R.MALA,J. - (1.) THE Criminal Appeal arises out of the judgment of conviction and sentence imposed on the appellant/A.1 in C.C.No.250 of 1996, dated 20.12.2002, on the file of the Special Court under NDPS Act, Chennai. The appellant/A.1 was convicted for the offence under Section 8(c) read with Section 21(b) of the NDPS Act and sentenced to undergo two years' rigorous imprisonment and to pay a fine of Rs.5,000/ -, in default, to undergo six months rigorous imprisonment.
(2.) THE case of the prosecution is as follows: (a) On 27.9.1996, P.W.4 Martin, who was working as Sub -Inspector of Police at NIBCID and P.W.3 Mani was working as Head Constable in the same Police Station. When P.W.4 was in his Station at about 16.30 hours, he received an information that the accused were selling heroin at the junction of Chintadripet Market Road and Venkatagramani Street and the same was reduced into writing under Ex.P -8 and submitted to the Inspector of Police. He gave information to R.1 Mambalam Police Station to send the Woman Cons -table for the above said purpose. On that basis, P.W.2 Andal, Woman Constable went to NIBCID at about 16.40 hours and reported before P.W.4 Martin, Sub -Inspector of Police. (b) Then P.W.4 Sub -Inspector of Police left the office along with P.Ws.2 and 3 at about 17.15 hours and reached the junction of Chintadripet Market Road and Venkatagramani Street. At about 17.30 hours, the accused, coming from east to west, were identified by the informer of P.W.4 and were intercepted by P.W.4 with his party. He informed them his identity and the information. He also informed them about the rights of the accused required to be searched in the presence of Gazetted Officer or Magistrate, for which they told him that they could be searched by P.W.4 himself and the same was reduced into writing under Exs.P -3 and P -4 and obtained the thumb impression of A -1 and the signature of A -2. He also signed in it after obtaining the signature of one Balu, P.Ws.2 and 3. (c) He searched A -1 in the presence of P.Ws.2 and 3 and one Balu and recovered a polythene cover from his shirt pocket in which he found 44 small magazine paper packets. On opening, he found heroin in it. He also recovered M.O.3 Rs.80/ - from his lungi fold. He weighed the paper packets which are found to be 10 grams. (d) Then, he searched A -2 with the help of P.W.2 Andal, Woman Police Constable and recovered a plastic cover from her inner side of her jacket. On opening, he found 43 small magazine paper packets, in which heroin was found. He weighed the same and found it to be 10 grams. He also recovered M.O.4 Rs.100/ - through P.W.2 from her saree fold. (e) Then, he kept the paper packets in the same polythene cover and kept it in a brown colour cover and tied with thread and seal was affixed. Paper slip was affixed and the same was attested by witnesses. (f) He recovered the alleged contraband in the presence of attesting witnesses under Ex.P -5 mahazar. He informed the grounds of arrest under Exs.P -6 and P -7 arrest memos and arrested the accused at about 18.15 hours. (g) He brought the accused along with the contraband at about 18.45 hours and registered a case in Cr.No.22 of 1996 for the offence under Section 8(c) read with Section 21 of the NDPS Act and prepared Ex.P -9 F.I.R. He handed over the accused along with the contraband to the Inspector of Police along with Ex.P -10 (57 report). (h) On 7.10.1996, P.W.1 Ezhilarasi was working as Chemical Analyst Gr.I at Forensic Department, Chennai. Her office has received two paper packets under Ex.P -1 letter of the Special Court pertaining to Cr.No.22 of 1996 of NIBCID. She gave Sl. Nos. 1 and 2 for the packets. On opening, she found 43 and 44 small packets respectively. On again opening, she found brown colour powder, which was analysed by her and found "di -actyle morphine" in it, which is commonly known as "heroin". She sent the report Ex.P -2 along with M.Os.1 and 2 empty paper packets. (i) On 27.9.1996, P.W.5 was working as Inspector of Police in NIBCID. He received the documents pertaining to Crime No.22 of 1996 from P.W.4 Martin, Sub -Inspector of Police and took further investigation. He examined the witnesses Balu, P.W.2 Andal, Woman Constable, P.W.3 Mani, the then Head Cons -table, P.W.4 Martin, Sub -Inspector of Police and one Thiyagarajan and recorded their statements. (j) On 28.9.1996, he sent the accused along with the contraband for remand and gave requisition Ex.P -11 to send the con -traband for chemical analysis. After receiving the copy of Ex.P -2 chemical report, he completed the investigation and filed a final report against the accused on 24.12.1996 for the offence under Section 8(c) read with Section 21 of the NDPS Act.
(3.) THE trial Court, after examining P.Ws.1 to 5, Exs.P -1 to P -11 and M.Os.1 to 4, came to the conclusion that both the accused are guilty under Section 8(c) read with Section 21(b) of the NDPS Act and sentenced them to undergo two years' rigorous imprisonment and imposed a fine of Rs.5,000/ -, in default, to undergo six months' rigorous imprisonment. Against that, A -1 has come forward with this Criminal Appeal. Challenging the conviction and sentence passed by the trial Court, learned counsel for the appellant -A.1 would put forth only three limb of arguments, stating that the properties seized do not tally with the properties sent to the Forensic Sciences Laboratory and that the person who transported the same is one Navaneethakrishna, who was not examined before Court. Learned counsel for the appellant/A.1 culled out some portions of the evidence of P.W.1, the Scientific Assistant Gr.I of the Forensic Sciences Laboratory and submitted that the material objects do not contain the Police seal and it contained only the Court's seal. Form 95 has also not been produced before Court. So, there is no evidence to show that after the seizure of material objects, it was kept in safe custody and that has been sent to the Forensic Sciences Laboratory for testing. Unless that is established, the conviction of the appellant/A.1 in a grave offence like the present one, cannot be sustained. Learned counsel also relied upon a decision of this Court reported in 2002 (1) M.W.N. (Cr.) 118, Ananthi v. State rep. by N.I.B.C.I.D., Trichy, and prayed for acquittal of the appellant/A.1.;