Ramesh v. State rep by its Inspector of Police, NIB, CID, Salem

3. The case of the prosecution in brief is as follows:i) P.W.1 was the Inspector of police, ProhibitionEnforcement Wing, Dharmapuri during the year 2004. P.W.2 was thethen Sub Inspector of Police of the said Wing. One M.Devendran(Head Constable No.1622), Police Constable Vivekanandan(P.C.No.1724) and another Constable Selvaraj (P.C.No.271) werealso attached to the said Police Station. On 11.09.2004, atabout 7.00 a.m. P.Ws 1 and 2 along with the above stated PoliceConstables were engaged in vehicle check up on Dharmapuri to Salemroad at Elagiri road junction. At that time, a jeep bearingregistration No.TN 20 D 919 was found proceeding towards Salemfrom Dharmapuri i.e. from North towards South. The registrationnumber of the vehicle was not displayed on the front side of thejeep. P.W.1, with the help of others, intercepted the vehicleand as soon as the vehicle came to a halt, he caught hold thedriver of the vehicle. Another person, who was also in the jeepfled away from the scene. From the information furnished by thedriver of the vehicle, P.W.1 came to know that his name is RameshS/O.Ramiah (appellant). The appellant told him that the person whoescaped from the scene was one Chokkan @ Chokkanathan (A2) P.W.1was given to understand that Ganja was being stealthilytransported in the jeep. Therefore, P.W.1 decided to make asearch. Before doing the search, P.W.1 informed the appellantthat he had the right to have search conducted in the presence ofeither a Gazetted Officer or a Judicial magistrate. Suchinformation given in writing by P.W.1 is Ex.P.1. The appellantacknowledged the same. Thereafter, the appellant informed P.W.1that it was not necessary for search in the presence of a GazettedOfficer or a Judicial Magistrate and instead, P.W.1 himself cando the same. Thereafter, P.W.1 along with others searched thejeep. He found 13 gunny bags in the jeep. He unloaded the samefrom the jeep. On opening the gunny bags, he found that all thebags contained Ganja mixed with seeds. From out of the smell, hecould perceive that it was Ganja. with the help of a scale, whenhe weighed the bags, he found the same weighing 85Kgs, 85 Kgs, 60Kgs, 10 Kgs, 30 Kgs, 25 Kgs, 17 Kgs, 22Kgs, 22kgs, 22 Kgs, 22 Kgs,22 Kgs and 20Kgs respectively and the total weight was 442kilograms. He drew two representative samples from each gunnybag. Likewise, he took 26 pockets of samples. P.W.1 tied thepockets with twine thread and stitched the Ganja bags. Then heaffixed seals on the sample pockets and gunny bags. He obtainedthe signature of the appellant and the witnesses on slips andpasted the same on the sample pockets. He seized the Ganja bagsand the jeep with a spare tyre under a mahazar-Ex.P.2. M.Os. 1 to13 are the Ganja bags seized from the possession of the appellant.M.Os.14 to 39 are the sample pockets, of which, M.Os.27 to 39 arethe sample pockets returned by the Forensic lab after examination.M.O.40 is the jeep. M.O.49 is the tyre. Then he recorded thestatement of the accused. The accused was arrested and arrest memo https://hcservices.ecourts.gov.in/hcservices/ was served on him under Ex.P.4. Then he took the accused andseized the articles to Prohibition Enforcement Wing, PoliceStation. P.W.2 and other constables also accompanied him. Then heregistered a case at 10.00a.m. in Crime No.2284 of 2002 underSections 8(c) read with 20(b)(ii)(c) and Section2 5 of N.D.P.S.Act. he forwarded the First Information Report to the Courtthrough a constable. It was received by the learned Magistrate at10.30 a.m on 11.09.2002. Then he forwarded a report as requiredunder Section 57 of the N.D.P.S Act. to the Deputy Superintendentof Police Dharmapuri under Ex.P.6. The arrest of the petitionerwas intimated to his father by means of a telegram under Ex.P.7. ii) P.W.6, was then the then Inspector of Police, NorcoticWing at Salem. He took up the investigation of the case on20.12.2004. He examined the person in whose name the registrationCertificate of the Jeep then stood and recorded his statement. Heexamined P.Ws.1 and 2 and few more witnesses and recorded theirstatements. A request was made by the Police to the trial Courtto forward M.os. 27 to 39 for chemical examinations. P.W.5,chemical examiner verified the same and found that seals wereintact. Then he examined the same and found that the contents ofthe pockets were Ganja. Ex.P.14 is the report of the Chemicalexaminer. P.W.6, after getting the analysis report and afterperusing the record filed a final report against both the accusedfor offences under Sections 8(c) read with 20(b)(ii)(c) ofN.D.P.S Act.4. On considering the above materials, the trial Court framedcharges against the accused under Sections 8(c) read with 20(b)(ii)(c) of N.D.P.S Act. When questioned, the appellant denied thecharges. Therefore, he was put on trial.5. During trial of the case, on the side of the prosecutionas many as six witnesses were examined as P.Ws 1 to 6 and 14documents were exhibited as Ex.P.1 to P.14. When the appellant wasquestioned under 313 Cr.P.C., he denied the incriminatingmaterials and claimed them to be false. The second accusedexamined D.W.1 , in order to prove alibi. The appellant examinedD.W.2, to speak about the fact that the appellant had gone outfrom his workshop on 10.09.2004 itself for the purpose ofrepairing a jeep. Later on, according to D.W.2, he came to knowfrom the sister of the accused that he was involved in a Ganjacase. Two documents relating to the ownership of the jeep weremarked as EXs.D1 and D.2. on the side of the accused.6. Having considered all the above materials, the trialCourt acquitted the second accused but convicted the appellantand imposed appropriate punishment. It is against the same, thisappeal has been preferred. https://hcservices.ecourts.gov.in/hcservices/

