BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25/01/2008 CORAM THE HONOURABLE MR.JUSTICE S.ASHOK KUMAR Crl.A.(MD).No. 985 of 1999 The Assistant Commissioner of Customs Head Quarters Preventive, Tuticorin. ... Appellant Vs 1. Prem Pratap Singh Sisodia alias Prem Singh Sisodia alias Prem Pratap Sisodia 2. Anil Bhai Balwant Rai Desai ... Respondents Prayer Criminal Appeal filed under Section 378 Cr.P.C. against the judgment dated 28.5.1999 on the file of the Special District and Sessions Judge, Madurai, in C.C.No. 562 of 1998. !For Appellant ... Mr.C.Arulvadivel alias Sekar ^For Respondents ... Mr.B.Kumar, S.C., for Mr.K.Chandrasekar :JUDGMENT
The state represented by Assistant Commissioner of Customs, Head Quarters
Preventive, Tuticorin has preferred this appeal against the acquittal of the
respondents herein for the alleged offences under sections 8(c) of NDPS Act
1985, punishable under section 22 and 29 of the Act passed by the Special
District and Sessions Court (The Narcotic Drugs and Psychotropic substances Act
Court) Madurai in C.C.No.562 of 1998.
2. The charges against the respondents who had been arrayed as A1 and A2
before the trial court were that on 12.12.1994, the officers of customs
preventive, Tuticorin seized seven chlorine cylinders in which Mandrax tablets
were concealed from the godown of Patel Roadways, Tuticorin and on 15.12.1994,
A1 and A2 were apprehended in Patel Roadways and statements dated 16.12.1994
were recorded from A1 and A2. They admitted that in addition to 7 cylinders of
Mandrax tablets seized at Tuticorin, one more consignment of 7 cylinders were
sent to Peenya, Bangalore with fictitious name and address of consignee as M/s.
Meenakshi Enterprise, Peenya Industrial Estate Tumkur Road, Bangalore on
30.11.1994 from Saroli branch of RTC and A2 signed in the invoice as G.T.Rana.
On that basis, information was forwarded over phone from Customs Office,
Tuticorin to Customs Preventive Unit, Headquarters, Bangalore on 16.12.1994. On
17.12.1994, the customs officers searched the premises of M/s.South Eastern
Roadways, Bangalore in the presence of witness and found 7 cylinders. The
relevant documents pertaining to 7 cylinders were recovered. The address
mentioned in the invoice as M/s.Meenakshi Enterprises was found to be false and
with the help of gas cutters the 7 cylinders were cut open and found Mandrax
tablets in polythene pouches and the test carried out gave positive indication
of methaqualone. On the whole 4957 plastic pouches containing Mandrax tablets
weighing in all 299.85 kg concealed in the 7 cylinders. The witness were
examined C.Ramachandra, cashier of M/s.South Eastern Roadways, Bangalore stated
that on 08.12.1994, two persons approached him for taking delivery of the 7
cylinders and the same was not delivered to them because the consignment note
was not having any seal of the consignee. One Somushankar Rathod, driver of the
lorry stated that the seven cylinders were loaded at Surat on 29.11.1994 by one
M/s.MAMA Roadways, Surat and the same were unloaded on 02.12.1994 at RTC South
Eastern Godown. Therefore, it is alleged that A1 and A2 admitted in their
statements dated 16.12.1994, 17.12.1994 and 18.12.1994 that they conspired in
the manufacture, transport and sale of Mandrax tablets and are liable for
punishment under section 22 and 29 of NDPS Act.
3. When the charges were read over, they denied having committed any of the
offence charged and hence the trial was conducted.
4. On behalf of the prosecution, PW-1 to PW-11 were examined and documents were
marked as Ex.P1 to Ex.P70.
5. PW-1, K.S.Srinivasan, Supdt. Customs Preventive Head Quarters, Bangalore, in
his evidence stated that on 1612.1994 at about 2.30 P.M. a telephonic message
was received by Pw9, Addl. Commissioner of Customs, Bangalore from Pw10 Addl.
