FORM A
IN THE COURT OF PRINCIPAL SPECIAL COURT UNDER EC & NDPS ACT CHENNAI.
PRESENT: Tmt.C.THIRUMAGAL, M.L.,
Principal Special Judge, EC & NDPS Court, Chennai
Date of Judgment: 23.07.2024
Calender Case No.100/2022 in
CNR.No.TNCH0A-001924-2022
in
Crime No.2126/2021)
(On the file of the Inspector of Police, H5.New Washermenpet P.S.)
COMPLAINANT The State of Tamil Nadu
Represented by,
The Inspector of Police,
H5.New Washermenpet P.S.
REPRESENTED BY Thiru. K.J.Saravanan,
Special Public Prosecutor.
ACCUSED 1.Sathish @ Manga Sathish, M/A 26 yrs (2021),
S/o.Babu,
No.36/103. Ammani Amman Thottam,
Othavadai Street,
Tondiarpet, Chennai-81.
2.Guru Prasad, M/A 36 yrs (2021),
S/o.Ramalingam,
No.23. Ammani Amman Thottam 4th Street, New Washermenpet, Chennai-81.
3.Kamarudeen, M/A 31 yrs (2021)
S/o.Sahul Ameed,
No.16/71.Kamarajar Nagar Burma Colony, New Washermenpet, Chennai-81.
REPRESENTED BY M/s.C.Rajan, V.K.Sathyamurthy, R.Dinesh and K.S.Balaji
Venkatesh for A1.
M/s.M.Illiyas and A.Venkateswara Babu for A2
M/s.G.Sundaresan for A3
FORM B
Date of Offence 30.09.2021
Date of FIR 30.09.2021
Date of Charge sheet 23.03.2022
Date of Framing of Charges 10.05.2022
Date of commencement of evidence 29.09.2022
Date on which Judgment is reserved 11.07.2024
Date of the Judgment 23.07.2024
Date of the Sentencing Order, if any 23.07.2024
Accused Details:
Rank of the
Accused Name of the Accused Date of Arrest Date of release on bail Offences charged with Whether acquitted or convicted Sentence Imposed Period of detention undergone during the trial for the purposes of Section 428
Cr.P.C.
- Sathish @
Manga
Sathish,
S/o.Babu 30.09.21 Released on bail by
the Hon’ble
High
Court,
Madras in Crl.O.P.
No.17458/
22, dt.1.8.22 U/s.8(c) r/w 20(b) (ii)(B) and 22(C) of the NDPS
Act Convicted Mentioned below Mentioned below
2, Guru Prasad, S/o.Ramalingam 22.01.22 Released on bail by the Hon’ble
High
Court,
Madras in Crl.O.P.
No.11500/
22, dt.6.6.22 U/s.8(c) r/w 20(b)
(ii)(B),
22(C) and 29(1) of the NDPS
Act Acquitted – –
3 Kamarudeen,
S/o.Sahul
Ameed Surrendered before the XV
MM
Court,
George
Town on
08.10.21 Released on bail by
the Hon’ble
High
Court,
Madras in Crl.O.P.
