum that
merely because the prosecution did not examine any independent witness
that would not necessarily lead to a conclusion that the accused was falsely
implicated and also the evidence of the official witness cannot be
distrusted and disbelieved, merely on account of their official status. When
the testimony of the police witness is trustworthy and cogent, the same can
be relied to convict the accused.
12.Plea of the non-compliance of Section 52A of the NDPS Act
caused failure of justice.
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12.1.The primordial submission of the appellant that due to the non-
compliance of Section 52A of the NDPS Act, the appellant ought to have
been acquitted. The conjoined reading of Sections 41 to 44, 55 and 57 of
the NDPS Act, shows that every authorised officer from the jurisdictional
Police Station, the department of Central Excise, Narcotic Customs,
Revenue Intelligence or any other department of Central Government etc.,
has reason to believe from personal knowledge or information given by
any person and the same was reduced in writing that any Narcotic drug or
Psychotropic substances or controlled substance in respect of which,
offence punishable under this Act has been committed, they are entitled to
search and seize the contraband. They are called “seizure officer”. They
shall arrest the accused and produce the accused along with seized
contraband to his immediate Superior of nearest police station or officer
empowered under Section 53 of the Act. The said officers shall take
necessary measure as may be necessary for the disposal, as per Section 52
of the Act. The said report shall be made within 48 hours from the time of
either arrest or seizure. Under Section 55, the officer in charge of police
station shall take charge of the contraband and keep in safe custody
pending orders of the Magistrate. He also shall allow the said seizure
officer to take sample of such contraband and seal the said sample with
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seal of officer in charge of Police Station. The Central Government issued
a notification with guidelines to follow the procedure to take the sample
from the recovered contraband and to keep the remaining contraband.
12.1.1.That being the arrangement of the Section and the scheme of
the Act, the Government have brought amendment in the year 1989 vide
Act 2 of 1989 with the following statement of objects and reasons:
Amendment Act 2 of 1989-Statement of
Objects and Reasons- In recent years, India has
been facing a problem of transit traffic in illicit
drugs. The spill-over from such traffic has
caused problems of abuse and addiction. The
Narcotic Drugs and Psychotropic Substances
Act, 1985 provides deterrent punishments for
drug trafficking offences. Even though the major
offences are non-bailable by virtue of the level of
punishments, on technical grounds, drugs
offenders were being released on bail. In the
light of certain difficulties faced in the
enforcement of the Narcotic Drugs and
Psychotropic Substances Act, 1985, the need to
amend the law to further strengthen it, has been
felt.
2.A Cabinet Sub-Committee which was
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CRL.A(MD).Nos.614, 616 and 629 of 2022constituted for combating drug traffic and
preventing drug abuse, also made a number of
recommendations for strengthening the existing
law. In the light of the recommendations of the
Cabinet Sub-Committee and the working of the
Narcotic Drugs and Psychotropic Substances Act,
in the last three years, it is proposed to amend the
said Act. These amendments, inter alia, provide
for the following:-
(i)to constitute a National Fund for Control
of Drugs Abuse to meet the expenditure incurred
in connection with the measures for combating
illicit traffic and preventing drug abuse;
(ii)to bring certain controlled substances
which are used for manufacture of Narcotic Drugs
and Psychotropic Substances under the ambit of
Narcotic Drugs and Psychotropic Substances Act
and to provide deterrent punishment for violation
thereof;
(iii)to provide that no sentence awarded
under the Act shall be suspended, remitted or
commuted;
(iv)to provide for pre-trial disposal of
seized drugs;
(v)to provide death penalty on second
conviction in respect of specified offences13/49
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CRL.A(MD).Nos.614, 616 and 629 of 2022involving specified quantities of certain drugs;
(vi)to provide for forfeiture of property and
a detailed procedure relating to the same ; and
(vii)to provide that the offences shall be
cognizable and non-bailable.
12.1.2.Therefore, “to provide for pre-trial disposal of the seized
contraband”, the 52 A was inserted on 29.05.1989, which reads as follows:
52A. Disposal of seized narcotic drugs and
psychotropic substances.—
(1) The Central Government may, having regard
to the hazardous nature, vulnerability to theft,
substitution, constraint of proper storage space or
any other relevant consideration, in respect of any
narcotic drugs, psychotropic substances,
controlled substances or conveyances, by
notification in the Official Gazette, specify such
narcotic drugs, psychotropic substances,
controlled substances or conveyance or class of
narcotic drugs, class of psychotropic substances,
class of controlled substances or conveyances,
which shall, as soon as may be after their seizure,
be disposed of by such officer and in such manner
as that Government may, from time to time,
determine after following the procedure14/49
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CRL.A(MD).Nos.614, 616 and 629 of 2022hereinafter specified.]
