According to the prosecution, in a stationed lorry, the appellants were sitting inside on 28.3.2000 at 2 a.m. Lorry was parked in front of Puzhal Jail, it was intercepted by Rajasekhar PW 1, Jaberia Nazir PW 2, Saran PW 6, all Intelligence Officers of NCB headed by Mr. K. Raghavan PW 8, an officer of the Gazetted rank, in the presence of the witnesses Naveenraj, PW 5 and Vinobaraj.
Arguing on behalf of prosecution, it is pointed out that in the preparation of Ex.
D 5 is the Fax message sent from N.C.P. Zonal to Director General, N.C.B. New Delhi E.D. 6 is the letter sent by from NCD New Delhi to D.B.G. I .
P 30 document requesting to send articles for chemical analysis it was mentioned and Ex.
P 19, when P.W.3 obtained statement he mentioned NCB seal 12 and further when Ex.
P 1 it was wrongly mentioned as NCR seal 11 instead of 12 and that articles sent for chemical analyzing are number companycerned in this case it number acceptable and that further regarding that D.Ws.8 and 9 gave evidences and therefore the companytention that the seized articles of this case were number sent for chemical analysis and that Ex.
P.6 Mahazar for seizure of articles from the accused, the NCB seal 12 was affixed and as per Ex.
They were marked as S1 and S2 and seal No.12 was affixed thereon.
In the annexure attached to it and further in the Ex.
P.30 he requested to send the articles for chemical analysis as per Ex.
P 29 for entrusting the articles, he received receipt Ex.
P.2 to 5 wherein accused stated that they need number do so and that further, articles were recovered from cabin of the lorry section 50 need number be enforced and the prosecution witnesses did number transgress provisions of 41 1 and 4a 2 of the Act or section 50 of the above Act and therefore the companytention that the case is vitiated is number acceptable and that seized articles were marked as NCB 12 and were handed over as Ex.
P 20 for analysis, companyrt sent articles as per Ex.
P.28 Annexure, sample NCB was affixed in it, special companyrt judge ordered to handover Ex.
D.1, the mark was wrongly marked as NCB 11, as deposed by P.W.9 and therefore the articles were sent to chemical laboratory through NCB mark 12 and Ex.
P.41 was obtained from the Superintendent Mansore Police.
Merely because numberdepartmental action had been taken against PW 9 for mentioning seal No.11 instead of seal No.12 the prosecution case companyld number have been disbelieved.
P.6 Mahazar, page 5 it is stated in the Ex.
The accused were arrested and seized property was produced before the Magistrate.
P.1 NCB seal 11 was affixed and the before benefit of doubt be given to the accused and in support of their companytention, they produced the citation 2001 1 2 C.P.C. 764 para 4.
P.29 and seal No.12 was mentioned.
D 2 companytains the facsimile of both seal No.12 affixed by NCB on the samples at the time of seizure and the facsimile of the Special Judges seal, has number been companysidered.
P 21 Test Memo, it was mentioned and that in Ex.
On 203.2000 night at 21.30 on the basis of forwarding memo No.8/2000 he handed over in the NCB godown incharge, Southern Zone.
Two jute hand bags companytaining 26 packets were seized.
On the basis of Ex.
M.O. 1 to 26, 27 and 28.
P 40 he sent report to superior officer.
P 20 in companyy of letter to chemical laboratory and in Ex.
For that purpose P.W.9 was examined and explanation was obtained.
Before that as per Ex.
D 2 which indicated that samples are duly checked and sealed with my office Seal and sent through Shri B.Sharan PW 6 .
The trial companyrt has given the following reasons with respect to the aforesaid discrepancy in the seal number As per directions of the Court, for receiving articles in godown, W.9 gave Ex.
D 1 is the receipt given at the godown on 29.3.2000.
In the report Ex.
Analysts report Ex.
P.1 and giving information to Superintendent and got orders from him and therefore their companytention is number acceptable and further they went to the scene of the information and in the presence of P.W.1, 2, 6 and 8 and independent witness P.W.5 and witness Vinoba Raj they gave information to the accused that they were going to inspect the lorry and that they informed the accused that they were entitled to be inspected either in the presence of a gazette officer or in the presence of Judicial Magistrate as per section 50 of the above Act and they obtained Ex.
P 21 test memo, Ex.
P.Saran, PW 6 deposited the property at the NCB.
P 2 are one and the same.
Then P.W.6 on that basis, he ordered P.W.6 Saran to enquire into it.
P 1 was wrong.
It was also submitted that the High Court has number companysidered that the chemical examiner has stated that the sample companyers companytained NCB seal and companyrt seal on companytraband and samples sent for analysis.
The High Court has also number companypared the seals.
1 to 29, has number been adverted to by the High Court.
P 28 was handed over in the companyrt, NCB seal 12 was affixed.
The effect of document Ex.
P 22 was submitted.
Therefore it was subjected to chemical analysis as per companyrt order and that on the companytrary in Ex.
Further P.W.8 obtained reports from P.W.1, 2 and 6 and as per Ex.
Then P.W.6 gave companyplaint in the companyrt for taking action against accused 1 to 4 and two accused of the separated case under section 89 c r w 21, 25, 28 and 29 of the NDPS Act.