Commissioner, Tuticorin. As per the message Ex.P1 Mandrax tablets in 7
cylinders were concealed and were lying at Road Transport Corporation Parcel
Office, Peenya and the officers along with Pw1 went to the transport company as
instructed by Pw11 and search authorization was also given by Pw11. However,
Pw1 did not conduct any search because of darkness and posted the officers to
guard the premises. On 17.12.1994, Pw1 went to the godown of South Eastern
Roadways, Tunkur at 9 a.m. and after showing the search authorization to the
staff of the Transport godown, search was conducted and 7 cylinders were found
and with the help of gas cutters, in the presence of witnesses the seven
cylinders were cut open, found to contain 4957 plastic pouches containing
Mandrax tablets in the 7 cylinders totally weighing 2998 kg. The Mandrax
tablets and the relevant documents Ex.P4 to Ex.P9 were seized under Mahazar
Ex.P3. Statements of C.Ramachandran, Pw3, Narasimharao, Krishnappa were recorded
on 18.12.1994 and were marked as Ex.P11, 13, 15 and 17. The report under section
57 was marked as Ex.P18. One Moorthy was examined and a statement in Ex.P20 was
recorded on 19.12.1994. Ex.P21 was the letter to post master to furnish the
correct address of Meenakshi Enterprises and his reply is Ex.P22. Forwarding
memo was Ex.P23 and godown receipt was Ex.P24. On interrogation of Ramachandran
of SRC, Bangalore revealed two persons made enquiries about the 7 cylinders. Pw1
admitted that no identification parade regarding A1 and A2 was conducted.
6.PW-2, Chowhan, Customs Inspector, Bangalore has stated that on 23.12.1994
sample packets were received by him and the same were sent to Principal
Laboratory, New Delhi.
7. PW-3, Prakash Pandey, Manager, South Eastern Roadways, Bangalore has stated
about the search and seizure of documents pertaining to 7 cylinders on
16.12.1994 and 17.12.1994. His statement is marked as Ex.P13.
8. PW-4, K.S.Gnanasekar, Superintendent of Customs Preventive Unit, Tuticorin
has stated about the search and seizure of 7 cylinders containing Mandrax
tablets at Roadways, Tuticorin on 12.12.1994 and the relevant documents and the
seizure of documents from the accused on 15.12.1994 and the documents and
Mahazar were filed in C.C.No.113/95. The statements of the accused were
recorded on 16.12.1994. They were Ex.P37 and Ex.P39. Since the averment
revealed transport of 7 cylinders to Peenya, Bangalore on 30.11.1994 from Surat,
the same was revealed to Asst. Commissioner of Customs, Tuticorin and Pw10 by
showing the statements. Pw10 in the presence of Pw4 telephoned to Pw9 and
conveyed the averment in the statements of A1 and A2 and asked him to take
steps. Statements Ex.P41 and Ex.P43 were recorded from A1 and A2 and they were
arrested on 18.12.1994 and remanded to custody on 19.12.1994 in C.C.No.113/95.
9. PW-5, P.V.Wankhade, Superintendent of Customs, Preventive at Rathinagiri,
Maharashtra has stated that on the basis of the message received from the
Customs Office, Bangalore, he examined the owner of the Truck Pw8 and the driver
of the Truck Pw7 in which the seven cylinders were transported from Surat to
Bangalore. Their Hindi statements are Ex.P49 and 53 and English translations
are Ex.P50 and 54.
10. PW-6, D.K.Bansal, Chief Chemical Examiner, Central Revenue Control
Laboratory, New Delhi has stated about the receipt of sample packet and the test
report is Ex.P36.
11. PW-7, Somu Shankar Rathod, Driver of the Truck who transported the seven
cylinders from Surat to Bangalore has stated that he left Surat on 30.11.1994
and reached Bangalore on 02.12.1994 and delivered the goods at R.T.C. Office,
Bangalore. His statement is Ex.P53 in Hindi and its English translation is
Ex.P54.