(2) Where any 4 [narcotic drugs, psychotropic
substances, controlled substances or
conveyances] has been seized and forwarded to
the officer-in-charge of the nearest police station
or to the officer empowered under section 53, the
officer referred to in sub-section (1) shall prepare
an inventory of such 4 [narcotic drugs,
psychotropic substances, controlled substances or
conveyances] containing such details relating to
their description, quality, quantity, mode of
packing, marks, numbers or such other identifying
particulars of the 4 [narcotic drugs, psychotropic
substances, controlled substances or
conveyances] or the packing in which they are
packed, country of origin and other particulars as
the officer referred to in sub-section (1) may
consider relevant to the identity of the 4[narcotic
drugs, psychotropic substances, controlled
substances or conveyances] in any proceedings
under this Act and make an application, to any
Magistrate for the purpose of —
(a) certifying the correctness of the inventory so
prepared; or
(b) taking, in the presence of such magistrate,
photographs of 5 [such drugs, substances or15/49
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CRL.A(MD).Nos.614, 616 and 629 of 2022conveyances] and certifying such photographs as
true; or
(c) allowing to draw representative samples of
such drugs or substances, in the presence of such
magistrate and certifying the correctness of any
list of samples so drawn.
(3) Where an application is made under sub-
section (2), the Magistrate shall, as soon as may
be, allow the application.
(4) Notwithstanding anything contained in the
Indian Evidence Act, 1872 (1 of 1972) or the Code
of Criminal Procedure, 1973 (2 of 1974), every
court trying an offence under this Act, shall treat
the innventory, the photographs of 1 [narcotic
drugs, psychotropic substances, controlled
substances or conveyances] and any list of
samples drawn under sub-section (2) and certified
by the Magistrate, as primary evidence in respect
of such offence.]
12.1.3.Section 52 A aims at “pre trial disposal of seized
contraband” with the sole object of avoiding pilferage of contraband and
retruning to the marketplace for recirculation as it is vulnerable to theft and
substitution, against the normal rule of destruction of the material after
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conclusion of the trial under Section 452 Cr.P.C., The said provision
intends to authorise the post recovery procedure to dispose the seized
contraband by the officer mentioned Section 52 to prove the case of the
possession of the contraband by taking sample, by preparing inventory in
the presence of the judicial Magistrate. Therefore, the prosecution is not
prevented to prove the case of the possession of the contraband through
legal evidence of the recovery witnesses. Once the possession of the
contraband is proved, the legal presumption under Section 54 comes into
play. Then, the culpable mental state on the part of the accused can be
pressed into service under Section 35 of the Act. Therefore, in a similar
contention raised before the Hon’ble Supreme Court in the case of State of
Punjab v. Makhan Chand, reported in (2004) 3 SCC 453, the Hon’ble
Supreme Court has rejected the same with the following findings:
“9. Learned counsel for the respondent-
accused relied on certain standing orders and
standing instructions issued by the Central
Government under Section 52-A(1) which require a
particular procedure to be followed for drawing of
samples and contended that since this procedure
had not been followed, the entire trial was vitiated.
10. This contention too has no substance for
two reasons. Firstly, Section 52-A, as the marginal17/49
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CRL.A(MD).Nos.614, 616 and 629 of 2022note indicates, deals with “disposal of seized
narcotic drugs and psychotropic substances”.
Under sub-section (1), the Central Government, by
a notification in the Official Gazette, is empowered
to specify certain narcotic drugs or psychotropic
substances, having regard to the hazardous nature,
vulnerability to theft, substitution, constraints of
proper storage space and such other relevant
considerations, so that even if they are material
objects seized in a criminal case, they could be
disposed of after following the procedure
prescribed in sub-sections (2) and (3). If the
procedure prescribed in sub-sections (2) and (3) of
Section 52-A is complied with and upon an
application, the Magistrate issues the certificate
contemplated by sub-section (2), then sub-section
(4) provides that, notwithstanding anything to the
contrary contained in the Indian Evidence Act,
1872 or the Code of Criminal Procedure, 1973,
such inventory, photographs of narcotic drugs or
substances and any list of samples drawn under
sub-section (2) of Section 52-A as certified by the
Magistrate, would be treated as primary evidence
in respect of the offence. Therefore, Section 52-A(1)
does not empower the Central Government to lay
down the procedure for search of an accused, but
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only deals with the disposal of seized narcotic
drugs and psychotropic substances.”
12.1.4.In the case of Kallu Khan v. State of Rajasthan, reported in
2021 SCC OnLine SC 1223 it has been held as follows:
“13. At this state, the argument advanced by the
appellant regarding non-production of contraband
in the court due to which benefit of doubt ought to
be given to accused, is required to be adverted to.