No.11350/
22, dt.6.6.22 U/s.8(c) r/w 20(b)
(ii)(B),
22(C) and 29(1) of the NDPS
Act Acquitted – –
FORM C
LIST OF PROSECUTION/DEFENCE/COURT WITNESSES
A. Prosecution:
RANK NAME NAME OF EVIDENCE
PW1 Mr.Elangovan Duty Officer/Occurrence witness
PW2 Mr.Vijayaragavan Mahazar/Confession/Occurrence Witness
PW3 Mrs.Amutha Expert witness
PW4 Mr.Chidambarabarathi Investigating officer
PW5 Mr.Vanamamalai Investigating Officer
B. Defence Witnesses : NIL
C. Court Witnesses, if any: NIL
LIST OF PROSECUTION/DEFENCE/COURT EXHIBITS
A. Prosecution:
Sr.No Exhibit Number Description
1 Exhibit P-1/PW1 Information
2 Exhibit P-2/PW1 Search notice to A1
3 Exhibit P-3/PW1 Seizure mahazar from A1
4 Exhibit P-4/PW1 Report u/s.57 of the NDPS Act
5 Exhibit P-5/PW1 Arrest Report of A1
6 Exhibit P-6/PW1 Arrest memo of A1
7 Exhibit P-7/PW3 This Court’s letter to Lab
8 Exhibit P-8/PW3 Lab Report
9 Exhibit P-9/PW4 First Information Report
10 Exhibit P-10/PW4 Form-91
B. Defence: NILC. Court Exhibits: NIL
D. Material Objects:
Sr.No MO Number Description - MO1/PW1 S1 Sample from P1
- MO2/PW1 S2 Sample from P2
3 MO3/PW1 S3 Sample from P2
4 MO4/PW1 P1 – remaining contraband
5 MO5/PW1 P2 – remaining Contraband
This case came up on 22.07.2024 for final hearing before me, upon perusing the material papers on record and upon hearing the arguments of
Thiru.K.J.Saravanan, Learned Special Public Prosecutor, for the Complainant and upon hearing the arguments of M/s.C.Rajan, V.K.Sathyamurthy, R.Dinesh and K.S.Balaji Venkatesh for A1, M/s.M.Illiyas and A.Venkateswara Babu for A2,
M/s.G.Sundaresan for A3 and having stood over for consideration till this day, this Court delivered the following :
JUDGMENT
The Charge Sheet has been filed by the Inspector of Police, H5.New Washermenpet P.S. that A1 to A3 had criminally conspired with them for selling of psychotropic tablets and ganja and in pursuance of the said conspiracy, on 30.09.2021 at 08.15 hours, near steps at Tea Shop, which is situated under the Vaidiyanathan Fly over, the accused persons A1 to A3 were found in illegal possession of 84 Strips each containing 15 Tablets totally 1260 Nos. of Nitravet-10 Tablets and 2 Kgs of ganja and thereby A1 to A3 have committed the punishable offences u/s. 8(c) r/w 20(b)(ii)(B), 22(C) and 29(1) of the NDPS Act. - The prosecution case is as follows :
On 30.09.2021 at 07.45 a.m. PW1/Mr.Elangovan, Sub-Inspector of Police, H5.New Washermenpet P.S. had received an information through phone while he was at station on duty that “on 30.09.2021 at 7.45 a.m. near Tea Shop at Vaidiyanathan Fly Over, one person namely Sathish @ Manga Sathish, M/A 28 yrs, S/o.Babu, Othavadai Street, Ammani Amman Thottam, Tondiarpet would come to sell psychotropic tablets and ganja.” PW1 reduced the said information in writing, which is marked as Ex.P.1 and submitted before his immediate superior officer Mr.Chidambara Bharathi(PW4), Inspector of Police for obtaining his approval. After getting permission from PW4, PW1 along with his team of LW2/Mr.Vinoth Kumar, Gr.I.PC – 44463 and PW2/Mr.Vijayaraghavan, PC-52746 reached the spot with NDPS Kits. On identification made by the informant, PW1 and his team tried to secure 3 persons. Out of them, 2 persons were escaped from the spot. PW1 and his team secured A1 only. PW1 enquired him. He revealed his name and address as told already by the informant and PW1 conveyed him about the information which already he received. Further he conveyed his right and also explained him the provisions of Section 50 of NDPS Act that he has the rights to be searched before a Gazetted Officer or a Magistrate. A1 conveyed his consent for searching him by PW1 and his team. During the search, PW1 called Mr.Koniraj, M/A 27 yrs, S/o.Annadurai and Mr.Baskar, M/A 31 yrs, S/o.Hari Krishnan for independent witnesses to be the witnesses for search. Since tthey refused to be the independent witnesses for search, PW1 had conducted the search in the presence of official witnesses such as LW2/Mr.Vinoth Kumar, Gr.I.PC – 44463 and
