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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 ..... es. Hence, the statements of both witnesses are not admissible in evidence. Admittedly, PW2 drew two samples from each of the packets of the contraband found in the hotel room and kept them in two separate plastic covers. These covers were sealed and the remaining contraband was also sealed. Thus, the prosecution claims that the samples were prepared even before the packets were sent to the Station House Officer. The submission of the learned senior counsel appearing for the appellant in Criminal Appeal 451 of 2011 was that a grave suspicion is created about the prosecution s case as this action by the PW2, was contrary to Section 52A of NDPS Act - 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 contraband. It cannot be said that the contraband was found in the custody of accused no.1. At the highest, it was found in the room occupied by accused no.4. It is noted here that accused no.4 has been convicted by the High Court only for the offence punishable under Section 30 of the ND ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11) 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 accused no.3. At the outset, he pointed out that till he was released on bail, accused no.3 had undergone sentence for a period of eight years nine months and twelve days. He submitted that both the Courts have relied upon the confessional statement of the appellant recorded under Section 67 of the NDPS Act before the officers of the NCB who are invested with the powers under Section 53 of the NDPS Act. Relying upon a decision of this Court in the case of Tofan Singh v. State of Tamil Nadu (2021) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted 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, no incriminating material could be found against accused no.1 as it was accused no.4 who had booked the room in his name from which, the contraband was allegedly recovered. He would, therefore, submit that the Courts ought to have acquitted accused no.1. 6. The learned counsel submitted that adverse inference will have to be drawn against the prosecution for not examining the independent witnesses though they were available. He submitted that the accused have lost the opportun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igence 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 independent witnesses namely, Devendran and Prabhu. According to the prosecution s case, after the door was knocked on, it was opened and it was found that all the four accused were present there. When PW2 questioned whether they were in possession of any narcotic drug, the first accused took out a blue coloured rexine bag which, according to the prosecution, contained packets of a total of 5.067 kilograms of heroin. PW2 seized the heroine and took two samp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 relation to a proceeding before a court. 14. A finding was recorded by the High Court that the prosecution has not proved that the witnesses are dead or cannot be found or are incapable of giving evidence or kept out of the way of the accused or their presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable. These findings are based on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 contraband. 17. Even according to the prosecution s case, as can be seen from the version of PW2, accused no.1 (appellant in Criminal Appeal No.1185 of 2011) was staying in room no.213 of Himalaya Lodge, Triplicane, Chennai. He was to receive 5 kilograms of heroin from accused no.2 and accused no.3 (appellant in Criminal Appeal no.451 of 2011). Accused nos.2 and 3, according to the case of the prosecution, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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