BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25/01/2008 CORAM THE HONOURABLE MR.JUSTICE S.ASHOK KUMAR Crl.A.(MD).No.976 of 1999 The Superintendent of Central Excise Customs Preventive Unit, Tuticorin. ... Appellant Vs 1. Prem Pratap Singh Sisodia alias Prem Singh Sisodia alias Prem Pratap Sisodia 2. Anil Bhai Balwant Rai Desai 3. D.Jeyaseelan (died) 4. D.Amalraj ... Respondents Prayer Criminal Appeal is 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 S.C.No.325 of 1995. !For Appellants ... Mr.C.Arulvadivel alias Sekar ^For Respondents ... Mr.B.Kumar, S.C., for Mr.K.Chandrasekar Mr.N.Mohideen Basha for R.4 :JUDGMENT
The State, represented by Superintendent of Central Excise Customs
Preventive Unit, Tuticorin, has preferred this appeal against the acquittal of
the respondents herein for the alleged offences under sections 8 (c), 22, 29 of
NDPS Act and section 135A of customs Act passed by the Special District and
Sessions Court (The Narcotic Drugs and Psychotropic substances Act Court),
Madurai in C.C. No.325 of 1995. During pendency of this appeal, the 3rd
respondent died.
2. The charges against the respondents who had been arrayed as A1 to A4
before the trial court was that on the basis of an information the officers
attached to customs Sea Base Party, Tiruchendur and Divisional Preventive Unit,
Tuticorin conducted search in the thorny bushes situated on the seashore of
Odakarai adjacent to Kayalpattinam on 23.11.1994 and recovered 48 HDPE bags
which contained 50 numbers of polythene packets. Each packet contained brown
coloured Mandrax tablets with mark “M” one side and swastick on the other side.
The seized goods were brought to customs office at Tuticorin and on examination
the Mandrax tablets found to weighing 1462.5 kg. Representative samples were
taken and sent to customs House, Madras for chemical analysis and the report
dated 29.11.1994 confirmed each sample answered test for methaqualone. Again on
information, on 03.12.1994, the officers went to the spot of Odakarai Seashore
near Kayalpattinam and searched the thorny bushes and recovered one HDPE bag
which contained Mandrax tablets in small 50 polythene packets weighing about 50
kg. It was seized under Mahazar. As a follow up action, the officers searched
Jayalakshmi Rice Mill at Manalkundu Alwarthirunagar on the night of 12.12.1994
in the presence of its owner V.Gothandraman and recovered 6 circular shaped
plywood planks from a pit aside a bushy area in the open place of the Rice Mill.
These wooden planks were found to be used for concealment of Mandrax tablets
kept inside the cylinders. A statement obtained from Gothandaraman revealed
that on 01.11.1994, his relative Amal @ Amalraj of Moolakarai brought 7
cylinders to the Rice Mill and subsequently when he was out of station, cut
open the cylinders and removed them from the Rice Mill. He handed over Invoice
No.168 dated 21.10.1994 of M/s.Mehul Agencies in which the consignee name was
mentioned as M/s. Meenakshi Enterprises, Tuticorin which was later found to be
fictitious. The invoice was handed over by the said Amalraj to Gothandaraman.
A1 and A2 were apprehended on 15.12.1994 at Patel Roadways Office, Tuticorin
with regard to the seizure of Mandrax tablets in 7 cylinders on 12.12.1994 and
relevant documents were seized from them and statements dated 17.12.1994 and
18.12.1994 were recorded from them in which they admitted that they sent 7
cylinders containing Mandrax tablets with fictitious consignor M/s. Mehul
Agencies, Surat and consignee Meenakshi Enterprises to Tuticorin as the
consignment Note No.437232 dated 21.10.1994 and Invoice No.168 dated 21.10.1994.