In the case of State of Rajasthan v. Sahi
Ram, (2019) 10 SCC 649, this Court held that
when the seizure of material is proved on record
and is not even disputed, the entire contraband
material need not be placed on record. It is not a
case in which the appellant has proved beyond
reasonable doubt that while sending the samples
for forensic tests, seals were not intact or the
procedure has been materially not followed by
protecting the seized substance or was not stored
properly, as specified in the case of Mohan
Lal (supra) in which case the directions were
given to be followed on administrative side.
However, in the facts of the case, the said
judgment is not of any help to appellant.
9.10. The Hon’ble Supreme Court held that even
non-production of the entire contraband before
the Court is not fatal when the seizure was proved19/49
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contraband is proved. In this aspect, it is relevant
to the judgment of the Hon’ble Supreme Court in
Than Kunwar v. State of Haryana, (2020) 5 SCC
260: (30. The Court also went to hold in Sahi
Ram [State of Rajasthan v. Sahi Ram, (2019) 10
SCC 649 : (2020) 1 SCC (Cri) 85] that if seizure is
otherwise proved on record and it is not even
doubted or disputed, it need not be placed before
the Court. The Court further held that if the seizure
is otherwise proved what is required to be proved
is the fact that samples taken out of a contraband
are kept intact. This Court held as follows : (SCC
pp. 657-58, paras 15-16 & 18)
“15. It is true that in all the aforesaid cases
submission was advanced on behalf of the accused
that failure to produce contraband material before
the court ought to result in acquittal of the
accused. However, in none of the aforesaid cases
the said submission singularly weighed with this
Court to extend benefit of acquittal only on that
ground. As is clear from the decision of this Court
in Jitendra [Jitendra v. State of M.P., (2004) 10
SCC 562 : 2004 SCC (Cri) 2028] , apart from the
aforesaid submission other facets of the matter
also weighed with the court which is evident from20/49
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CRL.A(MD).Nos.614, 616 and 629 of 2022paras 7 to 9 of the decision. Similarly
in Ashok [Ashok v. State of M.P., (2011) 5 SCC 123
: (2011) 2 SCC (Cri) 547] , the fact that there was
no explanation where the seized substance was
kept (para 11) and the further fact that there was
no evidence to connect the forensic report with the
substance that was seized (para 12) were also
relied upon while extending benefit of doubt in
favour of the accused. Similarly, in Vijay
Jain [Vijay Jain v. State of M.P., (2013) 14 SCC
527 : (2014) 4 SCC (Cri) 276] , the fact that the
evidence on record did not establish that the
material was seized from the appellants, was one
of the relevant circumstances. In the latest decision
of this Court in Vijay Pandey [Vijay
Pandey v. State of U.P., (2019) 18 SCC 215] ,
again the fact that there was no evidence to
connect the forensic report with the substance that
was seized was also relied upon to extend the
benefit of acquittal.
16. It is thus clear that in none of the decisions of
this Court, non-production of the contraband
material before the court has singularly been
found to be sufficient to grant the benefit of
acquittal.
***
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18. If the seizure of the material is otherwise
proved on record and is not even doubted or
disputed, the entire contraband material need not
be placed before the court. If the seizure is
otherwise not in doubt, there is no requirement that
the entire material ought to be produced before the
court. At times the material could be so bulky, for
instance as in the present material when those 7
bags weighed 223 kg that it may not be possible
and feasible to produce the entire bulk before the
court. If the seizure is otherwise proved, what is
required to be proved is the fact that the samples
taken from and out of the contraband material
were kept intact, that when the samples were
submitted for forensic examination the seals were
intact, that the report of the forensic experts shows
the potency, nature and quality of the contraband
material and that based on such material, the
essential ingredients constituting an offence are
made out.”
31. In the facts of this case, no doubt the
contraband article weighed 6 kg 300 gm. A perusal
of the judgment of the trial court does not appear
to suggest that the appellant had taken the
contention regarding non-production of the
contraband before the trial court.
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12.2. From the above discussion, it is clear that Section 52 A of the
NDPS Act deals with disposal of the seized contraband and it is not related
to the seizure from the scene of the occurrence. Therefore, this Court is
unable to accept the submission of the learned counsel for the appellant
that the failure on the part of the investigating agency to destruct the
contraband as per the procedure contemplated under Section 52A of the
NDPS Act is a ground to acquittal without going into the legal evidence
available to prove the possession of the contraband, seizure of the
contraband, the arrest of the accused, taking of the samples,forwarding of
the samples and the remaining contraband along with accused immediately
after the arrest to the Court and the production of the remaining samples,
chemical analysis report and the remaining contraband physically as a
material object. Once the above facts are proved through the evidence, the
presumption under the Act will come. Therefore, the interpretation to
Section 52 A of the NDPS Act, is made to achieve the object of NDPS Act.
12.3..The drugs are made to cure the illness and the diseases and to
alleviate the pain during ailment. But, the People misused the same for
illegitimate purpose and therefore, drug abuse has become a social
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problem. The NDPS Act was originally brought in the year 1985.