7. P.W.2 has also spoken to about the entire facts relatingto the interception of the vehicle, arrest of the appellant,seizure of the contraband etc. His evidence fully supports theevidence of P.W.1. P.W.3, who is the Regional Transport Officer,has spoken to about the ownership of the jeep. According to him,the jeep stood in the name of one R.Gunaseelan. P.W.4 was examinedto speak about the fact that the said jeep was purchased by thesecond accused, but R.C. was not changed in his name. But, P.W.4has turned hostile and did not support the case of theprosecution.P.W.5 is the analyst who has spoken to about hisreport. P.W.6 is the Investigating Officer who has spoken to aboutthe investigation done by him and the charge sheet laid.8. The learned counsel for the appellant would assail theconviction and sentence on the following grounds.i. The evidence of P.Ws 1 and 2 who are thepolice Officials cannot be either undoubted oracted upon for want of corroboration fromindependent witnesses.ii. The mandatory provision contained inSection 50 of the N.D.P.S Act has not beenfollowed, which vitiates the entire conviction.Further Section 42 of the Act has not beenfollowed;iii. The report under Section 57 of the Act(Ex.P.6) was sent with enormous delay, whichcreates doubt in the case of the prosecution;iv. The contraband allegedly possessed by theaccused was also sent belatedly to the Court, forwhich there is no explanation, which also createsdoubt in the case of the prosecution;v. The First Information Report cannot bebelieved as there are materials to establish thatit is a concocted document;vi. Section 52 of the Act has not beenfollowed by P.W.1 which creates doubt in the caseof the prosecution;vii. P.W.1 had no power to investigate thecrime since he was then working only in ProhibitionEnforcement Wing of the police Station, which isear marked for investigating exclusively, thecases under the Tamil Nadu Prohibition Act.viii. Assuming that the contraband was seizedfrom the jeep, the accused cannot be stated tohave conscious possession of the contraband; asthere are indications that the contraband couldhave been kept in the jeep by A.2 or by somebodywithout the knowledge of the appellant.ix. Purity test to know the exact weight of https://hcservices.ecourts.gov.in/hcservices/ Ganja has not been done and therefore, it cannotbe stated that Ganja allegedly seized from theappellant is commercial quantity. At the most, itcan be construed to be between small quantity andcommercial quantity and therefore, the punishmentimposed is not correct. 9. In order to substantiate the above contentions, thelearned counsel has taken me through the evidence both oral anddocumentary, and has also cited various judgments of the Hon'bleSupreme Court as well as this Court about which, I will makereference at the appropriate places of this judgment.10. Per contra, the learned Additional Public prosecutorwould make the following submissions:i. Though the occurrence was in a public place,there is no evidence that there were General Publicavailable and so, non examination of independentwitnesses has not in any manner created dent in thecase of the prosecution;ii. Simply because P.Ws 1 and 2 are policeofficials, their evidences cannot be straightawayrejected and their evidences require fullacceptance since no material has been elicitedduring cross examination to discredit theirevidence; iii. The mandatory provision contained inSection 50 of the N.D.P.S Act is not at allapplicable in respect of the search made in thevehicle as the said provision is applicable onlyto personal search;iv. There is no delay in forwarding thereport under Section 57 of the Act and the delaypointed out by the learned counsel for theappellant is immaterial and the same would not inany manner affect the case of the prosecution;v. Section 52 is not applicable to the facts ofthis case;vi. Similarly, there is no delay in forwardingthe contraband to the Court and the delay pointedout by the learned counsel for the appellant, doesnot in any manner create doubt in the case of theprosecution;vii. P.W.1, being a police officer is fullyempowered to investigate the case and it isimmaterial as to whether he is attached toProhibition Enforcement Wing or some other Wing ofPolice Department;viii. Section 42 of the Act is not at all https://hcservices.ecourts.gov.in/hcservices/ applicable to the facts of the present case becausethe requirements of Section 42 are expected to becomplied with only in the case where the policeofficer acts either on his personal knowledge oron any information that such an offence is beingcommitted; ix. First Information Report has been enteredin the book specified by the government andtherefore, it cannot be stated to be a concocteddocument;x. Going by the huge quantity of the contrabandkept in the jeep and also the fact that thepetitioner was the driver of the jeep, it cannot bestated at any stretch of imagination that he didnot have knowledge and therefore, the contentionthat the possession was not conscious possession isonly fallacious;xi. Purity test in respect of Ganja is not atall required as held by the Hon'ble Supreme Courtin 2009 (2) SCC 26. Therefore, the quantity ofcontraband seized from the appellant is acommercial quantity and thus the lower Court isright in appropriately punishing the accused.11. I have considered the rival submissions. Before going toanalyse the facts involved in this case, it would