The said 7 cylinders were taken delivery by Dharmalinga and Amalraj of
Moolakarai on 01.11.1994 from Patel Roadways Office, Tuticorin and transported
them to Jayalakshmi Rice Mill and cut open the cylinders, removed the Mandrax
tablets and packed in 100 gunny bags and took them to Odakarai Sea shore with
the help of A3 and A4, Dharmalingam loaded 50 bags in a Vallam on 21.11.1994
belonged to A3 and A4 and loaded 50 bags of Mandrax tablets in another Vallam of
Vathe Nasreen and proceeded to the Ship anchored in the sea. The Vallam of
Vattu Nasreen with 50 bags containing Mandrax tablets returned to Odakarai
seashore without reaching the ship because of rough sea. Thereafter, the 50
bags were unloaded at the Odakarai seashore and concealed in two different
places in the throny bushes which were seized by the officers. A3 and A4 were
apprehended on 01.02.1995, statements were recorded from them and remanded to
custody on 02.02.1995. Dharmalingam and Amalraj of Moolakarai were absconding
and not arrested and not made as accused. Therefore, the accused had committed
the offences under section 8 (c) punishable under section 22 and 29 of NDPS Act
and section 135 A of customs Act.
3. Accordingly, charges were framed and when the accused were questioned about
the same, they denied having committed any of the offence charged against them.
Hence the trial was conducted by the Sessions Court.
4. On behalf of the prosecution Pw1 to Pw17 were examined and several documents
were marked as Ex.P1 to Ex.P60.
5. PW-1, Khader Rehman, Assistant Commissioner of Customs, preventive, Tuticorin
has stated in his evidence that on 23.11.1994, he received an information report
Ex.P2 from Pw13, P.Ganesan, Inspector in charge customs Sea Base Party,
Trichendur. After that, he along with officers rushed to seashore of Odakarai
and recovered after search of the throny bushes, 48 HDPE bags of Mandrax
tablets. They were seized under Mahazar and handed over the same to Pw2 for
further action. A report under section 57 was submitted to J.K.M. Sekar, Addl.
Commissioner Customs on 24.11.1994 and it was Ex.P3. Again on 03.12.1994, on
information he along with officers conducted search in thorny bushes of Odakarai
seashore and recovered one bag containing 50 polythene packets totally weighing
30 kg. It was seized under Mahazar Ex.P4, Pw2 filed a report under section 57 to
Pw1 and it was Ex.P5. On 12.12.1994, one Muthukrishnan, Inspector CPU, Tuticorin
filed an information report to DRI about the availability of contraband in the
premises of Patel Roadways, Tuticorin and Pw1, along with officers rushed to the
spot and seized 7 cylinders of Mandrax tablets along with connected documents
Exs.P7,8 and 9 under Mahazar Ex.P6. On 15.12.1994, Pw12 submitted Ex.P11, Ex.P12
with a covering letter Ex.P1. Pw2 apprehended A1 and A2 on 15.12.1994 from the
premises of Patel Roadways and recovered certain documents and they were brought
to customs office and some documents were seized in the presence of Pw1. Section
57 reports of Pw2 were marked as Ex.P13 and Ex.P14.
6. PW-2,Gnansekaran, Superintendent, of Customs Preventive Unit, Tuticorin
corroborated the evidence of Pw1 with regard to the seizure of Mandrax tablets
on 23.11.194 and 03.12.1994 and stated about the sending of the Mandrax tablets
for chemical laboratory test Ex.P17 and the report Ex.P18. Pw2 examined Pw4 and
Pw5 on 01.12.1994 who had spoken about Dharmalingam. Their statements under
Ex.P19 and Ex.P20 were also recorded. One Mookandi was also examined and his
statement Ex.P21 was also recorded. The seized 48 bags were deposited to a
godown at Madurai on 07.12.1994 and the deposit memo was Ex.P27. The deposit
memo of one bag was Ex.P28. Pw2 stated about the seizure of 7 cylinders and the
connected documents at Patel Roadways Office, Tuticorin on 12.12.1994 and the
Mahazar was Ex.P6. The report under section 57 was Ex.P29. Pw2 stated about
the search and seizure of six circular shaped plywood planks and the invoice
Ex.P30 at Jayalakshmi Rice Mill on 12.12.1994 under Mahazar Ex.P32. On
13.12.1994, Pw3 was examined. His statement was recorded under Ex.P33. Pw7 was
examined and his statement under Ex.P35 was recorded from him. Rajamani, Patel
Roadways Manager was examined and his statement in Ex.P36 was recorded. On
13.12.1994, Ex.P36, 37 and 38 were recovered from Patel Roadways Office under
Mahazar Ex.P39. On 15.12.1994, Pw8 was examined and his statement Ex.P41 was
recorded. Under Mahazar Ex.P42, some more documents were seized from A1 and A2.