12. PW-8, Vilas Muley, owner of the truck in which the 7 cylinders transported
from Surat to Bangalore has given a statement in Ex.P49 in Hindi and its English
translation is marked as Ex.P50.
13. PW-9, J.S.R.Khating, Addl. Commissioner of Customs, Bangalore states about
the Telephonic message from Pw10 on 16.12.1994 and he instructed Pw11 to take
action on that basis.
14. PW-10, J.M.K. Sekar, Asst. Commissioner Customs, Tuticorin has stated that
Pw4 handed over the statements Ex.P37, 39 of A1 and A2 to him and he has given
the telephonic message Ex.P1 to Pw9.
15. PW-11, D.Rengasamy, Asst. Commissioner Customs Preventive, Bangalore has
stated about the conveyance of the message by Pw9 to him. He instructed Pw1 to
take action on that basis and Pw1 filed report Ex.P18. He filed the complaint
Ex.P70 before the civil and sessions court, Bangalore as C.C. No.90/96.
16. When the accused were questioned under Section 313 Cr.P.C with reference to
the incriminating materials found against them in thwe evidence of the
prosecution witnesses, they denied having committed any offence and their
complicity in the case.
17. On behalf of the accused 1 and 2, Dw-1 and Dw-2 were examined and the prison
records were marked as Ex.D1 to Ex.D6. DW-1, in his evidence stated that on
19.12.1994, both the accused were brought to Central Prison, Madurai as remand
prisoners, Ex.D1 was the prisoners’ register book maintained in the prison. A1
was given the number 1171 and A2 was given the number 1172. Both A1 and A2 were
brought late to the prison and at that time both complained of leg pain and
noted the same in Ex.D1 which note was marked as Ex.D2. It was mentioned in
that A1 complained of contusion on his left leg and pain on his palms because of
beating. The note with regard to No.1172 mentioned that A2 complained of pain
on his both palms and he was unable to walk. Dw1 denied that Ex.D2 was
subsequently written in Ex.D1 after deleting the original writing. He also
denied the suggestion that it was written in some other pen. Since the ink was
exhausted, new ink was filled up and Ex.D2 was written.
18. DW-2, in his evidence stated that during December 1994 he was working as
prison doctor in Madurai Central Prison and has given medical treatment to A1
and A2 in the Central Prison. Both were in- patients in Central Prison hospital.
Dw2 has given letters Ex.D3 and Ex.D5 to Superintendent, Central prison, Madurai
mentioning the nature of complaint made by A1, A2 and O.P. Chits Ex.D4 and Ex.D6
were also enclosed. As per the records Ex.D4 to Ex.D6, A1 was complaining body
pain, chest pain and giddiness. He was examined thoroughly and on examination,
there was a contusion mark in his left calf muscles. He was detained in jail
hospital and treated from 22.12.1994 to 02.01.1995. He was produced before Chief
Medical Officer and was seen by him. He was advised to take same line of
treatment. Similarly, A2 was complaining of low back pain, body pain and pain
over both feet. He was examined thoroughly and on examination and with his past
history, he was diagonised as known case of diabetic and treated with suitable
drugs from 22.12.1994 to 02.01.1995 as in-patent in jail hospital. He was
produced before Chief Medical Officer and was seen by him and was advised to
take same line of treatment.
19. The learned Special Judge after analysing the evidence on record and after
hearing both sides had acquitted the respondents herein of all the offences
charged on various reasons.
20. The learned special public prosecutor contended that the learned special
judge has committed grave error in acquitting the accused without properly
considering the evidences on record. He has put-forth the following
contentions:
(i) The lower court ought to have seen that Pw4 in this case on examining A1
and A2 and recording their statements, got information about the contraband
involved in this case and Pw4 in turn has informed his superior officer Pw10 and
this has been recorded in Ex.P1. Therefore, section 42 (2) of the Act has been
complied with.
(ii) The lower court ought to have taken into consideration of the fact that
based upon the confession statements Ex.P41 to 44 of A1 and A2, the seizure was
effected on 17.12.1994 at M/s.South Eastern Roadways, Bangalore.