be worthwhile torefer to the judgment of the Hon’ble Supreme Court in Raju PremjiVS Customs NER Shillong Unit reported in 2009 (3) Crimes 109 (SC)on which much reliance has been placed by the learned counsel forthe appellant. In paragraph 7 of the said judgment, the Hon’bleSupreme Court has recorded a word of caution as follows: ” The Act provides for stringent punishment.Where a statue provides for stringent penalprovisions including the matter relating to grant ofa bail, the conditions precedent therefor must bescrupulously complied with” The above observation came to be made by the Hon’ble Supreme Courtwhile dealing with a criminal appeal relating to the N.D.P.S Act.Keeping the above caution in mind, let me analyse the facts.12. P.Ws.1 to 3 claim to be the eye witnesses. According tothem, while they were engaged in vehicle check up, a jeep drivenby the appellant was intercepted and the same was found carryingGanja. The foremost contention of the learned counsel for theappellant is that the evidence of P.Ws 1 to 3 cannot be made thefoundation for conviction as they happened to be police officialswho are interested in the prosecution case, more so, becausethere has been no independent witnesses examined. In this regard,I have to state that it is not the rule of evidence that theevidence of police officials are to be always doubted and https://hcservices.ecourts.gov.in/hcservices/ invariably rejected. It all depends on the facts and circumstancesof each case. If the Court finds that the evidences of the policeofficials inspire the confidence of the Court, absolutely thereis no legal bar to act upon such testimonies of police officialseven in the absence of any other independent witness tocorroborate. In the case on hand, I have carefully gone throughthe entire evidence of P.Ws 1 to 3 where nothing has beenelicited during cross examination to discredit theevidences of any of these witnesses. Though they were subjected toa lengthy and incisive cross examination by the defence counsel,they have withstood the same. As I have already stated nothing hasbeen brought on record which would create any doubt in theversion of their evidences. In this context, I have to refer tothe judgment of the Hon’ble Supreme Court in Pradeep NarayanMadgaonkar and others VS State of Maharashtra reported in 1995Supreme Court Cases (Cri) 708 wherein the Hon’ble Supreme Courthas made the following observation in respect of the evidence ofpolice officials:"Indeed, the evidence of the officials (police)witnesses cannot be discarded merely on the groundthat they belong to the police force and are, eitherinterested in the investigating or the prosecutingagency but prudence dictates that their evidenceneeds to be subjected to strict scrutiny and as faras possible corroboration of their evidence inmaterial particulars should be sought. Their desireto see the success of the case based on theirinvestigation, requires greater care to appreciatetheir testimony."13. Of course, it is true that no independent witness hasbeen examined to corroborate the evidences of P.Ws 1 to 3. Thelearned counsel for the petitioner would submit that since theoccurrence was in a public place, independent witness would havebeen certainly available and therefore, failure to examine any oneof the independent witnesses is fatal to the case of theprosecution. In this regard, I have to state that it is not inevidence that though the jeep was intercepted at a public place,any independent witness was available anywhere near the place ofoccurrence at the crucial time. Simply because the vehicle wasintercepted at a public place, it cannot be automatically presumedthat there would have been independent witnesses. A perusal ofExs.P.9 and P.10 ( Observation mahazar and sketch) would go toshow that there were no habitations anywhere near the place ofoccurrence. There were only a Flour and Oil Mill and a schoolsituated somewhere near the place of occurrence. These twodocuments were prepared by P.W.1 and proved through him. There wasno cross examination in respect of these two documents disputingthe correctness of the observations in the documents. However, it https://hcservices.ecourts.gov.in/hcservices/ is in evidence of P.W.1 during cross examination as though hecalled independent witnesses but they declined. Of course, P.W.1has not so recorded in the case diary about the same. It is, tosome extent, a flaw. But it cannot be forgotten that none can becompelled to be a witness. In such circumstances, when there wasno independent witness either available or coming forward, nonexamination of such independent witnesses is quite natural andtherefore, it cannot be a ground to doubt the evidence of P.Ws 1to 3.14. The learned counsel would nextly submit that as providedunder Section 100(4) Cr.P.C P.W.1 ought to have taken to theplace of occurrence two independent witnesses and the failure tofollow the said provision is again fatal to the case of theprosecution. The learned Additional Public Prosecutor wouldhowever submit that Section 100 (4) of the Code is not at allapplicable to the facts of the present case as the said provisionwould come into operation only in a case where the policeofficer receives either reliable information or has got reason tobelieve that an offence is committed. It is in those circumstancesonly, before proceeding to the place of occurrence, he is requiredto take two independent witnesses, he added. 