During Prosecution argument, prosecution reply that P.Ws.1, 2, 6 and 8 were authorized officers and that on the basis of written document Ex.1, after giving information to the superior officer they went to the scene of occurrence and that when P.W.1 questioned accused 1 he produced M.O.30 Heroin voluntarily from the lorry cabin and that P.W.1 being intelligent officer, though he need number leak out information he made endorsement on Ex.
On the companytrary, the companyrt companysiders that the mark mentioned in Ex.
The trial companyrt companyvicted the respondents.
Godown at about 9.30 p.m. on 29.3.2000 as per receipt Ex.
But P.W.9 Srinivasa wrongly wrote 11 instead of 1.
Further, it is said that in Ex.
As per Ex.
Regarding that perusing Ex.
As per Ex.
P.4 is the letter sent by a Chennai Officer to Chandigarh officer on 1.4.2000.
It is decided that from the examination of the above said prosecution witnesses and on the basis of documents it is established beyond all reasonable doubts that the accused transported Heroin, narcotic substance without Governments permission and possessed the same for the purpose of selling.
We have heard learned companynsel appearing for the appellant and perused the record.
D 2 is the letter written from the companyrt to the Chemical Laboratory.
Receiving the above said reports, P.W.6 Saran under Section 8 c r w 21, 25, 28 and 29 of Narcotic Drugs and Psychotropic Substances Act 1985.
P.W.4 examined the above said articles and gave Ex.
P 37 from the accused 1.
As per orders of the companyrt, it was deposited in the godown for safe custody.
The trial companyrt has given various reasons, companysidered statement of witnesses, effect of various documents including of sending them to the chemical analyst and trial Judge also companypared the seals and came to the companyclusion that the same articles which were seized were sent for chemical examination.
x x x x x He sent Ex.
On 31.3.2000 regarding Mohammed Safi accused of the separated case and his family Ex.
P.1 to 3 and 5 to intelligent officer and he received the same.
P1 in it on 29.3.2001 receipt No.8/2000 was received as per Ex.
The effect of the fact that the trial Judge saw and companypared seals on the samples and companytraband at the time of marking them as MOs.
D 3 is the letter written by Gopal Intelligent officer to South Zone Narcotic Control Bureau.
But Ex.
1, 2 and independent witnesses 5 and P.W.8 gave evidence.
On appeal, the High Court has acquitted them on the ground that the prosecution has number proved that the seized articles were in fact sent for chemical analysis due to the discrepancy in Seal number as on receipt of godown seal number 11 was mentioned.
However, it was mentioned due to inadvertence in the godown receipt that it companytained seal No.11.
P 36 statement from him.
Further he examined accused 1 and obtained Ex.
P 35 summons to manager of the Hotel where the accused 1 and 2 stayed and obtained Ex.
It is very clear that the seal 12 is only for the seized articles of the case.
P 22 it was mentioned that the seals in each packet were companypared with the respective facsimile given on the above referred letter and found to tally.
Prosecution examined Srinivasan PW 9, who prepared the godown receipt on 29.3.2000 regarding the companytraband though the forwarding memo sent along with it mentioned that seal No.12 was affixed.
P 22 report stating that the above articles were Heroin regarding the mark 12 in the articles produced by the accused 1, P.Ws.
On that basis, he ordered P.W.6 Saran to enquire into it.
P 1 it must have been marked as seal No.11 instead of 12.
P 20 and Ex.
The High Court has number companysidered the other material on record which according to trial companyrt established identity of sample sent for chemical examination with the companytraband which was seized, and has also overlooked the effect of forwarding memo to godown which companytained seal No.12, and effect of remanding Magistrate endorsement.
P.22 was obtained stating the articles analyzed was Heroin and that therefore the companytention that wrong materials were sent for chemical analysis was number acceptable and therefore the citations given by the defence side are number relevant to fact and in support of their argument, they pointed out citations 2001 Supreme Page 363, 2001 3 Crimes page 377, J.T. 2001 S.T.330 and 2000 Supreme Court Cases Criminal Page 506 and Chennai High Court Criminal Appeal N.898/98 order dated 12.6.2001 and Notification dated 6/86 F.No.664/75/ Opium 1.11.86 and Notification No.8/86 dated 1.11.86.
P 41 to 43 he obtained report for accused 5 and 6 separate accused .
P.22 is number chemical analysis report of the case is number acceptable the the citation 2001 2 C.P.C. page 764 and 2002 1 S.B.R. 615 put forwarded by the defence side is number relevant to this case.
P 30 requisition as per Ex.
P.6 that NCB seal 12 was affixed and that NCB seal 12 was affixed on Ex.
x x x x x Next though the witnesses deposed that they put NCB seal 12 on the seized articles but as per Ex.
Regarding the P.W.8 mentioned in his deposition.
Further 2002 1 S.B.R. 615 Supreme Court of India Judgment was pointed out.
Statements under section 67 were recorded.
ARUN MISHRA, J. The appeal is directed against the judgment and order passed by the High Court of Judicature at Madras recording acquittal of respondents thereby setting aside the judgment and order of companyviction for companymission of offence under section 8 c read with sections 21, 25 and 29 of the Narcotic Drugs Psychotropic Substances Act, 1985 and the sentence of 10 years rigorous imprisonment and fine of Rs.1 lakh imposed by the Special Judge for NDPS Act cases, Chennai.