PW2/Mr.Vijayaraghavan, PC-52746. At the scene of occurrence, PW1 had prepared Search Notice to A1 u/s.50(1) of the NDPS Act, which is marked as Ex.P.2 and issued to him. PW1 had got signature of accused person, witnesses in Ex.P.2 and he also signed it. While searching, A1 had produced a rose colour polythene bag. PW1 had opened the said bag. It was found 84 Strips each containing 15 Tablets totally 1260 Nos. of Nitravet-10 Tablets, weighing at 705 grams. One strips, which containing 15 Tablets was taken for sample and the same was packed in brown colour paper and sealed it and the same was marked as S1. The remaining 83 Strips were packed in brown colour paper and sealed it separately and the same was marked as P1. A1 has also produced a black colour bag. PW1 had opened the said bag. It was found contraband appears to be ganja. It was weighed. The weight of contraband is 2 Kgs. Two samples each weighing 50 grams were drawn and folded in khakhi colour paper and sealed separately. The two samples were marked as S2 and S3 and the remaining contraband was packed with brown colour paper and sealed it, which was marked as P2. All were seized under mahazar by PW1 in the presence of witnesses at 9.00 a.m. The seizure mahazar is marked as Ex.P.3. S1-sample, which was drawn from P1 is marked as MO1. S2 and S3 samples which were drawn from P2 are marked as MO2 and MO3 respectively. P1- remaining 83 Strips of Nitravet-10 Tablets is marked as MO4. P2-remaining bulk ganja is marked as MO5. Then PW1 arrested the accused A1/Manga @ Sathish Manga at 9.45 hours and then recorded his voluntary confession at the spot in the presence of witnesses. Thereafter, he returned to police station with accused and seized properties and handed over to PW4 along with report u/s.57 of NDPS Act. The report is marked as Ex.P.4. Then PW4 registered an FIR in Crime No.260/2019 at 16.15 hours for the alleged offences u/s.8(c) r/w 20(b)(ii) (B) and 22(C) of NDPS Act against the A1.Sathish @ Manga Sathis and two absconding accused namely Guruprasth and Kamarudeen, who escaped from the spot. FIR is marked as Ex.P.9. PW1 had also prepared arrest report and arrest memo for A1, which are marked as Ex.P.5 and Ex.P.6. He recorded the statements of all witnesses. Then he produced the accused A1 before the learned XV Metropolitan Magistrate, George Town for remand along with properties under Forms-91 and the accused-A1 was remanded to judicial custody on the same day. The Form-91 is marked as Ex.P.10. The contraband along with samples were produced by PW4 before this court on 02.02.2022 vide A.No.25/2022 along with requisition to send the sample to lab. On requisition of PW4, the samples S1 and S2 were sent to Lab vide this court’s letter dt.02.02.2022 through Mrs.Makali, Gr.I. PC-30381. This court’s letter to lab is marked as Ex.P.7. After chemical examination completed by Mrs.Amudha, Chemical Examiner (PW3), the Lab Report was prepared and sent to this court, which is marked Ex.P.8. PW4 examined PW3 and recorded her statement. At this juncture, PW4 had been transferred to some other station and PW5/Mr.Vanamamalai, Inspector of Police had taken over the charge of H5.New Washermenpet P.S. On the basis of voluntary confession of A1, the FIR was already registered against the absconding accused A2.Guruprasad and A3.Kamarudeen by PW4. PW5 had searched the two said absconding accused persons. During investigation, A3/Kamarudeen had surrendered before the learned XV Metropolitan Magistrate, George Town on 08.10.2021 and remanded to judicial custody. On
22.01.2022 at 13.30 hours at the junction of T.H.Road and Balakrishna Road, A2/Guruprasad was arrested by PW5 and remanded to judicial custody on the same day. After completing investigation, PW5 had filed the Charge Sheet against A1 to A3 for the punishable offences u/s.8(c) r/w 20(b)(ii)(B), 22(C) and 29(1) of NDPS Act. - On appearance of the accused, free copies were furnished to the accused.
This court had framed the charges u/s.8(c) r/w 20(b)(ii)(B), 22(C) and 29(1) of the NDPS Act against A1 to A3. When the charge was read over and explained to the accused in Tamil, he denied the same, pleaded not guilty and claimed to be tried.