15. The learned counsel for the appellant would howeversubmit that in view of Section 51 of the Act, which declares thatthe provisions of the Code of Criminal Procedure 1983 shall applyto all searches and seizures made under N.D.P.S Act, the policeofficer ought to have followed Section 100(4) Cr.P.C. In thisregard, I may refer to Section 49 of the N.D.P.S Act whichempowers a police officer to stop the vehicle and to search thesame. Section 49 reads as follows: "Power to stop and search conveyance: Anyofficer authorized under Section 42, may, if he hasreason to suspect that any animal; or conveyanceis, or is about to be, used for the transport of anynarcotic drug or psychotropic substance, (orcontrolled substance), in respect of which hesuspects that any provision of this Act has been ,or is being, or is about to be, contravened at anytime, stop such animal or conveyance, or, in thecase of an aircraft, compel it to land and :a) rummage and search the conveyance or partthereof;b) examine and search any goods on the animalor in the conveyance;c) if it becomes necessary to stop the animalor the conveyance, he may use all lawful means forstopping it, and where such means fail, the animalor the conveyance may be fired upon." https://hcservices.ecourts.gov.in/hcservices/

16. A close scrutiny of Section 49 of the N.D.P.S Act wouldshow that the said provision alone is applicable to the facts ofthe present case and not Section 100(4) Cr.P.C. As rightly pointedout by the learned Additional Public Prosecutor, Section 100 (4)Cr.P.C. relates only to search in closed places. Therefore, thecontention of the learned counsel for the appellant that thepolice officer ought to have followed Section 100(4) Cr.P.C isrejected. As provided under Section 49 of the Act, P.W.1 isempowered to stop the vehicle and to search and so the search andseizure conducted by him cannot be stated to be illegal orirregular.17. Nextly, the learned counsel for the appellant wouldcontend that Section 50 of the N.D.P.S Act has not been followedand on this ground itself, the appellant is entitled foracquittal. There can be no doubt that Section 50 of the Act ismandatory and failure to follow the same itself is a ground foracquittal. But the learned Additional Public Prosecutor wouldsubmit that Section 50 of the Act is applicable only in respect ofsearches of persons and the same is not applicable to search ofthe vehicles. This legal position does not require a great dealof discussion as the law has been well settled by the Hon’bleSupreme Court. In this regard, a reference may be made usefully tothe following judgments of the Hon’ble Supreme Court. (i) State of Punjab VS Balbir Singh and others reported in(2004) 8 Supreme Court Cases 702:"Sections 42 and 43, therefore, contemplate twodifferent situations. Section 42 contemplatesentry into and search of any building, conveyanceor enclosed place, while Section 43 contemplatesa seizure made in any public place or in transit.If seizure is made under Section 42 between sunsetand sunrise, the requirement of the provisothereto has to be complied with. There is no suchproviso in Section 43 of the Act and, therefore,it is obvious that if a public conveyance issearched in a public place, the officer making thesearch is not required to record his satisfactionas contemplated by the proviso to Section 42 ofthe NDPS Act for searching the vehicle betweensunset and sunrise.We, therefore, hold that in the facts of thiscase Section 50 of the NDPS Act was notapplicable since the contraband was recovered onsearch of a vehicle and there was no personalsearch involved. The requirement of the provisoto Section 42 was also not required to becomplied with since the recovery was made at a https://hcservices.ecourts.gov.in/hcservices/ public place and was, therefore, governed bySection 43 of the Act which did not lay down anysuch requirement. Additionally, since theSuperintendent of police was a member of thesearch party and was exercising his authorityunder Section 41 of the NDPS Act, the proviso toSection 42 was not attracted." (ii) State of Haryana VS Jarnail Singh and others reported in(2004) 5 Supreme Court Cases 188: "The same view has been reiterated in severaldecisions of this Court including Kalema TumbaV.State of maharashtra, Gurbax Singh V.State ofHaryana, Madan Lal V. State of H.P., BirakishoreKar V.State of Orissa and Saikou Jabbi V.State ofMaharashtra. The language of Section 50 is clearand unambiguous and the law so well settled thatit is not possible to take a different view. Wemust, therefore, hold that Section 50 of the NDPSAct did not apply to the facts of this case, whereon search of a tanker, a vehicle, poppy husk wasrecovered. This not being a case of personalsearch, Section 50 was not applicable. Moreover,there was no prior information regarding thecontraband being carried in a vehicle, and therecovery was the result of checking of the vehiclein the normal course."18. The learned counsel would submit that it is not the caseof the investigating officer that Section 50 of the Act is notapplicable and that is the reason why he has recorded that hecomplied with Section 50 of the Act. In this regard, I have to saythat the officer would have been under the mistaken impressionthat even for searching the vehicle Section 50 of the Act has tobe followed. The learned counsel would submit that though P.W.1has stated that he informed the accused that he can exercise theoption of having the search conducted either in the presence of aGazetted Officer or a Magistrate, there is nothing to indicate inhis evidence that he apprised the accused of the right to exercisethe said option so as to have search conducted in the presence ofa Gazetted officer or a Magistrate. This contention is only to benegatived, for the simple reason, as I have already stated, thatSection 50 is not