Tamil Nadu

Not all procedures followed by police need to have statutory backing: HC

Filing of an alteration memo is merely an information provided to the court about the route taken by the investigating agency, says High Court judge. File photo  

A procedure or practice followed by the police need not be jettisoned on the ground of not being backed by a statute if it had been in vogue for a long time and if it does not violate any law, the Madras High Court has said.

Justice P.N. Prakash said so while rejecting the argument of an accused that the Code of Criminal Procedure (Cr.P.C.) does not permit investigating agencies to file alteration memos before courts for clubbing two cases into one.

“That there is no provision in Cr.P.C., for filing alteration memo is indeed true but it is a procedure adopted by the investigating agencies from time immemorial in Tamil Nadu and it had fossilized into an accepted practice,” the judge said.

He pointed out that when a person gets attacked brutally, the police register a First Information Report (FIR) under Section 307 (attempt to murder) of Indian Penal Code and forward the document to the jurisdictional judicial magistrate.

However, if the injured dies subsequently, the case would get altered to Section 302 (murder) of IPC and an alteration memo would be forwarded to the magistrate. Such a memo would not amount to amending the FIR because the latter could not be amended after registration.

An intimation

“Filing of an alteration memo is an intimation to the court that the investigating officer is now investigating a case of murder and not attempt to murder. It is merely an information provided to the court about the route taken by the investigating agency.

“It does not require the formal nod of any court because investigation completely falls within the domain of the investigating agency, of course to be generally monitored by the court concerned and nothing beyond that,” Justice Prakash added.

As far as the present case before the court was concerned, he said the Narcotics Control Bureau (NCB) had reportedly received a call from a courier firm in Tiruppur on June 25, 2019 complaining about the suspicious nature of a consignment bound for Saudi Arabia.

The NCB sleuths seized the package from the courier office and found that the consignor was the petitioner R. Westly of Ambasamudram in Tirunelveli district and the consignee was Basimah Hadi Alyami at Al Khobar in Saudi Arabia.

On opening the package, they found that it contained 500 Tramadol tablets, a pain killer that had been declared as a psychotropic substance on April 26, 2018 and brought under the ambit of Narcotic Drugs and Psychotropic Substances (NDPS) Act of 1985.

On June 26, 2019, the sleuths seized another consignment of 500 tablets sent by the petitioner to Mishal Yousu in Saudi Arabia. Though two separate cases were registered regarding the seizures, an alteration memo was filed to club them together.

A special court for NDPS Act cases in Coimbatore accepted the alteration memo and hence the present criminal revision case.

Opposing the special court’s decision, the petitioner’s counsel N.S. Sivakumar argued that the NDPS Act classifies seizure of psychotropic substances into three categories. The first was ‘small quantity’ of up to five grams for which the maximum punishment was one year of imprisonment or fine or both.

The second was the quantity between 5.1 grams to 249.99 grams for which the accused could be punished with a maximum of 10 years of imprisonment and fine. However, there was no minimum punishment prescribed for dealing with such quantity.

On the other hand, the third category of ‘commercial quantity’ of 250 grams and beyond entails the accused to a minimum punishment of 10 years in prison and it could extend up to 20 years. It would also attract a fine of not less than ₹1 lakh.

Stating that the average weight of each tablet recovered by the NCB from the courier office was 0.4756 grams, the petitioner’s counsel contended that clubbing the two seizures would take the total quantity to 470 grams.

Court’s prerogative

Instead, if the cases related to the two seizures were tried separately, each seizure would weigh only around 235 grams. After recording his submissions, Justice Prakash said it was the prerogative of the trial court to decide whether an accused should face single or multiple trials.

“Today, in practice, what happens is, whatever report/complaint is filed by the investigating agency, courts accept them as they are and conduct trial thereupon,” the judge lamented and said the investigators could not be allowed to take decisions on single or multiple trials.

In so far as the petitioner was concerned, the prosecution would have to prove both the seizures to make them fall under ‘commercial quantity,’ the judge said.

He also sounded a word of caution that the petitioner may not even have known about Tramadol having been suddenly declared a psychotropic substance in April 2018 especially because he had given his correct name and address in the consignment.

“When the NCB called him to their office, he walked straight into the lion’s den. Under the NDPS Act, punishments are stringent and presumptions are loaded against the accused. So, the responsibility is heavy on the trial court to ensure that the innocent does not suffer unjust sentence. The trial court may bear these aspects in mind while trying the accused,” the judge concluded.

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Printable version | Nov 28, 2020 2:22:19 PM | https://www.thehindu.com/news/national/tamil-nadu/not-all-procedures-followed-by-police-need-to-have-statutory-backing-hc/article32903953.ece

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