TMI Blog1999 (7) TMI 672X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that on 3-11-1995 at 16.30 hours near the main entrance of Thiruvalluvar Bus Transport Corporation bus stand, Parrys, Chennai, A1 was found in possession of 2 kgs. of heroin and the other accused were each found in possession of 1 kg. of heroin without any valid licence or permit and committed an offence punishable under Section 8(c) read with 21 of N.D.P.S. Act. P.W. 5 Baskaran was working as Inspector of Police, N.I.B. C.I.D., Chennai. On 3-11-1995, he received an information Ex. P4 from the Superintendent of Police and according to the information he went along with P.W. 3, the Sub-Inspector of Police and P.W. 4, the Head Constable and his police party went to the main gate of Thiruvalluvar bus stand and watched the accused. He intercepted the accused. In the presence of P.W. 1 and one Srinivasan. He informed them about the right to be searched before the nearest Judicial Magistrate or Gazetted Officer. AI knew only Telegu and as such P.W. 4 Muthu narrated the information in telegu and got the answer. Ex. P5 to P8 were the notices given to all the accused. He also searched the first accused and found him in possession of heroin in a polythene cover put in a cloth bag kept int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time namely 4.30 p.m. which is humanly not possible. These documents could not have been written in the P.T.C. bus stand due to heavy rain as can be seen from the report dated 13-1-1997 on Indian Meterological Department. These exhibits could have been written in the office is only the presumption of the learned Judge and there is absolutely no evidence to arrive at such a conclusion. The Court below failed to see that even from the evidence of P.W. 4, the appellants gave consent for search before the Judicial Magistrate or the Gazetted Officer, but they were not taken before the Authorities and as such there is violation of Section 50 of N.D.P.S. Act. P.W. 5 Inspector of Police himself has conducted search and as he was the Investigating Officer, it is fatal to the case of prosecution. 6. Learned Addl. Public Prosecutor stated that the Court below was justified in convicting the appellants based on the evidence of P.Ws. 3 to 5. Simply because they are police officials, their evidence cannot be thrown out on that ground . There is no reason to reject the testimony and there is corrboration in material particulars. The mandatory provisions under Sections 50 and 57 of N.D.P.S. Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judicial Magistrate or the Gazetted Officer. The evidence of P.W. 3 and 5 are contrary to the above said version. P.W. 3 in the first instance stated that the did not write the information given to the appellants and the same was written only by P.W. 5. Later he stated that on the dictation of P.W. 5 only he wrote the answers given by the appellants. P.W. 4 on the other hand stated that the answers given by the appellants were recorded by P.W. 5 and he obtained the signatures. The aforesaid discrepancy in the evidence of P.Ws. 3 and 5 go a longway to show that their evidence cannot be safely accepted and acted upon. 10. P.W. 1 has been examined as a mahazar witness to prove the recovery of contraband from these appellants. P.W. 1 turned hostile and did not support the prosecution. It has come out in evidence that steps were taken to secure the presence of other witness namely Srinivasan but the address given by him is a bogus one and as such he could not be secured. According to the prosecution, the occurrence took place at about 4.30. p.m. in fornt of Thiruvalluvar bus transport, Parrys. It is admitted that it is a busy locality and there are number of shops near the place of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .S. Act reads as follows :- (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted officer or the magistrate referred to in sub-section (1). 13. Learned Addl. Public Prosecutor also relied on V. Muhammed Basheer v. State of Kerala (1995 Cri. L.J. 1171) wherein it is observed as follows :- It is obligatory on the part of such officer to inform the person to be searched and failure to inform so and failure to take him to the Gazetted officer or the Magistrate on making such request would amount to non-compliance of section 50 which is mandatory and would affect the prosecution case and vitiate the trial. The result is that in the case of a seizure under section 43 of the Act, the condition prescribed in section 50 cannot be said to be mandatory. Section 50 direct the authorised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad filed the charge sheet. But there is no material to show that he had examined any other witness. It therefore follows that P.W. 5 was the person who really investigated the case. P.W. 5 was the person who had searched the appellants in question and he being the investigation officer, certainly it is not proper and correct. The investigation ought to have been done by any other investigating agency. On this score also, the investigation is bound to suffer and as such the entire proceedings will be vitiated. 17. The Trial Court was simply carried away by the evidence of P.Ws. 3 to 5, who are police official witnesses. There is nothing wrong in accepting the testimony of P.Ws. 3 to 5 if they are reliable and trustworthy. As adverted to, the only independent witness examined on the side of the prosecution turned hostile. Steps were taken to secure the other independent witness viz., Srinivasan, but the address given by him is false. There are number of shops and Transport Working Personnel were very near the place of offence and for reasons best known to the prosecution, they have not chosen to secure any one of them to be withnesses for the seizure. The evidence of P.Ws. 3 to 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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