Subsequently, to make it stringent, an amendment was brought in the year
1989 with the object stated supra.
12.4.According to the data, 1.58 Crores children aged between 10 to
17 years are addicted to drugs. The effect of the drug abuse includes
disease transfusion, criminal behaviour, social disorder and even death and
suicide. According to the data, the suicide as a result of a drug abuse has
increased to unimaginable and alarming percentage.
Year Number of suicide
due to drug abuse
2011 3658
2016 5199
2017 6705
2018 7193
2019 7860
2021 10560
ie., As per the data available from the NCRB, death by suicide attributed to
drug abuse and alcohol addiction continue to increase at the rate of atleast
one death in every hour. Further, as per the data, in the year 2018, due to
the drug over dose, 875 deaths has occurred and in the year 2019, 704
deaths. Therefore, there is an alarming situation, which required immediate
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action. Therefore, Government brought in Section 52A with object of
disposal of a drugs immediately after the seizure. Therefore, Section 52 A
should be so interpreted to avoid unworkable or impracticable results. The
said principle was fortified in the case of Sheffield City Council
vs. Yorkshire Water Services Ltd., reported in (1991) 1 WLR 58 : (1991) 2
All ER 280] , WLR at page No.71, and held as follows:
“Parliament is taken not to intend the carrying out
of its enactments to be unworkable or
impracticable, so the court will be slow to find in
favour of a construction that leads to these
consequences. This follows the path taken by
judges in developing the common law. ‘… the
common law of England has not always developed
on strictly logical lines, and where the logic leads
down a path that is beset with practical difficulties
the courts have not been frightened to turn aside
and seek the pragmatic solution that will best serve
the needs of society’.”12.4.1. The Hon’ble three benches of Supreme Court reiterated the
said principle by interpreting Section 50 of the Act in the case of the State
of H.P. v. Pawan Kumar, (2005) 4 SCC 350 : 2005 SCC (Cri) 943 : 2005
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18. There is another aspect of the matter, which
requires consideration. Criminal law should be
absolutely certain and clear and there should be no
ambiguity or confusion in its application. The same
principle should apply in the case of search or
seizure, which come in the domain of detection of
crime. The position of such bags or articles is not
static and the person carrying them often changes
the manner in which they are carried. People
waiting at a bus-stand or railway platform
sometimes keep their baggage on the ground and
sometimes keep in their hand, shoulder or back.
The change of position from ground to hand or
shoulder will take a fraction of a second but on the
argument advanced by learned counsel for the
accused that search of bag so carried would be
search of a person, it will make a sharp difference
in the applicability of Section 50 of the Act. After
receiving information, an officer empowered under
Section 42 of the Act, may proceed to search this
kind of baggage of a person which may have been
placed on the ground, but if at that very moment
when he may be about to open it, the person lifts
the bag or keeps it on his shoulder or some other
place on his body, Section 50 may get attracted.
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The same baggage often keeps changing hands if
more than one person are moving together in a
group. Such transfer of baggage in the nick of time
when it is about to be searched would again create
practical problem. Who in such a case would be
informed of the right that he is entitled in law to be
searched before a Magistrate or a gazetted officer?
This may lead to many practical difficulties. A
statute should be so interpreted as to avoid
unworkable or impracticable results. In Statutory
Interpretation by Francis Bennion (3rd Edn.), para
313, the principle has been stated in the following
manner:
“The court seeks to avoid a construction of
an enactment that produces an unworkable or
impracticable result, since this is unlikely to have
been intended by Parliament. Sometimes, however,
there are overriding reasons for applying such a
construction, for example where it appears that
Parliament really intended it or the literal meaning
is too strong.”
20. As pointed out in State of
Punjab v. Baldev Singh [(1999) 6 SCC 172 : 1999
SCC (Cri) 1080] drug abuse is a social malady.
While drug addiction eats into the vitals of the
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society, drug trafficking not only eats into the vitals
of the economy of a country, but illicit money
generated by drug trafficking is often used for
illicit activities including encouragement of
terrorism. It has acquired the dimensions of an
epidemic, affects the economic policies of the State,
corrupts the system and is detrimental to the future
of a country. Reference in the said decision has
also been made to some United Nations
Conventions Against Illicit Trafficking in Narcotic
Drugs, which the Government of India has ratified.
It is, therefore, absolutely imperative that those
who indulge in these kind of nefarious activities
should not go scot-free on technical pleas which
come handy to their advantage in a fraction of a
second by slight movement of the baggage, being
placed to any part of their body, which baggage
may contain the incriminating article.
12.5.Before the implementation of the Narcotic Drugs and
Psychotropic Substance (Seizure, Storage, Sampling and disposal) Rules
2022 which commenced from 23 December 2022, not even Section 52A of
the NDPS Act demanded taking of samples at the spot. The Notification
No.1/1989 prescribed procedure to take samples, seizure and the disposal.