applicable in respect of search made in thevehicle. In this regard we may refer to the law laid down by theHon'ble Supreme Court in State of Punjab VS Baldev Singh reportedin 1999 Supreme Court Cases (Cri) 1080, wherein in para 12, theSupreme Court has held as follows:"On its plain reading, Section 50 would come into https://hcservices.ecourts.gov.in/hcservices/ play only in the case of a search of a person asdistinguished from search of any premises etc.However, if the empowered officer, without anyprior information as contemplated by Section 42of the Act makes a search or causes arrest of aperson during the normal course of investigationinto an offence or suspected offence and oncompletion of that search, a contraband under theNDPS Act is also recovered, the requirements ofSection 50 of the Act are not attracted."Though the leaned counsel has relied on a number of judgments toappraise this Court of the legal position that Section 50 ofN.D.P.S Act is mandatory, I do not want to refer to thosejudgments because it would only add to the length of thisjudgment. More so, because there can be no controversy regardingthe said legal position that failure to follow Section 50 of theAct is itself a ground for acquittal. To repeat, Section 50 ofthe Act is not applicable to the search made in the vehicleand so, it need not be gone into in this case as to whetherSection 50 of the Act has been duly complied with as stated byP.W.1.19. The learned counsel would further contend that thoughSection 52 of the Act is not a mandatory provision, still thesame should have been scrupulously followed and if the same hasnot been done, it creates dent in the case of the prosecution. Hewould submit that as soon as arrest was made, and contrabandswere seized, P,.W.1 ought to have taken the accused and thecontraband to the nearest police station as required under Section52 of the Act. This argument does not have any merit. In myconsidered opinion, the necessity to take the arrestee and thecontraband to the nearest police station will arise only in thecase where the officer who arrested the accused himself is not apolice officer. 20. In the case on hand, P.W.1 himself is a police officerand he was also a station house officer of the ProhibitionEnforcement Wing Police Station which has been duly notified asPolice Station under Section 2(s) of Cr.P.C. Therefore, there wasno necessity for P.W.1 to take the arrestee as well as thecontraband to the nearest police station.21. The learned counsel would submit that there is enormousdelay in forwarding the First Information Report to the Courtand the same has not been explained away. This, according to thelearned counsel, creates doubt in the veracity of the evidence ofP.W.1 insofar as it relates to the alleged arrest and seizure. A https://hcservices.ecourts.gov.in/hcservices/ perusal of the records would go to show that the F.I.R has beenreceived by the Magistrate at 10.30.a.m.on the same day. Theabove time cannot be construed to be a delay at any stretch ofimagination.22. The learned counsel would stoutly contend that Section57 of the Act has also not been followed. In this regard, it is tobe stated that Section 57 is not mandatory and it is onlydirectory. Nevertheless, it is a provision to be followed by thepolice officer. But mere failure to follow the said provisionitself is not a ground for acquittal. Anyhow, as contended by thelearned counsel for the petitioner, if there is total failure tofollow Section 57 of the Act, certainly it would be a favourablepoint in support of the defence. Applying the above legal positionto the facts of the present case, it has to be analysed whetherthere is any violation on the part of P.W.1 to follow suchprovision. According to P.W.1, Ex.P.6 was prepared on the spot assoon as arrest of the accused and seizure of the contraband andthe same was forwarded immediately to the higher officer, viz.D.S.P. of Prohibition Enforcement Wing. The learned counsel wouldsubmit that Ex.P.6 was not prepared at the time as it is spokento by P.W.1 and the same is only a concocted documentsubsequently. The D.S.P has not been examined to speak about thereceipt of Ex.P.6. Further there is no endorsement by D.S.P tomark the receipt of the same by him. This, of course createsdoubt regarding the genuineness of Ex.P.6. But, only for thisflaw, I am of the view, the entire case of the prosecution cannotbe thrown out.23. The learned counsel would contend that the contrabandwas not forwarded to the Court immediately. According to himbecause of this delay, a reasonable doubt should surface and onsuch doubt the accused should be acquitted. Of course, it issettled law that in any case, if contraband or any other propertyis seized, it is absolutely necessary for the officer concerned toforward the said materials to the Court without any delay. Thesaid legal position should be very strictly followed, in a caseof this nature where punishment is very stringent. But in the caseon hand, in my considered opinion, there is no enormous delay inforwarding the material objects to the Court. The delay is verynormal and it does not require any explanation. Apart from thatthere is no denial of the fact that they were forwarded to theCourt. According to the Court, they were received by the Courtwith the seals and slips intact, which would go to establish thatthere was no tampering of material objects. Therefore, in thisview of the mater, I hold that absolutely there is no delay inforwarding the material objects to the Court so as to raise anydoubt in the case of the prosecution. https://hcservices.ecourts.gov.in/hcservices/