4.The prosecution side evidence was closed by the Learned Special Public Prosecutor with the examination of PW1 to PW5. When the accused was questioned u/s 313(1)(b) Cr.P.C as to the incriminating evidence on them in the evidence of prosecution witnesses, they denied the same as false. On the side of the prosecution, PW1 to PW5 were examined and Ex.P.1 to Ex.P.10 were marked through them. M.O.1 to M.O.5 were also marked on the side of the prosecution. On the side of the accused, no witnesses examined and no exhibits marked. Heard the arguments of both sides. - POINT FOR CONSIDERATION:
Whether the prosecution had proved the charges of u/s. u/s.8(c) r/w 20(b)(ii)(B), 22(C) and 29(1) of the NDPS Act? - THE REASONS FOR THE DECISION:
- The accused A1 to A3 were said to be in illegal possession of 84 Strips each containing 15 Tablets totally 1260 Nos. of Nitravet-10 Tablets, which contains Nitrozepam and 2 Kgs of ganja for the purpose of selling. On
30.09.2021 PW1/Mr.Elangovan, Sub-Inspector of Police, H5.New Washermenpet received information through phone at 07.45 hours that “on 30.09.2021 at 7.45 a.m. near Tea Shop at Vaidiyanathan Fly Over, one person namely Sathish @ Manga Sathish, M/A 28 yrs, S/o.Babu, Othavadai Street, Ammani Amman Thottam, Tondiarpet would come to sell psychotropic tablets and ganja.” Thus PW1 reduced the information into writing and had submitted before his superior PW4/Mr.Chidambara Bharathi, Inspector of Police, H5.New Washermenpet P.S. and had obtained permission at on the same day. The said information is marked as Ex.P.1. As such Sec.42(2) of the NDPS Act was complied. - Further PW1 had proceeded near the aforementioned Tea Shop situated under Vaidiyanathan Fly Over along with his team. PW1, PW2 and LW2 had tried to secure the suspected persons, but A2 and A3 got escaped. A1 was intercept by PW1 and his team. After completion of enquiry, PW1 had issued a search notice u/s.50(1) of the NDPS Act to A1, where PW1, PW2 and LW2 and the accused person A1/Sathish @ Manga Sathish had signed in the Ex.P.2 document. Hence, Sec.50 of the NDPS Act was also complied.
- Further, at 09.00 hours on 30.09.2024 at the incident spot near upstair steps at Tea Shop under the Vaidiyanathan Fly Over, seizure was made from A1 and seizure mahazar/Ex.P.3 was drawn. On search, a rose colour polythene bag was produced by A1, which contained 84 Strips each containing 15 Tablets totally 1260 Nos. of Nitravet-10 Tablets and the same was seized. One strip was drawn for sample, which was marked as S1 and the remaining 83 strips were packed separately, which was marked as P1. At the relevant point of search, another black colour bag was produced by A1. It was opened by PW1 and the same was contained contraband which appears to be ganja. The weight of ganja was 2 Kgs. Two samples each weighing 50 grams were drawn for samples, which were marked as S2 and S3 and were packed separately. The remaining contraband was packed separately, which is marked as P2. All were sealed properly. The detailed labels, which were signed by witnesses and accused A1/Sathish @ Manga Sathis and PW1 were affixed on S1, S2, S3, P1 and P2. Before this court they are marked as MO1 to MO5 respectively. All were seized under mahazar, which is Ex.P.3. Usually for these type of NDPS Act, public people will be always reluctant to stand as witness. Hence, PW2 and LW2, who are the police had stood as a witness and had signed in the seizure mahazar Ex.P.3. During trial the police witnesses PW2 had clearly deposed about the procedure done by PW1 on 30.09.2021 at the spot. After completion of seizure, the arrest was made by PW1. The voluntary confession of A1 was also recorded by PW1 at the spot in the presence of witnesses. The evidence of PW1 and PW2 are very cogent and reliable and the documents Ex.P.1 to Ex.P.3 and Sec.57 of the NDPS Act report/Ex.P.4, arrest card/Ex.P.4 and arrest memo/Ex.P.5 are very clear, cogent, legible and reliable regarding to identification of accused, issuing notice u/s.50(1) of NDPS Act and seizure of contraband from the accused. The search and seizure was made properly by PW1 as per provisions of NDPS Act.
