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PETITIONER: PON ADITHAN

       Vs.

RESPONDENT: DEPUTY DIRECTOR, NARCOTICS CONTROL BUREAU, MADRAS

DATE OF JUDGMENT:       16/07/1999

BENCH: G.T.Nanavati, N.S.Hegde

JUDGMENT:

Nanavati,J.

     This  appeal  is directed against the judgment of  the High  Court  of Madras in Criminal Appeal No.  544 of  1989. The  High  Court confirmed the conviction of  the  appellant under  Section 8© read with Section 21 of the Narcotic Drugs and  Psychotrophic  Substances Act, 1985 and  dismissed  the appeal.

     A  complaint  was filed by the respondent against  the appellant   alleging  that  the   appellant  was  found   in possession  of  150 gms of heroin without a valid permit  on 13.4.1988 at about 6 P.M.  while he was passing on a road in the  city of Madras and thus he had committed the  aforesaid offence.  In order to prove its case the prosecution led the evidence of Gladys Lilly (P.W.1), who was then working as an Intelligence  Officer in the Narcotics Intelligence  Bureau, at  Madras and who had searched and arrested the  appellant. It  also  examined  N.  Muthu (P.W.4) who was  taken  as  an independent  witness to witness the search and arrest and in whose presence the search and arrest were made;  but, he did not support the prosecution.  Evidence was also led to prove that  what  was  found from the appellant’s  possession  was di-acetyl  Morphine,  which is popularly known as  ’heroin’. The  trial  Court  believed the evidence of  P.W.1  and  the confessional  statement  (Exh.  P- 3) made by the  appellant before P.W.1 and convicted the appellant.

     The High Court after re-appreciating the evidence held that  the  evidence of P.W.1 was reliable and sufficient  to sustain  the conviction of the appellant.  Probably  because the  High  Court found his evidence sufficient, it  did  not record  any  finding  with regard to  acceptability  of  the confessional statement of the appellant

     Mr.   Lalit, learned senior counsel for the appellant, submitted  that  the mandatory requirement of informing  the accused about his right under Section 50(1) of the Act to be searched  in presence of a gazetted officer or a  Magistrate was  not complied with in this case and, therefore, it could not have been held that heroin was found from the possession of  the  appellant.   He  emphasized  that  the  independent witness to mahazar has not supported the prosecution and the only  evidence  on  the point of search and  seizure  is  of P.W.1.   He also drew our attention to the admission made by P.W.1 in her cross examination that she had not prepared any contemporaneous writing on the basis of which it can be said

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that  she  had informed the appellant about his right  under Section 50(1).  Both the Courts below, after due scrutiny of the  evidence of P.W.1, has found that P.W.1 was a  reliable witness  and  there was no reason to doubt her version  that she  had informed the appellant about his said right.  After carefully  scrutinizing the evidence of P.W.1 we are of  the opinion  that  it can safely be relied upon as it  does  not suffer  from any infirmity nor is there any good reason  for not accepting the same.  We have scrutinized the evidence of P.W.1with  more  care  because the  learned  counsel  stated before  us  that P.W.1 herself was subsequently involved  in the  offence  under  the Act and, therefore, she  cannot  be regarded  as  a  reliable witness.  After  the  hearing  was concluded but before the judgment could be delivered written submissions were given by the learned Advocate on Record and therein  also it is stated that P.W.1 along with her husband has  been involved in a case under the Act and that criminal proceedings  are  going  on against them.   Apart  from  the question of admissibility of her evidence we are of the view that  her  subsequent  involvement, if any,  in  a  criminal offence  cannot  affect  her  evidence in  this  case.   The incident involving the appellant had taken place in the year 1988  whereas the incident involving P.W.1 is stated to have taken  place  in the year 1998, that is after 10 years.   We therefore, do not think it fit to consider this new material while appreciating the evidence of P.W.1.

     It  was  next  contended  by   Mr.   Lalit  that  oral testimony  of  a  witness  alone   cannot  be  regarded   as sufficient  for establishing that the requirement of Section 50(1)  was  complied  with.  To support this  contention  he relied  upon  the decision of this court in T.P.  Razak  vs. State  of Kerala [1995 Supp.  (4) S.CC.  256].  In that case the  Sub-Inspector  of Police had searched the  accused  and recovered brown sugar from him.  He deposed before the Court that  before  the  accused  was searched he  had  asked  the appellant  whether  he wanted to be taken before a  Gazetted Officer  or a Magistrate for the purposes of search and that the  accused had replied that it was not necessary.  As this fact  was  not  reflected either in the F.I.R.   or  in  the seizure  mahazar and the independent witness to the  mahazar had  not  supported the version of the Sub-  Inspector  this Court held that the prosecution had failed to establish that there  was compliance with the provision of Section 50(1) of the Act.  As it appears from the judgment the trial Court in that  case  had  not considered it necessary  to  asses  the evidence of Sub-Inspector of Police since it was of the view that  it was not necessary to comply with the provisions  of Section  50(1).   The High Court had also proceeded  on  the basis  that  the  said  requirement   of  Section  50(1)  is directory  and, therefore, its non compliance was not  fatal to  the  prosecution case.  It was in the context  of  these facts  and  circumstances  that this Court held  :   "Having regard  to the fact that the FIR and Seizure Mahazar do  not mention  about  the appellant having been asked  before  the search  was  conducted  as to whether he would  like  to  be produced  before a Gazetted Officer or a Magistrate and  the further fact that P.W.1, the other independent witness, also does  not  state  about  this we are of the  view  that  the prosecution   has  failed  to   establish  that  there   was compliance  with  the  provisions of Section 50 of  the  Act before conducting the search of the appellant."

