- (1.) The accused, who stood charged and tried for the commission of the offences under Sections 8(c) read with 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985, (in short 'NDPS Act') and suffered a conviction and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.25,000/- with a default sentence of rigorous imprisonment for six months, vide judgment dated 31.07.2007, passed in C.C.No.50 of 2001, by the learned Special District and Sessions Judge, (NDPS Act Cases), Madurai, is the appellant.
(2.) The facts leading to the filing of this appeal, are briefly narrated, as follows: 2.1. P.W.5 is the Sub-Inspector of Police attached to the respondent Police Station and he received an information through the informant on 13.00 hours on 19.10.2000, with regard to the transportation of ganja. P.W.5 reduced it into writing, marked as Ex.P.1 and has sent it to the immediate superior in compliance of Section 42(2) of the Narcotic Drugs and Psychotropic Substances Act, 1985, (in short 'NDPS Act'), marked as Ex.P.12 and took the informant along with the police party and reached Aundipatty bus stand. 2.2. P.W.5 requested the independent witnesses, namely, Pandi, son of Sivamani and Gopal, son of Velu, to act as independent witnesses and they were not inclined to do so. At about 16.00 hours, on that day, the informant identified the persons, namely, Chellappa, son of Andi, Thangam, son of Singamuthu and Andithevar, son of Paramasamy and all of them were carrying the bags. The police party chased them and surrounded them and P.W.5 has introduced himself as well as other members of the police party and in the presence of P.W.4 - Head Constable and Mahendran - Police Constable, informed all the accused of their right to be searched in the presence of a Judicial Magistrate or a Gazetted Officer and they told him that he himself can search and in this regard, a consent letter was also obtained, signed by all the accused, marked as Ex.P.1. The search of the bags carried by all the accused, revealed that each of them carried 5 Kg. of ganja and it was done without any permission or licence. 2.3. P.W.5 has drawn the samples from each of the pockets and assigned numbers as S.1 to S.6 on the seals and the balance contraband was assigned numbers as B.1 to B.3 and was recovered under a cover of mahazar, marked as Ex.P.2. The relatives of the accused were also informed of their arrest and all the accused were brought to the Police Station and thereafter, the cases in Cr.Nos.237, 238 and 239 of 2000, came to be registered for the commission of the offence under Section 20(b)(i) of the NDPS Act. The events that took place were also reduced into writing by P.W.5 and a report was sent to the immediate superior in compliance of Section 57 of the NDPS Act. P.W.4 also took necessary steps to send the samples for chemical analysis. The printed F.I.R was marked as Ex.P.14. 2.4. P.W.6, who took up the investigation, has examined the witnesses and after receipt of the chemical analysis report, marked as Ex.P.7, filed the report charging the appellant/accused for the commission of the offences under Sections 8(c) read with 20(b)(i) of the NDPS Act and filed the charge sheet on the file of the Court of the Special District and Sessions Judge, (NDPS Act Cases), Madurai, which took it on file in C.C.No. 50 of 2001. 2.5. The trial Court has issued the summons to the appellant/accused and on his appearance, furnished with him the copies of documents under Section 207 Cr.P.C. and after granting sufficient time, questioned him and framed the charges under Sections 8(c) read with 20(b)(i) of the NDPS Act. The appellant/accused pleaded not guilty to the charges framed against him. 2.6. The prosecution in order to sustain their case, examined P.W.1 to P.W.6 and marked Exs.P.1 to P.16 . 2.7. The appellant/accused was questioned under Section 313(1)(b) of the Code of Criminal Procedure, 1973, with regard to the incriminating circumstances made out against him in the evidence tendered by the prosecution and he denied it as false. 2.8. On behalf of the accused, no oral evidence was let in, however, Ex.D.1 - Form 95 was marked. 2.9. The trial Court on consideration of the oral and documentary evidence, has convicted and imposed the sentences as stated above. 2.10. Aggrieved by the conviction and sentence passed by the trial Court, the appellant/accused has filed the present Criminal Appeal.
(3.) The learned Counsel for the appellant has drawn the attention of this Court to the testimonies of P.W.4 and P.W.5 and would submit that though the samples have been drawn on seizure of the contraband, the pre-seizure formalities have not been properly complied with and thereby, a doubt has been created as to whether the contraband has been seized at all and the samples drawn from the contraband have been sent for chemical analysis.;