(iii) The evidence of Pw7, the lorry driver who has transported the 7 cylinders
from Surat to Bangalore corroborated the statements of A1 and A2 with regard to
the sending of the consignment from Surat to Bangalore.
(iv) The confession statements of A1 and A2 are voluntary in nature and the
evidence of Dw1 and Dw2 ought to have been rejected since they have given false
evidence only in order to help the accused and in Ex.D1, different ink was used
to write Ex.D2 after erasing the original writing in Ex.D1 and the accused had
not made any complaint to the Judicial Magistrate against the officers at the
time of remand and therefore the accused ought to have been convicted on the
basis of their confession statements.
21. On the other hand, the learned Senior Counsel Mr.B.Kumar appearing for the
respondents/accused would strenuously argue that the prosecution has miserably
failed to prove its case and therefore the trial court rightly acquitted the
accused from the charges levelled against them.
22. According to the learned senior counsel, the foremost material relied
upon by the prosecution is the confession statements of the accused. But, the
confession statements are not voluntary and truthful and therefore they are not
admissible in evidence. The confession statements of A1 and A2 were recorded on
16.12.1994 and 17.12.1994 and 18.12.1994 when they were under the custody of the
customs officers in customs office, Tuticorin. According to them, they were
severely beaten up and involuntary statements were recorded from them. The
findings of the trial court recorded in that regard are unexceptional.
23. The learned senior counsel for the respondents has prefaced his
submissions to show how the statements recorded from A1 and A2 are involuntary
and could not be taken into consideration by referring the leading decision of
Supreme Court in Sankaria -vs- State of Rajasthan reported in AIR 1978 SC 1248.
The Supreme Court stated while considering the confession statement, the
statement must satisfy two tests.
(a) if the statement is perfectly voluntary.
(b) if the first test is satisfied on a true reading, it could be considered
as truthful. If both tests are satisfied and where the statement is retracted,
the court must find if there is corroboration atleast on general particulars.
It is only if all the above three test are satisfied the statements could be
relied upon against the accused. This decision of the Supreme Court has been
quoted and followed in the decision in State (NCT of Delhi) – vs- Navjot Sandhu
(Parliament attack case) reported in 2005 SCC (Cr.) 1715. Therefore, the
statements of A1 and a2 have to be tested in the light of the above three
principles.
24. In the instant case, the customs officers are not police officers. Hence,
the confession statement recorded by them is not hit by the prohibition under
section 25 of Evidence Act. Nevertheless, the statements have to be tested
under section 24 of Evidence Act. The officers being person in authority within
the meaning of section 24 of Evidence Act, the burden of establishing that the
statements recorded by customs officers are involuntary is on the accused.
However, the burden is very light. An accused is only need to show the
circumstances from “which it appears to the court” to have been caused by
inducement, threat or promise. This aspect is also emphasized by the Supreme
Court in Pyare Lal Bhargava -vs- State of Rajesthan reported in AIR 1963 SC 1094
and also in the decision in state (NCT of Delhi) – vs – Navjot Sandhu reported
in 2005 SCC (Cr.) 1715. It is stated that “The expression “appears” connotes
that the court need not go to the extent of holding that the threat, etc., has
in fact been proved. If the facts and circumstances emerging from the evidence
adduced makes it reasonably probable that the confession could be the result of
threat, inducement or pressure, the court will refrain from acting on such
confession even if it be a confession made to a Magistrate or a person other
than a police officer”. Another decision is Sevantilal Karsondas Modi -vs-
State of Maharashtra reported in AIR 1979 SC 705 on the same point.
25. The evidence in this case has to be viewed in the light of the above
position of law. The Sessions Court while arriving at its conclusion that the
statements of A1 and A2 are involuntary is well supported by circumstances as
well as the evidences given by the defence witnesses.