On 16.12.1994, Pw6 was examined and he identified A2 as the person who has given
the documents to him on 21.10.1994 at Surat and signed on the photo of A2 M.O.8.
His statement was Ex.P44. One Renganathan was examined and his statement Ex.P45
was also recorded. A1 and A2 were examined on 17.12.1994 and 18.12.1994 and
their statements are Ex.P46 and Ex.P47. Both A1 and A2 were arrested on
18.12.1994. The arrest memos are Ex.P48 & 49. The report under section was
Ex.P13. On 01.02.1995, A3 and A4’s statements in Ex.P50 and 51 were recorded. On
02.02.1995, further statements in Ex.P52 and 53 were recorded from A3 and A4.
The arrest memos of A3 and A4 are Ex.P54 and 55, dated 02.02.1995 and the remand
report was Ex.P.56. Pw2 filed complaint Ex.P58 on 27.03.1995. The connected
accused were not arrested since they were absconding all along. Pw2 admitted
that A1 and A2 were under their custody from 15.12.1994 to 19.12.1994 and also
admitted presence of several persons and officers and sepoys on those dates
except 19.12.1994 during the interrogation of A1 and A2. He also admitted that
photos of A1 and A2 were taken, two statements were recorded on 04.01.1995 and
12.01.1995 from A1 and A2 in which they denied their connection with the seizure
of Mandrax tablets and the documents seized on 12.12.1994 at Patel Roadways in
which the signature G.Rana was found was not sent for any expert for comparison
purpose. Pw2 also admitted that the signatures of A3 and A4 were not found in
their statements and the person Amalraj of Moolakarai who has unloaded 7
cylinders in the Rice Mill Jayalakshmi was not 4th accused. Both were
different and the Amalraj of Mollakarai mentioned in the statement of Pw7 was
still absconding. Pw2 also admitted that A3 and A4 were under their custody on
01.02.1995 and 02.02.1995 and their statements were word by word one and the
same, except the names. Pw2 admitted that no coercive steps under law were
taken against Dharmalingam to attach and seize his properties. Pw2 also
admitted that the seizure in C.C.No.113/95 was later in point of time to the
seizure in the present case C.C. No.325/95 and as per their investigation,
Dharmalingam and Amalraj had taken delivery of 7 cylinders in the present case
C.C.No.325/95 and the names of Dharmalingam and Amalraj were mentioned in the
information in C.C. No.113/95 to take delivery of cylinders from Patel Roadways.
However, both Dharmalingam and Amalraj were not shown as accused in C.C.
No.113/95 as well as in C.C. No.325/95.
7. PW-3, Jalasteen @ Gandhi, working as loadman in Patel Roadways, Tuticorin has
stated that he loaded 7 cylinders from Patel Roadways Office and unloaded the
same in Jayalakshmi Rice Mill, Alwarthirunagari. His statement was recorded
under Ex.P.33 on 13.12.1994.
8. PW-4, Sekar @ Chandrasekar, who worked for Dharmalingam earlier for his
illegal activities of smuggling of gold and narcotic tablets has stated that he
knew A3 and A4. His statement was recorded in Ex.P19 on 01.12.1994.
9. PW-5, Madhavaraj @ Madhavan has corroborated the evidence of Pw4. His
statement was recorded in Ex.P20.