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     In  that case no clear finding was recorded  regarding credibility  of the Sub-Inspector of Police who was the only witness  on  the  point.  It was upon  appreciation  of  the evidence  led  in  that  case  that it  was  held  that  the prosecution   had  failed  to   establish  that  there   was compliance  with  the  provisions  of  Section  50(1)  while conducting the search of the accused.  We, therefore, cannot agree  with the submission of Mr.  Lalit that this Court  in that  case  has  laid down as a preposition of law  that  in absence  of  independent  evidence or any  other  supporting documentary  evidence, oral evidence of a witness conducting the search cannot be regarded as sufficient for establishing compliance with the requirement of Section 50(1).

     Moreover,  we  have,  in this case,  the  confessional statement   (Ext.    P-3)  made  by  the   appellant   which corroborates  the  evidence  of  P.W.1.   It  was,  however, submitted  by Mr.  Lalit that the Courts below had committed a  grave  error  in  relying   upon  the  said  confessional statement  and this Court also should not rely upon the same as  the  accused  had retracted the same  and  categorically stated  that  it  was  not  voluntarily  made  by  him.   He submitted  that the said statement was made while he was  in custody  and  as  stated by the appellant in  his  statement under  Section 313 Cr.P.C.  it was given by him under threat and  pressure.  P.W.1 had taken the appellant to her  office and  the confessional statement came to be recorded at about 8  P.M.,  no  doubt, while the appellant was in  custody  of P.W.1.   But that by itself cannot be regarded as sufficient to  hold  that  the confessional statement was made  by  the appellant  under  pressure or compulsion.  No complaint  was made  by  the  appellant  when he was  produced  before  the Magistrate  on  the next day nor he had made  any  complaint thereafter  till  his  statement came to be  recorded  under Section  313  Cr.P.C.  It was only during the trial  that  a suggestion  was  made  to P.W.1 and  subsequently  when  the appellant  gave  a statement under Section 313  Cr.P.C.   he stated  that  the  confessional statement was given  by  him under  threat and pressure.  Even while giving his statement under Section 313 Cr.P.C.  the appellant had not stated what was the nature of the threat given to him or in which manner the  pressure  was  brought  upon   him.   It  was  a  vague statement.   If  in such circumstances the trial Court  held that  the  confessional statement was voluntarily  made  and thought it safe to rely upon the same it cannot be said that it committed any error in doing so.  We are also of the view that  the  said  confessional  statement  was  made  by  the appellant voluntarily and, therefore, it can be used against him.   It was lastly contended by Mr.  Lalit that in view of inconsistency  regarding  identity of the sample the  Courts below  committed  a grave error in holding that  the  sample which  was  examined by the chemical analyst was a  part  of M.O.3,  the article which was seized from the appellant.  He drew  our attention to the evidence of Govinda (P.W.3),  who was  working as an Assistant in the Court of the Magistrate. He  has deposed that under the directions of the  Magistrate he  had  prepared two samples of 5 gms.  each out  of  M.O.3 which was before the Court and the said samples were sent by him  to  the  chemical  analyst for  analysis.   P.W.2,  the Chemical Analyst, is his evidence has stated that the sample which  he  had  received  from the Court  weighed  6.9  gms. Relying  upon this inconsistency as regards the weigh it was submitted  by  the  learned counsel that  benefit  of  doubt should  be given to the appellant as it cannot be said  with certainty that the sample which was examined by the chemical

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analyst was the same sample which was sent by the Court.  On 15.4.1998  P.W.1 had given an application to the  Magistrate for  drawing a sample from the brown powder which was seized from  the appellant and which was believed to be heroin, for analysis  by the Forensic Science Laboratory.  Granting this application the learned Magistrate directed Govinda (P.W.3), to  prepare  two samples of 5 gms.  each out of M.O.3.   The said  samples  were prepared as stated earlier in the  Court and  thereafter they were properly put in separate bags  and then  sealed  with  the  Court seal.  One  sample  was  then forwarded  with a covering letter which contained  necessary details  regarding  case number and the  sample.   Therefore even  though P.W.3 had stated that he had correctly  weighed the  two samples and there was no possibility of any mistake on  his part much weight can not be given to his evidence as in  the  forwarding letter prepared by him he had  mentioned that  the  weight  was  about 5 gms.  As  the  samples  were prepared  in  the  Court  in   presence  of  the   Presiding Magistrate  and  were  properly packed and  court  seal  was applied  on them and as the chemical analyst had also  found the  seal  intact  there is little room for doubt  that  the sample which was examined by the chemical analyst was a part of  M.O.3.  In our opinion, the Courts below did not  commit any  error in holding that what was found from the appellant was heroin.

     As  we  do  not  find  any substance  in  any  of  the contentions raised on behalf of the appellant this appeal is dismissed.