26. It is also contended by the learned senior counsel for the
respondents/accused that while recording a statement of confession in nature
under section 164 Cr.P.C., by a Magistrate, the code itself provides series of
safeguards. However, there is no safeguard while recording a statement under
NDPS Act by the Officers of customs. Therefore, according to him, the
statements require to be “closely scrutinised” whether it was voluntarily
obtained or not. In a decision of Supreme Court in Francis Stanley @ Stalin -vs-
Intelligence Officer, NCB, Tiruvanathapuram reported in 2007 (2) SCC (Cr.) 618
in paragraph 15, it is held that “while it is true that a confession made before
an officer of the department of Revenue Intelligence under the NDPS Act may not
be hit by section 25 in view of the aforesaid decisions, yet such a confession
must be subject to closer scrutiny than a confession made to private citizens or
officials who do not have investigating powers, under the Act.” This decision
is followed in Mohtesham Mohd. Ismail -vs- Spl.Director, Enforcement Directorate
reported in 2007 (8) SCC 254. There is also force in this submission made by
the counsel for the respondent/accused.
27. There is another startling feature in this case. PW-1 in his cross
examination has accepted that two further statements of A1 and A2 were recorded
on 04.01.1995 and 12.01.1995 in Central Prison, Madurai and in that both the
accused totally denied their involvement in the alleged seizure of Mandrax
tablets in seven cylinders at Patel Roadways, Tuticorin. The criticism by the
Sessions Court that the prosecution has suppressed these two materials and not
marked them in court is also justifiable.
28. The learned Senior Counsel for the respondents in supporting the judgement
of the trial court has emphasised the following aspects to show that the
statements recorded from the accused are involuntary and have to be eschewed
from consideration. A1 and A2 were cited as accused in four cases in
C.C.No.113/95, C.C.No.417/95, C.C.No.325/95 and C.C. No.562/98 and both of them
were implicated in the cases on the basis of their apprehension on 15.12.1994 at
Patel Roadways, Tuticorin and the seizure of documents under Mahazar. For the
purpose of convenience and for better appreciation of evidence, it is to be
mentioned here that Gnanasekar, Superintendent of Customs, Tuticorin who was
instrumental in apprehending A1 and A2 at Patel Roadways, Tuticorin has been
examined as PW-1 in C.C.No.113/95 (C.A. 712/99), as PW-21 in C.C. No.417/95
(C.A. 844/99), as PW-2 in C.C. No.325/95 (C.A. 976/99) and as PW-4 in
C.C.No.562/98 (C.A.985/99) and he has spoken about the seizure of documents
under Mahazar which was marked as Ex.P.24 in C.C. No.113/95 and as Ex.P42 in
C.C. No.325/95. The statements of A1 and A2 recorded by Gnanasekar on
16.12.1994 was marked as Exs.P41 and 42 in C.C. No.113/95, as Exs.P90 and 89 in
C.C. No.417/95 and as Ex.P37, 38, in C.C. No.562/98. The statements of A1 and
A2 dated 17.12.1994 and 18.12.1994 were marked as Exs.P.48 and 49 in C.C. No.
113/95, as Exs.P92 and 91 in C.C.No.417/95, as Exs.P.46 and 47 in C.C. No.325/95
and as Exs.P.41 and 43 in C.C. No.562/98. Thirugnanasundaram, Customs
Inspector, Tuticorin who assisted Gnanasekar was examined as PW-30 in C.C.
No.113/95 and as PW-16 in C.C. No.325/95. Firstly A1 and A2 have been kept
under illegal confinement for over 4 days. It is the case of the prosecution
itself that A1 and A2 were apprehended at Patel Roadways at 11.45 a.m on
15.12.1994. They were taken to the Customs Office and kept there in the night.
Infact seizure Ex.P24 Mahazar was signed by A1 and A2 on the night of
15.12.1994. Both Pw-1 Superintendent of Customs and another officer of customs
Pw-30 both admitted in evidence that the accused were in their custody from
15.12.1994 till they were produced for the purpose of remand on 19.12.1994.