10. PW-6, Sivaraj, lorry driver who has driven the lorry containing 7 cylinders
started from Surat on 21.10.1994 to Tuticorin on 24.10.1994 has deposed that the
bill and invoice were handed over to him by A2 at Surat. He identified A2. He
further stated that the photos of A2 was shown to him and signed on it which is
M.O.8. His statement was recorded in Ex.P44.
11. PW-7, Gothandaraman, owner of the Jayalakshmi Rice Mill, Alwarthirunagari
has stated about his relative Amalraj of Moolakarai who loaded 7 cylinders in
his mill on 01.11.1994 and the cutting open of the cylinders and removal of the
same in his absence and the invoice Ex.P30 which was handed over by the said
Amalraj to him. He signed in the Mahazar, Ex.P32. His statement was recorded in
Ex.P35 on 13.12.1994. He admitted that the invoice was with him from 01.11.1994
to 12.12.1994 and he did not go to police even though he sensed some illegal
activities have taken place in his Rice Mill. He also stated that the said
Amalraj was not A4.
12. PW-8, V.V.Subramaniam, Branch Manager, Patel Roadways, Tuticorin has stated
about the search and seizure of 7 cylinders and the documents under Mahazar
Ex.P6, dated 12.12.1994. Earlier on 24.10.1994, one consignment of 7 cylinders
were taken delivery by one Dhanraj on 01.11.1994 from Patel Roadways Office.
His statement was recorded in Ex.P41 on 15.12.1994.
13. PW-9, Chinnasamy, Customs Inspector, Tuticorin has stated about the search
and seizure of one bag of Mandrax tablets at Odakarai on 03.12.1994 and the
seizure of documents Ex.P37, 38 from Patel Roadways on 13.12.1994 through a
Mahazar Ex.P39.
14. PW-10, Niranjan Shah, Assistant Manager, Patel Roadways, Bangalore has
stated about the seizure of documents from two North Indians under Mahazar
Ex.P42 dated 15.12.1994. He stated that the documents were seized from the pant
packets of the two persons and from hand bag. He could not identify the two
persons in the court. His statement was recorded in Ex.P36.
15. PW-11, Johnson, one of the Mahazar witnesses in Ex.P42, dated 15.12.1994 has
corroborated the evidence of Pw10. However, he could not identify the two
persons in the court. Therefore, he was treated as hostile.
16. PW-12, Virapaksham, Branch Manager, Patel Roadways, Madurai has stated about
the seizure of documents under Mahazar Ex.P42 and Ex.P39. He could not identify
the two North Indians in the court.
17. PW-13, P.Ganesan, Customs Inspector, Tuticorin has stated about the receipt
of two informations on 23.11.1994 and 03.12.1994 and conveyed the same over
phone to Pw1 and Pw2. He prepared an information reports Ex.P2 and Ex.P59. He
was one of the witnesses for the seizure of Mandrax tablets on 23.11.1994 and
03.12.1994 at Odakarai. He recorded the statement of A3 which was marked as
Ex.P50.
18. Pw14, V.Ganesan, is one of the witnesses for the seizure of Mandrax tablets
under Mahazar Ex.P1.
19. Pw15, Subbulakshmi, Chemical Examiner has stated about the receipt of
samples on 25.11.1994 and the report is marked as Ex.P.18.
20. PW-16, Thirugnanasundaram, Inspector, Customs Preventive Unit, Tuticorin is
one of the Witness to the Inventory Mahazar Ex.P15 and Mahazar Ex.P42. He
recorded the statements of A3 and A4. They are Ex.P52 and 53. He has stated
about surveillance of Patel Roadways Office from 12.12.1994 to 15.12.1994.
21. PW-17, D.K.Bansal, Assistant Chemical Examiner, Central Revenue Control
Laboratory, New Delhi has stated about his lab report Ex.P25 dated 14.12.1994
and Ex.P26 dated 14.12.1994.
22. When the accused were questioned under section 313 Cr.P.C., with reference
to the incriminating materials found against them, they denied having committed
any of the offence charged and their complicity in the case.