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The authorities has strictly followed the procedure during the course of
taking samples, seizure and produced before the Court. Therefore,
considering the drug menace which has been causing pernicious effect to
large Sections of society namely, life of the youths and innocent persons,
the unworkable interpretation has to be avoided. Hence, this Court holds
that when physical production of the contraband and sealed samples are
duly made before the Court, the Court has to take into account the same
without going into the issue of the non-compliance of the post seizure
procedure, which is intended for avoidance of re-circulation, in order to
convict the accused for the possession of the contraband against the law.
12.6.From the reading of the “Mohanlal case” I II III, it is clear that
Section 52 A prescribed procedure to be followed post seizure of the
contraband to ensure prompt destruction of the contraband so that seized
materials may not be misused. The said direction has been issued only on
considering the submission of the prosecution that seized contraband were
disposed of without taking samples and preserving the remaining
contraband as per the Central Notification No.1/89 ie., on the basis of the
specific observation in Paragraph No.13 of Mohanlal case III that “except
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Directorate of Revenue Intelligence, most the States, however claim that
no samples are drawn at the time of the seizure. The DRI alone claims that
sample are drawn at the time of seizure.”
12.6.1.The Hon’ble Supreme Court in Paragraph No.12 of the
Mohanlal Case (mohanlal III- reported in 2016 (3) SCC 379) has held as
follows:
Seizure and sampling
12. Section 52-A(1) of the NDPS Act, 1985
empowers the Central Government to prescribe by
a notification the procedure to be followed for
seizure, storage and disposal of drugs and
psychotropic substances. The Central Government
has in exercise of that power issued Standing
Order No. 1 of 1989 which prescribes the
procedure to be followed while conducting seizure
of the contraband. Two subsequent standing orders
one dated 10-5-2007 and the other dated
16-1-2015 deal with disposal and destruction of
seized contraband and do not alter or add to the
earlier standing order that prescribes the
procedure for conducting seizures. Para 2.2 of
Standing Order No. 1 of 1989 states that samples30/49
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spot at the time of recovery itself. It reads:
“2.2. All the packages/containers shall be serially
numbered and kept in lots for sampling. Samples
from the narcotic drugs and psychotropic
substances seized, shall be drawn on the spot of
recovery, in duplicate, in the presence of search
witnesses (panchas) and the person from whose
possession the drug is recovered, and a mention to
this effect should invariably be made in the
panchnama drawn on the spot.”
13. Most of the States, however, claim that no
samples are drawn at the time of seizure.
Directorate of Revenue Intelligence is by far the
only agency which claims that samples are drawn
at the time of seizure, while Narcotics Control
Bureau asserts that it does not do so. There is thus
no uniform practice or procedure being followed
by the States or the Central agencies in the matter
of drawing of samples. This is, therefore, an area
that needs to be suitably addressed in the light of
the statutory provisions which ought to be strictly
observed given the seriousness of the offences
under the Act and the punishment prescribed by
law in case the same are proved. We propose to
deal with the issue no matter briefly in an attempt
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to remove the confusion that prevails regarding the
true position as regards drawing of samples.
12.6.2.The original facts of Mohanlal Case (Mohanlal Case -I
reported in 2012 (7) SCC 712), have made it clear that the Union of India
has preferred appeal against the acquittal. The High Court dismissed the
appeal on the ground that the prosecution failed to prove the seizure of the
contraband beyond reasonable doubt and hence, the prosecution case of
destruction of the contraband without taking sample as per Section 52A of
NDPS Act, cast doubt over the prosecution case. In the said appeal,
considering the re-circulation of the seized contraband, the Hon’ble
Supreme Court called the States to furnish the details of the seizure,
storage, disposal/destruction particulars. Before issuing the said direction,
the Hon’ble Supreme Court has observed as follows in Paragraph No.11 of
the judgment in the case of Union of India v. Mohanlal reported in 2012
7 SCC 712 at page 715
11. We find considerable merit in the submissions made by
Mr Sinha. The problem is both widespread and formidable.
There is hardly any State in the country today which is not
affected by the production, transportation, marketing and
abuse of drugs in large quantities. There is in that scenario no
gainsaying that the complacency of the Government or the
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officers dealing with the problem and its magnitude is wholly
misplaced. While the fight against production, sale and
transportation of the narcotic drugs and psychotropic
substances is an ongoing process, it is equally important to
ensure that the quantities that are seized by the police and
other agencies do not go back in circulation on account of
neglect or apathy on the part of those handling the process of
seizure, storage and destruction of such contrabands. There
cannot be anything worse than the society suffering on
account of the greed or negligence of those who are entrusted
with the duty of protecting it against the menace that is
capable of eating into its vitals. Studies show that a large
section of the youth are already victims of drug abuse and are
suffering its pernicious effects. Immediate steps are,
therefore, necessary to prevent the situation from going out of
hand.