There was no explanation, nor could there be any for the prolonged confinement
of A1 and A2 in the customs office at Tuticorin. This is more so, when no
summons has been issued either under NDPS Act or under customs Act for their
appearance before the customs authorities. The three statements from each of
the accused were written when they were under such patently illegal custody. The
contention that statements of the accused are therefore stamped with
involuntariness has force and acceptability.
29. Secondly, there is inherent material to show that the accused were subjected
to prolonged interrogation that too in the night time. In both Exs.P48 and 49
which are said to have been recorded on 17.12.1994. The statement begins on
17.12.1994 and ends on 18.12.1994. These dates are mentioned in the statements
itself. The prosecution witness Pw-1 & Pw-30 have also accepted the same. It
was contended before me that the only logical inference is, the accused were
continuously interrogated during night time and statements were recorded. In
this regard, serious reliance was placed in the judgments of the constitution
bench of the Supreme Court in Kartar Sing – vs- St.of Punjab, reported in
1994(2) JT SC 423 in paragraph 419. The said judgment was followed by
A.Packiraj,J., in an unreported judgement of this court in Criminal Appeal
No.139/95 dated 26.09.2001. Though the judgment of the Supreme Court on the safe
guards to be observed while recording confession statements was in the context
of interpreting section 15 of TADA, they are also of general observation where
statements of confession in nature are recorded by the officials who are not
police officers. The Supreme Court has observed in para 149 that “Equally it is
settled law that confession would not be recorded during nighttime or late hours
after the accused has been subjected to interrogation by the police officers for
3 or 4 hours and had broken down under the continued interrogation”. Thus, the
judgments cited on behalf of the respondents clearly apply to the facts of this
case. Thirdly, the accused have more than probablised that they were subjected
to ill-treatment and were subjected to serious coercion which have no sanction
of law. The evidence of Pw-20 in C.C.No.113/95 is relevant in this respect. It
is an admitted case that only three persons were taken to the office of customs
on 15.12.1994. They were A1, A2 & Pw20. Pw-20 was kept for four days in one
room of the customs office while A1 and A2 were kept in the next room and he has
deposed that he heard screaming noise. Since, no other person than A1 and A2
were brought for the purpose of interrogation, the screaming noise could have
come only from A1 and A2. Though Pw-20 was treated as hostile in C.C. No.113/95,
his evidence was not disputed by the prosecution.
30. In this regard, the learned senior counsel also relied on the
evidences of Dw1, the Assistant Prison Officer, Central prison, Madurai and Dw2,
the prison doctor who has treated the accused from 22.12.1994 to 02.01.1995 in
the jail hospital as in-patients. Ex.D1 to Ex.D6 were also marked to prove the
injuries and pain found on the accused at the time of their admission in Central
prison, Madurai and also their treatment taken there from 22.12.1994 to
02.01.1995.
31. This aspect is probablise nay even establish by the evidence of Dw1
and Dw2 and production of Ex.D1 to Ex.D6. These materials were produced to show
that they had physical injuries upon them at the time of remand which are not
explainable except on the hypothesis that they were caused when they were under
the custody of the customs officers.
32. The analysis of evidence of Dw1 and Dw2 in this regard and notings
in the jail records that the accused had contusions on their body and could have
been caused when they were in the custody of customs offices clearly go to show
that the accused had been coerced to give confession statements. Therefore,
the findings recorded by Sessions Court cannot be said to be in any way
unacceptable or wrong.
33. The learned special public prosecutor has contended that Dw1 and Dw2
were not reliable witnesses and they have given false evidence in order to
support the accused. He further contended that the note Ex.D2 in Ex.D1 was
written in a different ink after the original writing was erased. He further
contended that Dw2 has given treatment to the accused from 22.12.1994 onwards
only and therefore the injuries might have been caused by some other source and
not because of the beating of the officers as alleged by the accused. However,
it is very pertinent to mention here, that Pw1 in his evidence admitted that
after the accused were remanded on 19.12.1994, custody was sought for by filing
petition and three days custody was ordered by the Court. He has not mentioned
the date of the petition and the date of the order. But the fact is that the
accused were remanded on 19.1.21994 and the first fifteen days expired on
02.01.1995. After that, the customs officers could not seek custody of the
accused. As per the jail records Ex.D4 and Ex.D6, the accused were in jail
hospital as in patients from 22.12.1994 to 02.01.1995. Therefore, it is quite
evident that the accused ought to have been taken custody on 20th December 1994
and reproduced before court on 22.12.1994 after the three days custody period
was complete. It is the duty of the prosecution to prove that the accused were
inside the prison on 20.12.1994 and 21.12.1994 also by letting evidence.