- After completing the seizure and arrest formalities, PW1 returned to station along with accused and seized properties and handed over to his superior PW4 along with report u/s.57 of the NDPS Act, which is Ex.P.4. FIR was registered by PW4 in Cr.No.2126/2021, u/s.8© r/w 20(b)(ii)(B) and 22(C) of the NDPS Act against the A1/Sathish @ Manga Sathish and two other absconding accused namely A2.Guruprasath and A3.Kamarudeen. The FIR is marked as Ex.P.9. Sec.57 of the Act was also complied by PW1. Accused A1 was produced before the Magistrate at 8.55 p.m along with Form-91 on the very same day by PW4. Form-91 is marked as Ex.P.10. On 02.02.2022,
the entire contraband P1 and P2 along with samples S1 to S3 were produced by PW4 before this court along with requisition for sending to the Lab for analysis. The samples S1 and S2 were sent to Lab through this court’s letter by one Mrs.Makali, Gr.I. PC 30381 and the court’s letter is marked as Ex.P.7. The property was produced before this court and the same was also sent to Lab on the very same day. In the Lab Report/Ex.P.8, Nitrazepam is detected in S1- Sample, which is covered under NDPS Act and Cannabinoids(ganja) is detected in S2-Sample, which is also covered under NDPS Act. From the voluntary confession of A1, it revealed that A2 and A3 are the persons who escaped from the spot and who were involved with him to purchase the said seized contraband from Andhra Pradesh for the purpose of selling. During the investigation of this case, A3/Kamarudeen had surrendered before the learned XV Metropolitan Magistrate, George Town on 08.10.2021 and remanded to judicial custody. Under such circumstances, PW4 had transferred to some other station and had handed over to the entire case records to PW5/Mr.Vanamamalai, Inspector of Police. While searching the another accused person A2 by PW5, on 22.01.2022 at 13.30 hours at the junction of T.H.Road and Balakrishna Road, A2/Guruprasad was arrested by PW5 and remanded to judicial custody on the same day. After completing investigation, PW5 had laid the Charge Sheet against A1 to A3 u/s.8(c) r/w 20(b)(ii)(B), 22(C) and 29(1) of NDPS Act. - PW1 had clearly deposed before this court about the compliance of provisions under this Act at the time of search, seizure, sampling and arrest of A1. PW2, who is one of the seizure and confession witness had also corroborated the evidence of PW1.
- PW4, who is the investigating officer had clearly established in his evidence about the permission given to PW1 through Ex.P.1 and about the registering the FIR against the A1/Sathish @ Manga Sathish and other two absconding accused persons A2.Guru Prasanth and A3.Kamaruthin, remand of the accused-A1, production of contraband before this court, sending samples which was drawn by PW1, examination of witnesses by him and had also clearly established in his evidence about the handing over the entire case records to PW5. PW5, who is the investigation officer had also clearly established in his evidence about the arrest of A2, completion of investigation and filing of charge sheet against the accused persons before this court.
- The defence counsels for A1 to A3 argument is that all the witnesses are police officials and no independent witnesses are enquired by the prosecution. Non-production of independent witnesses is fatal to the prosecution case and hence the accused deserves for acquittal. Admittedly, no such independent witness was produced by PW1 in this case. Generally, for these type of offence under NDPS Act, public would not come forward to be the witnesses for the search, seizure, arrest and other procedure. The prosecution also had not taken any action against the independent witnesses, who refused to be the witnesses under the procedure of NDPS Act. That is entirely different. At the same time, it is not fatal to the prosecution case and the said argument by the defence counsel is rejected.
- The defence counsel for A1 argument is that the information was recorded by PW1 into writings in Ex.P.1, but the said document Ex.P.1 needs corroboration for which the GD entry being supportive document was not produced by the prosecution. The present case, which has been registered under NDPS Act, whenever the officer receives the information in connection with Narcotic and Psychotropic Substances, the same takes down in writing under section 42(2) of the NSPS Act by the Officer and the same shall send to his immediate official superior within 72 hours. In our case, the information was received by PW1 at 07.45 hours on 30.09.2021 and the same was reduced into writings in Ex.P.1 and the same was submitted before his superior PW4 on the very same day. Therefore, the mandatory provision u/s.42(2) of the NDPS Act was properly complied by PW1 and the non-production of G.D. does not affect the case of prosecution in any way. Therefore, the said argument by the defence counsel is rejected.
