T. Sudanthiram, J.@mdashThe appellant herein is the accused in C.C. No. 217 of 2002, on the file of the Principal Special Judge, Special Court
under NDPS Act, Chennai, and he stands convicted for the offence u/s 8(c) r/w 21 of the NDPS Act and sentenced to undergo ten years rigorous
imprisonment and to pay a fine of Rs. 1,00,000/- in default to undergo six months rigorous imprisonment. Aggrieved by the said conviction and
sentence, the appellant had preferred this criminal appeal.
2. The case of the prosecution is that the accused was originally arrested in connection with another case in Crime No. 1466 of 2001, on the file of
the Vadapalani Police Station, for the offences u/s 67 and 72 of Information Technology Act and Section 4 r/w 6 of the Indecent Representation
of Women (Prohibition) Act. P.W.1 - Assistant Commissioner of Police, T-Nagar, was the Investigating Officer in this case. The accused was
arrested and produced before the XVII Metropolitan Magistrate, Saidapet on 25.12.2000 and he was remanded. On application filed before this
Court, this Court granted six days police custody. Originally the custody was given from 28.12.2001 to 01.01.2002 and then further six days
custody was given from 01.01.2002 to 07.01.2002. On 06.01.2002 at about 8.30a.m., the accused gave a confession to the police. The said
confession was recorded in the presence of P.Ws.2 and 3. In the said confession, the accused, who is a Doctor had stated that if he is taken to his
clinic at Anna Nagar, he would produce the herein powder and tablets which were kept concealed. Ex.P.1 is the admissible portion of the
confession given by the accused. P.W.1, the Assistant Commissioner of Police went to the premise at No. A.A-23, III Street, Third Main Road,
Anna Nagar, Chennai-40, along with the police party and the accused. The accused and the police entered into the clinic. The accused went near
his seat and behind the seat from the wooden shelf, he took out a plastic bag and produced. P.W.1 found inside the bag, a plastic packet
containing 55 grams of heroin. P.W.1 seized the heroin under a mahazar Ex.P.2 and P.Ws.2 and 3 also signed in the said mahazar. He sealed the
heroin packet. He came to the police station along with the accused and the seized contraband and he also prepared a Special Report Ex.P.3 and
sent it to the Deputy Commissioner of Police, Guindy. He prepared Form-95 Ex.P.4. P.W.5 - Inspector of Police, K-4, Anna Nagar Police
Station, on receipt of the special report Ex.P.3 given by the Assistant Commissioner, registered a case against the accused in Crime No. 15 of
2002 under Sections 8(c) r/w 21 of NDPS Act at 7.00p.m and he also prepared Ex.P.13, First Information Report. P.W.5 took up further
investigation and recorded the statement of witnesses on 07.01.2002. He sent a requisition to the Court for sending the contraband for chemical
analysis which was marked as Ex.P.4.
3. P.W.4 is the Chemical Analyst in this case who had given a report Ex.P.11 stating that the property which was sent for analysis was found
containing Di-Acetyl-Morphine (heroin).
4. P.W.5 after completing the investigation, on receiving the chemical analysis report laid the final report against the accused.
5. In order to prove its case, the prosecution examined P.Ws.1 to 5, marked Exs.P.1 to P.14 and produced the material object M.O.1. When the
accused was questioned u/s 313 Cr.P.C., with regard to the incriminating materials available against him, he denied his complicity and he stated
that he was arrested by the Vadapalani Police on 24.02.2002 and subsequently there was some demand of cash from the police and as he had not
paid the amount, a case has been foisted against him. On the side of the accused, D.Ws.1 to 3 have been examined. D.W.1 is an Advocate and he
deposed that on 06.01.2002 that he went to the clinic of the accused at Anna Nagar and he reached the premise at 10.00a.m., and was waiting
there till 3.00p.m and his junior advocate came to the clinic and informed him that the police had searched the premises of the accused at different
place in Nerkundram. Junior Advocate of D.W.1 also was examined as D.W.2. A lady employee of the accused, who was working in the clinic of
the accused, was examined as D.W.3. She deposed that she went to the clinic to get salary and saw D.W.1 at 10.00 a.m. She was waiting in the
said premise till 4.00p.m. The trial Court after analysing the evidence, convicted and sentenced the accused as stated above.