34. In this regard, the argument of the learned Special Public
Prosecutor requires to be considered. According to him, the deposition of Dw1,
Assistant Prison Officer, Central Prison, Madurai and Dw2, the doctor attached
to the jail are not acceptable and the jail records are not reliable due to
overwriting. It is submitted that the entry Ex.D2 in Ex.D1 appears to be over
writing and in different ink and therefore, it has been brought much later.
Secondly it was contended that even though jail authority has noted physical
injuries like contusions found on the accused at the time they were admitted to
prison after remand, the jail doctor examined them only 3 days later, that is,
on 22.12.1994, hence defence witness are not to be accepted.
35. But, on a careful consideration of the documents and the evidence of Dw1
and Dw2, this Court finds that the contention of the learned special public
prosecutor cannot be accepted. Both Dw1 and Dw2 are Government Servants. The
entries made were in the course of official duties and in a regularly kept
register. That the entry Ex.D2 is in different ink and therefore it must be a
later addition, made much later is also not acceptable since the entries are
made at different times. Entries are made as and when the prisoners are admitted
in jail and the entry will be made whoever was in prison during the job at that
particular time. Hence, difference in the colour of the ink could not be a
factor to discredit Ex.D2 in Ex.D1. The counsel for the accused has explained
that after remand they were taken into customs custody on the following morning
for 3 days and that is why after they came back to prison at the end of police
custody, the doctor examined them on 22.12.1994. Moreover, if the writings are
disputed, it is the prosecution which could have sent it for scientific analysis
by an expert. But the same was not done. The injuries noted are all shown to
have been caused when the accused were in the custody of customs authorities for
a period of 4 days. This circumstance taken together with other circumstances
pointed out, have been relied upon by the Sessions Court to come to the
conclusion that the statements of confessional nature recorded for A1 and A2 in
Ex.P41, 42, 48 and 49 as involuntary and therefore require to be eschewed
entirely is proper and correct conclusion.
36. The learned senior counsel for the respondents also contended that Pw-1
admitted in his cross examination that photographs of A1 and A2 were taken while
they were in their custody. However, the photographs were not produced before
the court. It is the contention of the learned senior counsel for the
respondents that A1 and A2 were severely beaten up particularly at the foot,
that they were unable to stand and they were made to lean against the wall and
photos were taken. Because of this reason, the officers have not produced the
photos to the court and therefore adverse inference should be drawn against the
prosecution. After going through the evidence of Pw1 and Dw1 and Dw2 and
considering the other circumstances mentioned above, the contention of the
defence counsel appears to be acceptable.
37. The next contention is that the seizure on 17.12.1994 was effected
only on the basis of the information furnished by A.1 and A.2 in their
statements dated 16.12.1994. The learned Senior Counsel argued that the seizure
was not effected based upon the statement Ex.P37 and Ex.P39 as stated by Pw4,
Pw1 and Pw10. The reason given by him cannot be brushed aside lightly. The
learned senior counsel for the accused has drawn the attention of this Court by
comparing Ex.P1 and Ex.P37 and Ex.P39. A bare perusal of these two documents
would prove that what were not found mentioned by A1 and A2 in Ex.P37 and Ex.P39
were mentioned in Ex.P1. In Ex.P1, the description of the cylinders was
mentioned as “7. feet long and 2. diameter”. This was not stated by A1 and A2
in Ex.P37 and Ex.P39. In Ex.P1 it was mentioned that “The cylinders are lying
with M/s.RTC Road Transport Corporation, Parcel service office near Peenya,
Bangalore. They also have an office in the city and a godown at Namangal”. This
averment was not available in Ex.P37 and Ex.P39. Similarly, in Ex.P1, it was
mentioned that “the cylinders containing the Mandrax tablets have wooden boards
under which the tablets are kept in plastic. Altogether there are 714 such
plastic bag.” This averment was also not found in Ex.P37 and Ex.P39. Therefore,
as rightly pointed out by the learned senior counsel for the accused the alleged
seizure on 17.12.1994 at South Eastern Roadways, 4th Main Tumkur Road,
Neelamangala, Bangalore was not based upon the statement of A1 and A2. Only in
order to implicate or connect A1 and A2 with the seizure of Mandrax tablets on
17.12.1994, Ex.P1 was created as if it was based upon Ex.P37 and Ex.P39.