24. The next argument of the learned counsel for theappellant is with regard to the power of P.W.1 to investigate thecase. The learned counsel would submit that P.W.1 was attached toProhibition Enforcement Wing which is a separate wing constitutedonly to investigate the offences under Tamil Nadu Prohibition Actand therefore, P.W.1 did not have the power to stop the vehicleand search the vehicle and to further investigate the case. In myconsidered opinion, this argument is only fallacious. As I havealready referred to, under Section 49 of the Act, any policeofficer above the rank of a Constable has got power to stop thevehicle, to search the same and to seize the contraband. Therecan be no controversy that P.W.1 is a police officer though he wasattached to Prohibition Enforcement Wing. Simply because P.W.1 wasa station house officer of Prohibition Enforcement Wing, it doesnot mean that he ceases to be a police officer. The said PoliceStation has been declared as a Police Station under Section 2(s)of Cr.P.C. and therefore, any officer attached to the said policestation may investigate any offence. If the argument of thelearned counsel is to be accepted, then in a given case, where amurder is committed in his presence, can it be said that anInspector of Police attached to the Prohibition Enforcement Winghas to simply keep quiet without arresting the accused. Thus, Ifind neither logic nor correct legal proposition in thiscontention. So, I hold that P.W.1 is fully empowered not only tostop the vehicle, to search the vehicle, to arrest the accused,and to seize the contraband but also to proceed with furtherinvestigation. Above all, the further investigation was done onlyby P.W.6 about whose competency and power, no challenge could bemade by the learned counsel for the appellant.25. Nextly, the learned counsel would submit that evenassuming that the contraband was found in the jeep, it cannot beautomatically presumed that the petitioner possessed the saidcontraband; for it requires consciousness that the contraband waskept in the vehicle. In order to appreciate this contention, itis worthwhile to refer to the judgment of the Hon'ble SupremeCourt in Megh Singh VS State of Punjab reported in (2003) 8Supreme Court Cases 666, wherein in paragraphs 13 and 14, it hasbeen held as follows: " 13. Once possession is established, theperson who claims that it was not a consciouspossession has to establish it, because how he cameto be in possession is within his specialknowledge. Section 35 of the Act gives a statutoryrecognition of this position because of presumptionavailable in law. Similar is the position in termsof Section 54 where also presumption is availableto be drawn from possession of illicit articles. https://hcservices.ecourts.gov.in/hcservices/ This position was highlighted in Madan Lal VS Stateof H.P. 14. In the factual scenario of the presencecase not only possession but conscious possessionhas been established. It has not been shown by theaccused-appellant that the possession was notconscious in the logical background of Sections 35and 54 of the Act."26. 'Possession' in terms of the Act, must be 'consciouspossession' and regarding the said legal position, there can be nodoubt at all. Conscious possession presupposes "knowledge". Whatthe learned counsel would try to say is that the appellant isstated to be only the driver of the vehicle and there was yetanother person in the vehicle who had fled away from the scene ofoccurrence and therefore, it can also be presumed that thecontrabands would have been kept in the vehicle by the saidaccused without the knowledge of the appellant. This assumptionwill only be far fetched. It is not as though what was found inthe jeep was a very small quantity, which can be concealed in thevehicle by somebody without the knowledge of the driver. It isthe case of the prosecution that there were 13 bags containingGanja which were kept behind the driver's seat in the jeep. Itcannot be said that such a huge quantity could have been kept inthe vehicle by other accused without the knowledge of theappellant. This would go to show that certainly, this appellanthad knowledge and so, his possession was nothing short of'conscious possession'. It is not at all the case of theaccused/appellant that he drove the vehicle without knowing thatthe contents of gunny bags were atleast Ganja. If it is thepositive case of the accused that the second accused or somebodyelse loaded these gunny bags into the vehicle mis-representing tohim that they contained some other substance and if it is thefurther case of the appellant that he also believed the same tobe true, then it may require a great deal of analysis as towhether the possession of the accused in such a situation wouldamount to 'conscious possession'. Here, in the instant case, theaccused has not made any such plea and instead, his defence is atotal denial. As held by the Hon'ble Supreme Court, the accusedhas failed to show that his possession was not 'consciouspossession' in the logical background of Sections 35 and 54 of theAct. Therefore, I have got every reason to hold that thepossession of these contraband in the jeep was a 'consciouspossession ' on the part of the appellant.27. The next contention is that the contraband could havebeen kept in the jeep by A.2 and therefore, the appellant cannotbe held to have possession of the entire quantity. This argumentdoes not persuade me. It need not necessarily be exclusive https://hcservices.ecourts.gov.in/hcservices/ possession by accused and even if it is a joined possession ofmore than one accused, every such accused shall be deemed to havepossession of the entire quantity