- The defence counsel for A1 argument is that a search notice/Ex.P.2 was issued to A1, but the consent of A1 was not recorded properly and hence the right of the accused person was not explained by PW1 and hence Sec.50 of the NDPS Act was not complied. As per provision of Sec.50 of the NDPS Act, the accused has valuable right u/s.50 of the NDPS Act and the same to be informed to the accused person that he has the right to be searched in the presence of a Gazetted Officer/Magistrate. Admittedly, PW1 had clearly conveyed the accused right, which provides u/s.50 of the NDPS Act to the accused person before conducting search. On perusal of Ex.P.2/Search Notice, it is clearly conveyed that ‘…….தகவலாளி ககாடுத்த தகவாின் அடிப்படை யில் கஞசா மற்றும் பபாடைத மாதத்ிடை கள் எனும் பபாடைதப்கபாருள் டைவத்திருப்பதற்காக பசாதடைன கசய்ய பவண்டும். அவ்வாறு பசாதடைன கசய்ய பவண்டும் என்றால் தங்கடைள அருகிலுளள் குற்றவியல் நடுவா் முன்பாகபவா அல்லது அ சு பதிவு கபற்ற அலுவலா் முன்பாகபவா அடை%தது்ச் கசன்று தான் பசாதடைன கசய்ய பவண்டும் என்று பக ்கிற உாிடைம பபாடைதப்கபாருள் மற்றும் மனம் மயக்க டைவக்கின்ற கபாரு ்களின் ச ் ப்பிாிவு 50(4)ன் படி உங்களுக்கு உாிடைம உள்ளது….…’’ என்று கண்டுளள் து. The mandatory provision u/s.50(1) of the NDPS Act was properly complied by PW1 before conducting search of the accused and hence the said argument putforth by the defence counsel is rejected.
- The defence counsel argument had pinpointed the fact that the contraband was produced before this court after lapse of 126 days and PW3 had received the samples from the court on 03.02.2022, but the Lab Report/Ex.P.8 was submitted to the court by PW3 only on 10.03.2022 after lapse of one month. Admittedly, the seizure was made on 30.09.2021 by PW1, but the contraband was produced before this court only on 02.02.2022. The prosecution had not produced any register to show that the contraband was in safe custody and the same is the valid ground for acquittal. On perusal of Ex.P.3/Seizure Mahazar from accused, 84 Strips each containing 15 Tablets totally 1260 Nos. of Nitravet-10 Tablets was seized. Out of them, one strip was drawn for sample, which was marked as S1. The remaining 83 strips was packed separately, which was marked as P1. At the relevant point of search, 2 Kgs of ganja was also seized from A1 and two samples each weighing 50 grams were lifted out. The said samples were marked as S2 and S3 and the remaining bulk ganja was also marked as P2. The said S1, S2, S3, P1 and P2 were packed separately and sealed properly. The detailed labels were also affixed on them, which signed by A1/Sathish @ Manga Sathish, witnesses and PW1. PW1, who is the seizure officer and PW2, who accompanied PW1 as well as mahazar witness had clearly established the said fact in their evidence. Apart from that the said packing of contraband was clearly mentioned in Form-91/Ex.P.10 and the same was produced before the remand magistrate during the remand ie on the same day 30.09.2021. The Remand Magistrate signature was also there. Admittedly the contraband was produced before this court on 02.02.2022. While production of contraband P1 and P2, samples S1, S2 and S3 before this court by PW1, the entire seal was intact and the same was verified by this court and the same was sent to Lab. PW3/Mrs.Amudha, who is an Expert evidence as well as who received the contraband from this court had deposed in her evidence that ‘……..குற்ற எண்.2126.2021 புது வண்ணா ப்பப ்டை காவல் நிடைலயம் சம்மநத்ப்ப ் வ%க்கு கபாருளான நீதிமன்ற முதத்ிடை யி ப்ப ் இ ண்டு காகித கபா ் லங்கள் முதன்டைம கபண் காவலா் 30381 திருமதி.மாகாளி மூலமாக முதன்டைம சிறப்பு நீதிமன்றம் NDPS Act கசன்டைன மூலமாக.…’’ என்று கூறியுளள்ாா். In the Lab Report/Ex.P.8, PW3 has clearly mentioned that in S1 – detected Nitrazepam in all the samples (15 tablets) of Item No.1 and in S2 – detected Cannabinoids in the sample of Item No.II. The sample in Item No.II is Ganja, eventhough there is delay in production of ganja before the court and receiving the Lab Report/Ex.P.8 by this court from the lab, it is highly sealed and packed and the nature of Nitrazepam and ganja would be same and the Chemical Analysis had not deposed anything that the delay would affect the nature of contraband and hence the same would not be ground to give benefit of doubt to accused. Therefore, the above said argument by the defence counsel are not accepted and the same are rejected. So, on careful perusal of evidence of PW1 and PW2 and prosecution documents, this court is of the view that all are very clear, cogent, legible and reliable.