Therefore, this court is of the considered view that the prosecution has
failed to prove that A1 and A2 had connection with the seizure on 17.12.1994 and
therefore there is no necessity to set aside the acquittal.
38. A bare perusal of the evidence of Pw7, the lorry driver who has
transported the 7 cylinders in his lorry from Surat to Bangalore would show that
he approached Mama Transport at Surat and enquired any goods to be transported
and he was told by Mama Transport Office that 7 cylinders were available for
transport to Bangalore. No one from Mama Transport was examined to prove the
fact who booked the 7 cylinders to Bangalore. Therefore, the evidence of Pw7 is
also not helpful to the prosecution case to establish any contact between the
transport of cylinders from Surat with A1 and A2.
39. The evidence of Pw1 does not inspire confidence and the manner in which he
conducted the search and seizure, the trial court has rightly rejected his
evidence as unbelievable. Firstly, he did not make any attempt to search the
godown on 16.12.1994 after he got the instruction from Pw11. He did not even
care to ask the staff of the Transport Office the relevant documents pertaining
to 7 cylinders. Secondly, he did not inform his superior officers about his
decision not to search the godown on 16.12.1994. Thirdly, he did not show the
search authorization to the staff of the transport on 16.12.1994 and the purpose
of his visit on 16.12.1994 in their godown. Fourthly, he enquired Ramachandra
of S.R.C at Bangalore and Ramachandra who told him that two persons made
enquiries about the consignment to take delivery of the same. However, no
investigation was conducted to find out who the two persons were.
40. The prosecution has marked the letter of Assistant Collector of customs
(Preventive), Tuticorin as Ex.P47. It is dated 22.12.1994. This letter was
addressed to Additional Collector of Customs, Bangalore. The letter mentions
about the sending of photographs of A1 and A2 along with the letter. There is
no explanation from the prosecution for what purpose this letter was marked as
Ex.P47. Probably they want to show the photographs to some witnesses for
identification purpose. However, no one was identifying A1 and A2 as the persons
who sent the consignment from Surat to Bangalore.
41. Therefore, the prosecution has not adduced any evidence to prove the
charges of conspiracy to manufacture and transport the Mandrax tablets from
Surat to Bangalore and the trial court has rightly acquitted the accused from
all charges. The prosecution has not established the involvement of A1 and A2
in the seizure at Bangalore.
42. This being an appeal against acquittal, unless the findings of the trial
court are perverse, highly unreasonable, based on no evidence or record or made
in ignorance of relevant evidence on record, this court is not inclined to
interfere with the findings of the trial court and will not set aside the order
of acquittal.
43. For the reasons stated above, I do not find any ground to interfere with the
well considered findings of the Sessions Court. Therefore, the judgment of the
Sessions court in acquitting the accused of all the charges is sustained. In the
result, this Criminal Appeal is dismissed confirming the judgement dated
28.5.1999 on the file of the Special District and Sessions Judge, Madurai, in
S.C.No.562 of 1995. The material objects concerned in this case shall be
confiscated by the Government after the Appeal period is over or Appeal if any
is over.
gkv
Copy to:
1. The Spl.District and Sessions Judge
(NDPS Act Cases) Madurai.
2. The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.