for the purpose of the penalprovisions of the Act.28. The learned counsel would then contend that the FirstInformation Report in this case does not satisfy the requirementsof Section 154 of Cr.P.C. inasmuch as it is not in the formatwhich is usually used in Police Stations in the State of TamilNadu. To substantiate this contention, the learned counsel wouldrely on certain answers elicited from P.W.1 where he has statedthat a different format of F.I.R book is normally used in theState. Per contra, the learned Additional Public Prosecutorwould submit that the First Information Report in this case is inthe proper format as prescribed by the Government of Tamil Nadu. Ihave perused the original first information report. Admittedly, itis in a printed format. Though it is not like that of the formatof other first information reports which is normally used in theState of Tamil nadu, this is also a book prescribed by theGovernment of Tamil Nadu under Section 154 Cr.P.C. Therefore, thefirst information has been entered only in the book specified bythe State of Tamil nadu. There is no illegality in the same. I mayalso say that in the given case, even if the information has notbeen entered in the prescribed book, that cannot be a ground todoubt the entire case of the prosecution. 29. Then the learned counsel would rely on the evidence ofD.W. 2 to say that the accused would not have been arrested atthe place, the time and in the manner alleged by the prosecution.He would submit that the accused is a mechanic. According to theevidence of D.W.2, 2 ½ years before the date of examination beforethe lower Court on 10.05.2007, when the accused was in theworkshop, an individual came and wanted him to come near theCollector's office to repair a jeep parked there. Accordingly, theaccused went to repair the vehicle . Thereafter, the accused didnot return. Subsequently, after 3 days, he was informed by thesister of the accused that he had been involved in a Ganja case.In my considered opinion, no weightage could be given to thisevidence for the reason that there is no reference about the dateand time on which the accused was taken to the Collector'sOffice. Assuming that what was deposed by D.W.2 is true, even thenthat will not come to the help of the accused to probabalise hisdefence that he was not arrested on 11.09.2004 while he founddriving the jeep.30. A perusal of the statement made by the accused underSection 313 Cr.P.C would go to show that according to him, on10.09.2004, a person by name, Mani took him from the motorworkshop to a place near the Collector's office for repairing a https://hcservices.ecourts.gov.in/hcservices/ jeep. When he was so doing repairs, the police took him intocustody and booked him in this case by using the contraband. Byexamining D.W.2, the accused is not successful in proving thesaid defence of the accused. Had it been true that he was kept inillegal custody from 10.09.2009, by all probability, he wouldhave told this fact to the Judge at the earliest opportunity whenhe was produced for remand. This would only go to show that thedefence of the appellant is only an afterthought and that D.W.2cannot be believed. Further, it is not explained by him as towhat happened to Mani at the crucial time. It is also notexplained as to why Mani was not examined by him to probabilisehis defence.31. The next contention of the learned counsel for theappellant is that under Ex.P.8 (form 95) the contrabands werehanded over to the Court only on 13.09.2004. According to him, itis not in evidence as to where and in whose custody, thecontrabands were kept safely in the meanwhile. In order toappreciate this argument, I have perused the records, whichwould reveal that the contrabands along with Form 95 were handedover to the Court on 11.09.2004 itself. But the learnedMagistrate has returned the same to the police officer for safecustody as it happened to be Saturday holiday. According to theevidence of P.W.1, thereafter he kept the contrabands in his safecustody as directed by the Court and thereafter, he handed overthe same to the Magistrate on 13.09.2004.i.e. On the nextimmediate working day . Thus, there is clear evidence that it wasonly in the safe custody of P.W.1. At this juncture, it cannot belost sight of the fact that the seals and slips were intact whenthe contrabands were again produced before the Court on15.09.2004. Therefore, it cannot be said that in the interveningperiod, the contents of the contrabands when they were in thecustody of inspector of Police, were tampered with.32. The learned counsel would lastly submit that assumingthat the contraband was found in possession of the appellant,since the said contraband contained seeds and leaves also, theentire quantity can be construed as Ganja as per the definitionof the term 'Ganja' in the Act. To substantiate this , thelearned counsel would take me though the definition of Ganja asfound in Section 2(b) of the Act which reads as follows:"ganja, that is, the flowering of fruiting tops ofthe cannabis plant (Excluding the seeds and leaveswhen not accompanied by the tops) by whatever, namethey may be known or designated )"33. The learned counsel would attempt to interpret the saidprovision to say that Ganja means flowering of fruiting topsexcluding seeds and leaves. He would take me though the analysis https://hcservices.ecourts.gov.in/hcservices/ report Ex.P.14, wherein it is stated that the contents of thesamples contain small leaves, seeds and crushed leaves also. Fromthis, the learned counsel would submit that there was no puritytest conducted to know the weight of the Ganja by excluding theleaves. The