11.As per evidence of PW1 and PW2, A1 was searched after issued search notice/Ex.P.2, totally 1260 Nos. of Nitravet-10 Tablets ie.84 Strips each containing 15 Tablets and 2 Kgs of ganja was seized A1 alone at the spot. As per prosecution case, while trying to secure the accused persons at the spot by PW1 and his team, A2 and A3 got escaped from the spot and A1 alone was secured. The above mentioned contraband was seized from A1 alone at the spot in the presence of witnesses. A1 was alone caught red handedly. On the basis of voluntary confession of A1, it revealed that A2 and A3 are the persons who escaped from the spot and who were involved with him to purchase the said seized contraband from Andhra Pradesh for the purpose of selling. During the investigation of this case, A3/Kamarudeen had surrendered before the learned XV Metropolitan Magistrate, George Town on 08.10.2021 and remanded to judicial custody. While searching the another accused person A2 by PW5, on 22.01.2022 at 13.30 hours at the junction of T.H.Road and Balakrishna Road, A2/Guruprasad was arrested by PW5 and remanded to judicial custody on the same day. Even, A2 or A3 was not taken police custody for interrogation by the prosecution and no incriminating materials was collected from them to show that A2 and A3 had a criminal conspiracy with A1 during the relevant point of time for purchasing the seized contraband from Andhra Pradesh and no such linking material was produced by the prosecution before this court except confession statement of A1. The confession statement of A1 is inadmissible because there is no relevant document or evidence to show the criminal conspiracy for purchasing the seized contraband and for trying to sell the seized contraband. There is no chain of link between A1 to other accused persons and it was not established by prosecution. No such recovery of contraband goods was also seized from A2 and A3. The prosecution has miserably failed to prove the case against A2 to A3.
12.So as such charge framed against A2 and A3, under 8(c) r/w 20(b)(ii)(B), 22(C) and 29(1) of the NDPS Act, no such criminal conspiracy and illegal possession of ganja, Nitravet Tablets and recovery was made from A2 and A3. Hence, A2 and A3 accused are deserved for acquittal.