12.6.3. Thereafter, after considering the data, the Hon’ble Supreme
Court issued a direction in the case of Union of India v. Mohanlal,
reported in (2016) 3 SCC 379, which reads as follows:
31.1. No sooner the seizure of any narcotic
drugs and psychotropic and controlled substances
and conveyances is effected, the same shall be
forwarded to the officer in charge of the nearest
police station or to the officer empowered under
Section 53 of the Act. The officer concerned shall
then approach the Magistrate with an application
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required under sub-section (3) of Section 52-A, as
discussed by us in the body of this judgment under
the heading “seizure and sampling”. The sampling
shall be done under the supervision of the
Magistrate as discussed in Paras 15 to 19 of this
order.
12.7.The above direction contains two parts:
(i)No sooner the seizure of any narcotic drugs and psychotropic and
controlled substances and conveyances is effected, the same shall be
forwarded to the officer in charge of the nearest police station or to the
officer empowered under Section 53 of the Act.
(ii)The officer concerned shall then approach the Magistrate with an
application under Section 52-A(2) of the Act, which shall be allowed by
the Magistrate as soon as may be required under sub-section (3) of Section
52-A, as discussed by us in the body of this judgment under the heading
“seizure and sampling”. The sampling shall be done under the supervision
of the Magistrate as discussed in Paras 15 to 19 of this order.
12.8.Both the directions relate to the procedure to be followed after
the seizure. The said direction was issued on finding that there was no
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compliance of the procedure of taking sample at the occurrence place at
the time of the seizure as per the Central Government Notification No.
1/1989. Therefore, the intention of the guidelines issued by the Hon’ble
Supreme Court is that in case of failure to take sample and to prove the
case of the seizure, the prosecution has final opportunity to produce the
entire contraband and take the sample in the presence of the learned
Judicial Magistrate upon making the application and cause destruction of
the contraband. From the above, it is clear that the compliance of the above
direction issued by the Mohanlal Case No.II, to take inventory is the post
seizure procedure to prevent the recirculation of the contraband. In the said
circumstances, in the case wherever the contraband was seized after taking
the samples as per the Notification No.1/1989 and forwarded to the
competent officer as per Section 52 and the accused along with the seized
contraband are produced before the competent Court and the competent
Court received the contraband and issued a direction to keep the
contraband in proper custody and the same has been properly supervised
and the same has been also produced before the trial Court at the time of
the trial as a material object, as a physical evidence, the same cannot be
brushed aside on the ground that the investigating agency violated the
second part of the direction of the Mohanlal Case No.II, by not disposing
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of the seized contraband by making the application under Section 52A of
NDPS Act.
12.9.The Mohanlal Case, is applicable only to the cases where there
is a failure of physical production of the contraband as a material object
and not in all circumstances. The same was considered by the Hon’ble
Supreme Court before and after the Mohanlal case and the Hon’ble
Supreme Court has held that the said non-compliance is not fatal to the
prosecution when the prosecution proved the factum of seizure of the
contraband beyond reasonable doubt and also proved the seized materials
by producing the same before the trial Court as a material object and
identified the same, through the material witnesses as per law.
12.10.Now this Court adverts to the facts of the present case whether
the prosecution proved the possession of the contraband, seizure and
production of the contraband before the Court in accordance with the
provision of the NDPS Act and the Notification No.1/1989 ?
12.11.To address the issues, it is relevant to extract the various
provisions of the NDPS Act:
Section 52 of the NDPS Act Section 55 of the NDPS Act
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seized.—(1) Any officer arresting a person and delivered.—
under section 41, section 42, section 43 or An officer-in-charge of a police station
section 44 shall, as soon as may be, inform shall take charge of and keep in safe
him of the grounds for such arrest. custody, pending the orders of the
(2) Every person arrested and article Magistrate,
seized under warrant issued under sub- all articles seized under this Act within the
section (1) of section 41 shall be local area of that police station and which
forwarded without unnecessary delay to may be delivered to him,
the Magistrate by whom the warrant was and shall allow any officer who may
issued. accompany such articles to the police
(3) Every person arrested and article station or who may be deputed for the
seized under sub-section (2) of section 41, purpose, to affix his seal to such articles or
section 42, section 43 or section 44 shall to take samples of and from them and all
be forwarded without unnecessary delay to samples so taken shall also be sealed with
— (a) the officer-in-charge of the nearest a seal of the officer-in-charge of the police
police station, or (b) the officer station.
empowered under section 53.
(4) The authority or officer to whom any
person or article is forwarded under sub-
section (2) or sub-section (3) shall, with
all convenient despatch, take such
measures as may be necessary for the
disposal according to law of such person
or article.