learned counsel would rely on two judgments in supportof this contention. The first one is the judgment of the Hon'bleSupreme Court in 2008 Cri.L.J.1131 (Raju Mohanrao Rathod Vs Stateof Maharashtra) and the second one is the judgment of a learnedsingle Judge of this court in K.V.Ramasamy Vs The Superintendentof Police, preventive Unit, Salem reported in 2010(1) T.N.L.R51(Madras).34. I have carefully gone through the above judgments. In myconsidered opinion, the above judgments do not come to the help ofthe accused in any manner . The definition of the term "Ganja"would go to show that seeds and leaves are to be excludedonly when they are not accompanied by flowering tops or fruitingtops. If they are accompanied by flowering tops or fruiting tops,they cannot be excluded from the definition of 'Ganja". This wasthe view taken by the Hon'ble Supreme Court in Raju MohanraoRathod's Case wherein in paragraph 12 the Supreme Court has heldas follows:" 12. A bare reading of the above definition wouldmake it manifest that the seeds and the leaves areexcluded from the operation of the definition ofword "ganja" only when the same are not accompaniedby the flowering tops or the fruiting tops. Thereport of the C.A reveals that greenish leaves,seeds and stalks were noticed at the time ofanalysis. Thus, when the leaves and seeds wereaccompanied by the fruiting tops, then it will haveto be said that the seized stock was of ganja". 35. In an identical situation, while considering the abovedefinition of the term 'ganja' in the light of the judgment of theHonble Supreme Court, a learned judge of this Court (Hon'bleJustice T.Sudanthiram) in K.V.Ramasamy's case has analysed thedefinition in detail and has correctly understood the judgment ofthe Hon'ble Supreme Court and has held ultimately as under:" The first thing to be noted is that as per thereport, apart from flowering top, seeds, leaves,stem was found in the samples. The definition ofganja excludes the seeds and leaves when notaccompanied by the tops. Therefore, when the ganjais seized, with the flowering or fruiting tops,seeds and leaves, totally it has to be taken asganja. If the seeds and leaves are separate, notaccompanied with the flowering or fruiting tops, https://hcservices.ecourts.gov.in/hcservices/ they could not be terms as ganja. This makes itclear that mainly the flowering or fruiting tops ofthe cannabis plant is a ganja. As far as the stem isconcerned, it is doubtful whether it could beregarded as ganja. Normally, the plant includesstem and therefore, the cannabis plant must be withstem and also with other parts such as flowering orfruiting tops, seeds and leaves. Therefore, when acannabis plant is seized, if it contains floweringor fruiting tops,seeds and leaves beingaccompanied, it is not necessary to mentionseparately, it contains stem also. As mentionedabove stem also is part of the plant. At the sametime, like seeds and leaves, stem is notaccompanying the flowering top and broken stem isavailable, it could not be terms as ganja. The stemmay be long or short, normally it is long thin partof the plant."However, the learned Judge in paragraph 20 of the said judgmenthas held as follows:" This Court is to conclude that thought heprosecution has established that contraband was'Ganja', failed to establish that the total weightof the ganja seized was above 20 kgms."36. Placing reliance on this, the learned counsel would arguethat the learned judge has held that ganja shall not includeseeds and leaves. But the learned Judge has not taken such aview. He has only said that stem of the Ganja plant should beexcluded as they cannot be accompanied by flowering tops andfruiting tops. . To repeat, I have to state that the learned Judgehas held that having regard to the fact that the weight of theganja including stems together with two gunny bags was only 21kgms and since it was marginally above 20 kgms, it cannot besafely concluded that the total ganja seized excluding the weightof gunny bags and stems was above 20 kgms. In the case on hand,the ganja seized is not marginally above the prescribed quantity. 37. Applying the said principles to the facts of the presentcase, if we look into Ex.P.14, it is crystal clear that seedsand leaves were found along with the flowering tops and fruitingtops. So, the conclusion of the expert that the entire sample is'ganja' needs to be accepted. Therefore, the question ofconducting purity test to exclude leaves and seeds does not arisein the case on hand at all. In view of all the above, at anyrate, it cannot be held that the quantity seized from thepossession of the accused is not a commercial quantity. Therefore,the accused is liable for conviction under Section 8(c) and 20(b)(ii)(c) of the N.D.P.S Act as held by the trial Court. https://hcservices.ecourts.gov.in/hcservices/

38. Coming to the question of sentence, the trial court hasimposed minimum sentence as provided under section 20(b)(ii)(c)of the Act and therefore, it does not require any interference atthe hands of this Court.39. In the result, the appeal fails and the same isaccordingly, dismissed. The judgement of conviction and sentencedated 27.06.2007 recorded by the learned Special Judge [EssentialCommodities Act], Salem in C.C.No.185 of 2005 is confirmed.Consequently, connected MP is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.palTo1. The Special Judge, Court under EC Act, Salem.2. The Inspector of PoliceNIB CID, Salem3. The SuperintendentCentral Prison,Coimbatore4. The District Collector Salem5. The Director General of PoliceChennai-46.The Public Prosecutor, High Court, Madras. Crl.A.No.457 of 2009RSI (CO)kk 30/3