13.In our case evidence of PW1 to PW5 and the documents established before the court as against A1 are very cogent and reliable. As per NDPS Act u/s.42(1), 50(1) and 57 of the act were promptly done and accused A1 was found to be in possession of goods which are prohibited under NDPS Act. PW1 seized totally 1260 Nos. of Nitravet-10 Tablets weighing 705 grams ie.84 Strips each containing 15 Tablets and 2 Kgs of ganja from A1. As per Ex.P.8/Lab Report, the seized contraband are found to be Nitrazepam and Ganja respectively. As per Notification of Ministry of Finance, Department of Revenue Notification S.O.527(E) dt.16.07.1996 and SO 1055(E) dt.19.10.2001 as amended, in Serial No.221, the small quantity of Nitrazepam is 20 grams and the commercial quantity of Nitrazepam is 500 grams. Here, totally 1260 Nos. of Nitravet-10 Tablets weighing 705 grams was seized from A1/Sathish @ Manga Sathish, which is of commercial quantity. Hence A1 accused is found guilty u/s.8(c) r/w 22(C) of the NDPS Act and 2 Kgs of gnaja was also seized from A1/Sathish @ Manga Sathish, which is intermediate quantity. Hence A1 accused is found guilty u/s.8(c) r/w 20(b)(ii)(B) of the NDPS Act. There is no linking evidence to show the criminal conspiracy between A1 to other accused persons and hence A1 accused is found not guilty u/s.8(c) r/w 29(1) of the NDPS Act. Whereas as against A2 and A3, since there is no such effective evidence and documents to substantiate the charges u/s.8(c) r/w 22(C) and 8(c) r/w 20(b)(ii)(B) and 8(c) r/w 29(1) of NDPS Act against A2 to A3. Hence A2 and A3 are acquitted under the aforesaid charge framed against them. - In the result, accused A1/Sathish @ Manga Sathish is found guilty u/s.8(c) r/w 22(C) and 8(c) r/w 20(b)(ii)(B) of the NDPS Act and he is not found guilty u/s.8(c) r/w 29(1) of the NDPS Act. A2 and A3 are found not guilty u/s.8(c) r/w 22(C) and 8(c) r/w 20(b)(ii)(B) and 8(c) r/w 29(1) of the NDPS Act.
15.With regard to the sentence to be imposed, the accused A1/Sathish @ Manga Sathish was questioned. They replied as follows:
A1: bgha; tHf;F/ Fiwe;jgl;r jz;lid tH’;FkhW nflL; f; bfhs;fpnwd;/ - The plea of the accused considered. There are 12 previous cases under IPC pending against the A1/Sathish @ Manga Sathish. The seized contraband from A1 is commercial quantity as well as intermediate quantity. It causes deadly impact on the society.
- Accordingly accused A1 is sentenced u/s. 235(2) Cr.P.C. to undergo rigorous imprisonment for 12 years and to pay a fine of Rs.1,20,000/for the offence u/s.8(c) r/w 22(C) of the NDPS Act, and in default of payment of fine thereof to undergo further period of 6 months R.I. and to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.50,000/- for the offence u/s.8(c) r/w 20(b)(ii)(B) of the NDPS Act, and in default of payment of fine thereof to undergo further period of
6 months R.I. The total fine amount for A1/Sathish @ Manga Sathish is Rs.1,70,000/- - Further A1/Sathish @ Manga Sathish is found not guilty u/s.8(c) r/w 29(1) of the NDPS Act and he is acquitted from the said charge alone.
- Further A2 and A3 are found not guilty u/s.8(c) r/w 22(C), 8(c) r/w 20(b)(ii)(B) and 8(c) r/w 29(1) of the NDPS Act and they are acquitted from the said charges.
- The period of remand already undergone by the accused are ordered to be set off u/s 428 of Cr.P.C. A1 was remanded to judicial custody on 30.09.2021. Subsequently, he was released on bail by the Hon’ble High
Court, Madras in Crl.O.P.No.17458/22, dt.01.08.2022. Subsequently he was arrested and produced on execution of NBW and remanded to judicial custody on 21.03.2023 and then he was released on bail by this court in Crl.M.P.No.1867/2023, dt.21.03.2023.
Property order: The M.O.1 to M.O.3, in A.No.317/2019, dt.25.11.2019 are ordered to be to be destroyed by handing over the same to the destruction committee after the appeal period and if any appeal is preferred, after the disposal of said appeal. MO4 – cash of Rs.3,300/- which was deposited in RBI is ordered to be confiscated to State after appeal period is over. - Property order: M.O.1 to M.O.5 (in A.No.25/2022, dt.02.02.2022) are the contraband and samples are ordered to be destroyed by handing over the same to the destruction committee after the appeal period and if any appeal is preferred, after the disposal of said appeal.
//Dictated by me, typed by Steno – typist directly in the system, corrected and pronounced by me in open court, this the 23rd day of July, 2024.// Principal Special Judge, EC & NDPS Court, Chennai. L.B.