From the reading of Section 52 of the NDPS Act, it is clear that the
Investigating officers shall arrest and seize the contraband. The arrestee
and the seized contraband shall be forwarded to the Magistrate without
unnecessary delay. The arrestee and the seized articles should also be
forwarded to the officer in charge of nearest police station or the officer
empowered under Section 53 of the NDPS Act. The said police officers to
whom the arrestee and the seized articles are forwarded are the officers
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under Sub Sections 2 and 3 of Section 52 of the NDPS Act, who have to
take change of and take such measures as may be necessary for the
disposal according to law of such persons or article. Disposal of the
arrestee has been made through the remand by the Magistrate. The disposal
of the seized article has been made through entrusting the custody to the
officer mentioned in Section 55 of the NDPS Act.
12.11.1.The officer who has received the seized article from the
officer mentioned in the NDPS Act is to act as per Section 55 of the NDPS
Act and should take charge of the said seized articles and keep in the safe
custody either by affixing the seal to such articles or allow to take samples
of and from them and all sample so taken shall also be sealed with a seal of
office in charge of police station, till the orders of the Magistrate.
Therefore, from the reading of Sections 52 and 55 of the NDPS Act, the
disposal of the seized articles by the ground level officers ends with
entrustment of the same with the officer mentioned in Section 55 of the
NDPS Act. The officer mentioned in Section 55 of the NDPD Act, is duty
bound to keep safe custody of the properties till the orders of the
Magistrate. This original position of the Act before the incorporation of
Section 52A of the NDPS Act, ie., 29.05.1989, is that the Union
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Government had issued the notification No.1/1989, in the form of
instruction to the investigating officer to follow the procedures during the
course of the arrest and seizure of the articles with the accused person.
12.12.In this case, the contraband was recovered on 21.11.2020 at
08.30a.m. As per the above notification, the samples S1 to S4 also were
taken. Remaining contraband also were packed as P1 and P2 at the
occurrence place itself and Athachi was prepared. All the samples and the
entire contraband were produced before the Court on the same day itself.
From 91 with the particulars of the recovered samples of contraband were
also produced before the learned Judicial Magistrate, on the same day itself
at the time of the remand of the accused. The learned Judicial Magistrate,
after accepting the contraband and verification, directed it to be produced
before the Principal Special Court for EC and NDPS Act Cases, Madurai.
Thereafter, samples and the remaining contraband were produced before
the Special Court for EC and NDPS Act, Madurai. The relevant form 91
are as follows:-
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CRL.A(MD).Nos.614, 616 and 629 of 202212.13.The said contraband was produced during the course of the
trial and marked as M.O.1 to M.O.6 and the same was identified by the
witnesses. P.W.1, P.W.2 and P.W.3 have cogently deposed about the above
recovery and the taking of the samples and packing of the remaining
contraband and identified the same before the Court at the time of trial.
The learned trial judge also, in the final portion of the judgment in
Paragraph No.11.9.c has directed to take steps for the destruction of the
contraband after the appeal period is over. Therefore, the argument of the
appellant on the basis of the judgment of the Hon’ble Supreme Court
reported in 2023 Live Law SC 549 and 2023 Live Law SC 570 is
misconceived and the facts of the said case is entirely different from the
present facts of the case. In the above cases, the specific stand of the
prosecution is that the entire contraband was destructed and hence, the
Court took a view along with the other circumstances that the prosecution
has not proved the case beyond reasonable doubt.
12.14.Since the question of the compliance of the procedure is
factual aspect and only in the case of the non compliance which cause
failure of justice and creates doubt over the prosecution case over the
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recovery, this Court is duty bound to consider the same. On perusal of the
entire material and other records and careful appreciation of the deposition
of the witnesses and the explanation furnished by the appellant during the
course of the questioning under Section 313 of Cr.P.C., this Court finds
that the appellant never raised the said plea during the entire course of the
trial. But, the learned counsel argued that the non-compliance amounts to
failure of justice, and this Court is duty bound to see any failure of justice
has occurred.
12.15.In view of the above discussion, this Court is not inclined to
accept the submission of the counsel for the appellant that the non
compliance of the 52A of the NDPS Act vitiated the conviction of the
appellant under Section 8(c) read with Section 20(b)(ii)(c) of the NDPS
Act, 1985.
13. The learned counsel appearing for the appellant submitted that
the Section 57 of NDPS Act, is not complied with. The said submission is
against the record. The P.W.4 clearly deposed about the receipt of the
report under Section 57 of NDPS Act, on the same day itself and the same
was marked as Ex.P.16.
