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TMI Blog2023 (4) TMI 1188X X X X Extracts X X X X X X X X Extracts X X X X ..... nvicted the accused no.1 (appellant in Criminal Appeal No.1185 of 2011) for the offences punishable under Section 8(c) read with Sections 21(c), 27A, 28 and Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act'). He was sentenced to undergo rigorous imprisonment for a period of 11 years and to pay a fine of Rs.1 lakh. In default of payment of fine, he was sentenced to undergo rigorous imprisonment for six months. Accused no.3 (appellant in Criminal Appeal No.451 of 2011) was convicted for the offences punishable under Section 8(c) read with Sections 21(c) and 29 of the NDPS Act. The sentence is the same as that of accused no.1. In appeal, while confirming the conviction, the High Court of Judicature at Madras reduced the sentence of both of them to ten years. The default sentence was reduced to one month. The other two accused with whom we are not concerned, were convicted for different offences punishable under the NDPS Act. SUBMISSIONS OF THE APPELLANTS CRIMINAL APPEAL NO. 451 OF 2011 2. Shri Sushil Kumar Jain, the learned senior counsel appearing for the appellant has made submissions in Criminal Appeal No.451 of 2011 preferred by acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon the decision of this Court in the case of Union of India v. Mohanlal & Anr. (2016) 3 SCC 379 He, therefore, submitted that the prosecution is vitiated as the work of drawing the sample was done by PW2 without following subSection (2) of Section 52A. Lastly, the learned senior counsel submitted that the statements of the two independent witnesses could not have been read in evidence as the prosecution failed to prove that the presence of the witnesses could not be procured. He submitted that in the circumstances, the evidence of PW2 should have been subjected to a closer scrutiny. He submitted that there is no corroboration to the evidence of PW2 except for the alleged confessional statement which was not admissible in evidence. CRIMINAL APPEAL NO. 1185 OF 2011 5. The learned counsel appearing for the appellant in Criminal Appeal No.1185 of 2011, while adopting most of the submissions made by the learned senior counsel in the companion appeal, submitted that the appellant had already undergone a sentence of about nine years. He submitted that the confessional statement of accused no.1 was not voluntary as is clear from the report under Section 57. Moreover, in the search, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons were present. He submitted that even if confessional statements are kept out of consideration, the conviction can be sustained on the basis of the evidence of the official witnesses and in particular, PW2. The evidence of PW2 has not been shaken in the cross-examination. The learned A.S.G. would urge that no interference is called for with the concurrent findings of the Courts below. OUR VIEW 9. The prosecution's case is that PW2, who was the Intelligence Officer of the NCB, received information on 16th May 2002 at about 10:45 a.m that accused no.1 who was indulging in drug trafficking, has come to Chennai and was staying in room no.213 of the Himalaya Lodge, Triplicane, Chennai. He had come there to receive 5 kilograms of heroin from accused nos.2 and 3, who were staying in room no.211 of Hotel Blue Star International, Chennai. The information received was that the accused nos.1, 2 and 3 had planned to deliver the contraband to accused no.4 who was residing in room no.303 of Hotel Suriya, Periamet, Chennai. The job of accused no.4 was to transfer it to Tuticorin and from there, to Sri Lanka. PW2 raided room no.303 occupied by accused no.4 along with other officers and two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich reads thus: "53A. Relevancy of statements under certain circumstances. - (1) A statement made and signed by a person before any officer empowered under section 53 for the investigation of offences, during the course of any inquiry or proceedings by such officer, shall be relevant for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains. - (a) when the person who made the statement is dead or cannot be found or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the court and the court is of the opinion that having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice. (2) The provisions of subsection (1) shall, so far as may be, apply in relation to any proceedings under this Act or the rules or orders made thereunder, other than a proceeding before a court, as they apply in rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct. 17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52A( 4) of the Act, samples drawn and certified by the Magistrate in compliance with subsections (2) and (3) of Section 52A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure." (emphasis added) Thus, the act of PW2 of drawing samples from all the packets at the time of seizure is not in conformity with what is held by this Court in the case of Mohanlal2. This creates a serious doubt about the prosecution's case that the substance recovered was contraban ..... X X X X Extracts X X X X X X X X Extracts X X X X
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