6. Mr. T.K. Sampath, learned Counsel appearing for the appellant submitted that P.Ws.2 and 3 mahazar witnesses have not supported the case of
the prosecution and the evidence of P.W.1- Assistant Commissioner is most unreliable and the case has been foisted on the accused.
7. The learned Counsel appearing for the appellant/accused further submitted that even according to prosecution, though the Doctor was arrested
on 24.12.2001, confession was recorded and his clinic was searched on 25.12.2001, on that day no narcotics contraband was seized, but
subsequently prosecution alleges that the accused once again had given a confession and on the basis of the said confession, 55 grams of heroin
was seized from the same premises. Learned Counsel further submitted that it is not stated either in the mahazar Ex.P.2 or in the special report
Ex.P.3 given by P.W.1 that the property which was seized was sealed. The property also was sent to the court only on 10.01.2002.
8. Per contra, Mr. Paul Nobel Devakumar, learned Government Advocate (Criminal side) submitted that though P.Ws.2 and 3 have turned
hostile, the evidence of Assistant Commissioner of Police could be accepted. The confession said to have been given by the accused in Ex.P.1
which lead to the recovery of contraband and mahazar Ex.P.2 corroborates the evidence of P.W.1. Learned Government Advocate (Criminal
side) further submitted that the property was produced before the learned V Metropolitan Magistrate, Saidapet, Chennai, on 07.01.2002 as per
Ex.P.4 and the learned Magistrate directed to produce the contraband before the NDPS Special Court. Therefore, it was produced before the
NDPS Special Court on 10.01.2002.
9. This Court considered the submissions made by both parties and perused the records. It is the evidence of P.W.1- Assistant Commissioner of
police that the accused was already arrested in connection with another case by Vadapalani Police and he was the Investigating Officer in the said
case. The custody of the accused was given to the police from 01.01.2002 to 07.01.2002 as per the order passed by the learned Magistrate.
According to P.W.1, the confession was given by the accused at 8.30a.m., on 06.01.2002 and it was recorded in the presence of P.Ws.2 and 3.
Only in pursuance of the said confession, P.W.1 went to the clinic of the accused and the contraband was seized. In the cross examination, it is
elicited that the accused had already given confession on 24.12.2001 and 29.12.2001, but in those confessions, the accused had not revealed
about the heroin being kept in his clinic. During cross examination, though P.W.1 had denied that the clinic of the accused was searched on
25.12.2001, subsequently, he himself had admitted that some of the articles were recovered from the clinic on the basis of the confession given by
the accused, but he added that the place was not searched fully. This answer given by P.W.1 is not so convincing to this Court. It is very difficult to
accept that the clinic was not searched on 25.12.2001 even after some articles were recovered from the said place.
10. According to P.W.1, the accused had given a fresh confession on 06.01.2002, and on that day, he had revealed about the concealment of
heroin in the clinic. Pws.2 and 3 who stood as witnesses in the confession and also for the search and seizure of the contraband have turned
hostile. According to P.W.1, though both witnesses P.Ws.2 and 3 were produced by the Inspector of Police, Mohanraj, P.W.1 had not taken any
steps to get any respectable witnesses from that locality where the clinic is situate. It appears that same P.Ws.2 and 3 had been the witnesses for
the earlier confession by the accused and recovery. P.W.1 had admitted that the watchman of that clinic was present. It is not known as to why the
signature of the watchman was not obtained in the mahazar. Though P .W .1 had stated that it was the accused who himself voluntarily took out
the contraband and produced it to him, his signature was not obtained in mahazar Ex.P.2 and copy not served to him.
11. Though P.W.1 had stated in the Chief examination that the property which was recovered was sealed, either in Ex.P.2 mahazar or in Ex.P.3
special report, it was not mentioned that the property was sealed. Form-95 was produced before the Magistrate only on the next day, i.e., on
07.01.2002 and the properties were produced before the Special Court on 10.01.2002.
12. The evidence let in by the prosecution with regard to the confession of the accused, search and seizure of the contraband from his clinic is not
credible and acceptable to this Court.
13. The trial Court in its Judgment though narrated the evidence of D.Ws.1 to 3 had not specifically rejected their evidence giving reasons. D.W.1,
who is an advocate had given evidence in favour of the accused but this Court is not analysing and taking into consideration the said evidence for
passing the order of acquittal of the accused.
14. For the reasons stated above, the criminal appeal is allowed. The conviction and sentence imposed on the accused are set aside.