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14.The learned counsel appearing for the appellants submitted that
the conviction under Section 29(1) of NDPS Act, is not sustainable. It is
well settled principle that even after acquittal of some of the accused, on
the basis of the remaining evidence, the accused can be convicted. It is
well settled principle that even though five accused were acquitted on the
basis of the evidence of the prosecution witnesses, the conviction against
the appellant is maintainable, since the prosecution witnesses clearly speak
about the involvement of the appellant in the alleged offence. When the
evidence adduced by the prosecution is intrinsically inseparable and the
conviction is passed in favour of one accused and the acquittal is passed on
the other accused, the principle of parity is applicable. When the evidence
is separable, it would be open to the Court to convict the accused
notwithstanding the fact that the evidence has been found to be deficient to
prove the guilt of other accused. The Hon’ble Supreme Court in the case of
Gangadhar Behera v. State of Orissa, reported in (2002) 8 SCC 381 is as
follows:
15. Even if a major portion of the evidence is
found to be deficient, in case residue is sufficient to
prove guilt of an accused, notwithstanding acquittal
of a number of other co-accused persons, his
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conviction can be maintained. It is the duty of the
court to separate the grain from the chaff. Where
chaff can be separated from the grain, it would be
open to the court to convict an accused
notwithstanding the fact that evidence has been
found to be deficient to prove guilt of other accused
persons. Falsity of a particular material witness or
material particular would not ruin it from the
beginning to end.
The said principle was reiterated by the Hon’ble Supreme Court in number
of cases. The latest decision of the Hon’ble Three Member Bench of the
Supreme Court reaffirmed the same in the following terms:
In Achhar Singh v. State of H.P., (2021) 5 SCC 543
26. The learned State counsel has rightly relied on
Gangadhar Behera [Gangadhar Behera v. State of Orissa,
(2002) 8 SCC 381 : 2003 SCC (Cri) 32] to contend that
even in cases where a major portion of the evidence is
found deficient, if the residue is sufficient to prove the
guilt of the accused, conviction can be based on it. This
Court in Hari Chand v. State of Delhi [Hari Chand v.
State of Delhi, (1996) 9 SCC 112 : 1996 SCC (Cri) 950]
held that : (Hari Chand case [Hari Chand v. State of
Delhi, (1996) 9 SCC 112 : 1996 SCC (Cri) 950] , SCC pp.
124-25, para 24)
“24. … So far as this contention is concerned it must be
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kept in view that while appreciating the evidence of
witnesses in a criminal trial especially in a case of
eyewitnesses the maxim falsus in uno, falsus in omnibus
cannot apply and the court has to make efforts to sift the
grain from the chaff. It is of course true that when a
witness is said to have exaggerated in his evidence at the
stage of trial and has tried to involve many more accused
and if that part of the evidence is not found acceptable the
remaining part of evidence has to be scrutinised with care
and the court must try to see whether the acceptable part
of the evidence gets corroborated from other evidence on
record so that the acceptable part can be safely relied
upon.”
In this case, remaining acquitted accused were not present in the scene of
occurrence and they were arrayed on the basis of the confession of the
appellants. There was no further material available to convict the said
accused. Therefore, the learned trial Judge acquitted the remaining
accused. But, the appellants were present and jointly carried the
contraband. Therefore, the unusual company of the three persons with the
contraband itself is a strong circumstances to prove the conspiracy between
them.
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15.The learned counsel appearing for the appellants submitted that
D1 to D3 arrest memo is not accepted. As rightly pointed out by the
learned Additional Public prosecutor that the same is arrest intimation,
which has been prepared at the police station, after registration of the case.
As per the D.K.Basu guidlines after the arrest, arrest intimation should be
sent to the relative of the accused. For that purpose, the arrest intimation
was preferred and the same was also produced before the learned trial
judge on the same day itself along with accused. In the said circumstances,
the presence of the crime number in the arrest intimation does not create
any doubt over the case. The learned counsel further submitted that arrest
memo is different from the arrest intimation. Arrest memo is prepared at
the place of occurrence and the same were marked as Ex.P7 to Ex.P.9.
Arrest intimation is prepared at the Station, after the registration of the
case. In the said circumstances, the submission of the learned counsel for
the appellants regarding the D1 to D3 arrest memo is not accepted.
16.Accordingly, the conviction and sentence passed by the
learned Principal Special Court for NDPS Act cases, at Madurai, in
C.C.No.279 of 2021, dated 18.08.2022, is hereby confirmed and the
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Criminal Appeals are dismissed.
14.03.2024
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
vsg
To
1.The learned Principal Special Judge for NDPS Act cases,
Madurai.
2.The Inspector of Police,
Keeraithurai Police Station,
Madurai City.
3. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
4.The Section Officer,
Criminal Section(Records),
Madurai Bench of Madras High Court, Madurai.
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K.K.RAMAKRISHNAN,J.
vsg
Pre-delivery Order made in
CRL.A(MD).Nos.614, 616
and 629 of 2022
14.03.2024
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