23. On behalf of the accused, DW-1, S.Thangam, Assistant Prison Officer, Madurai
and DW-2, Dr.K.sundararajan, Prison Doctor, Madurai were examined and the prison
records were marked as Ex.D1 to Ex.D6.
24. 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 night 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 mentions 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.
25. 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 by A1 and A2. 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 the Chief
Medical Officer and 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
the Chief Medical Officer and seen by him and was advised to take same line of
treatment.
26. The learned Special Judge after analysing the evidence, both oral and
documentary available on record and after hearing the counsel appeared on both
sides had acquitted the respondents herein of all offences on various grounds.
Aggrieved of the said acquittal, this appeal is preferred by the Customs
Department.
27. The learned special public prosecutor, appearing of the Department,
vehemently argued that (i) the confession statements of A1 and A2 which were
marked as Ex.P47 ought not to have been rejected as involuntary by the trial
court and the statement of A2 connected the consignment that came to be seized
by the customs offices covered the invoice Ex.P8 which was seized from Patel
Roadways and also from the Rice Mill of Pw7, (ii) the trial court failed to
consider the identification of A2 by Pw6 as the person who had consigned the 7
cylinders from Surat to Tuticorin, (iii) A3 and A4 had given their confession
statements under Ex.P50 to Ex.P53 and therefore the same ought not to have been
rejected as involuntary, (iv) the evidences of Pw6 and Pw7 are genuine and ought
not to have been rejected by the trial court.
28. On the other hand, the learned Senior Counsel Mr.B.Kumar for the accused
would strenuously argue that the prosecution has miserably failed to its case
and therefore the trial court has rightly acquitted the accused.
29. In the above circumstances, we have to consider whether the confession
statements Ex.P46 and Ex.P47 are voluntary in nature and are admissible in
evidence.
30. 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.
31. 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.
32. 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.
33. 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.
34. 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.
35. 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.
36. 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.
37. 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 and 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- State 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.
38. 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.
39. 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.
40. 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.
41. 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.
42. 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.
43. 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.
44. 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.
45. The contention of the prosecution is that A3 and A4 had given
statements in which they admitted their act of loading and unloading of bags
containing Mandrax tablets in their vallam to the ship as directed by one
Dharmalingam and subsequent concealment of 50 bags in the thorny bushes at the
seashore of Odakarai. It is also contended that A3 and A4 also identified the
seized goods in the customs office on 02.02.1995. The voluntary nature of their
statements are highly doubtful because both A3 and A4 were in the custody of the
officers on 01.02.1995 and 02.02.1995 and the statements were obtained when they
were under illegal custody. Except the names of A3 and A4 in Ex.P50 and 53, it
is admitted by Pw2 and Pw17 that all other words and sentences were one and the
same. Further, A3 and A4 had not signed in the alleged confession statements.
It is admitted by Pw2 in his evidence at page 54 of his cross examination thus
“In the statement of A3 and A4 there is no signature of A3 and A4”. So Ex.P50
to 53 which are projected as statements of confessional in nature, are not
statements of A3 and A4 at all. They are wholly inadmissible. It is the case of
the prosecution that A3 and A4 have shown the seized goods on 02.02.1995 and
they identified them. The seized goods ought to have been sealed on the date of
seizure on 23.11.1994 and 03.12.1994 itself and kept in the godown. Unless the
seal was broken and the bags were opened, the tablets could not have been seen
by A3 and A4 and identified by them. If the prosecution contends that the bags
alone were identified still it is very much necessary to examine the godown
keeper to support the version of Pw2. But, no such evidence was given.
Therefore, looking from any point of view, the alleged confession statements of
A3 and A4 cannot form the basis to convict them. Moreover, A3 had died after
acquittal by the Court below.
46. The next contention of the public prosecutor is that the evidence of Pw7
and his landing over of the invoice Ex.P8 in which the name G.T. Rana was found
would prove the connection of A2 with the seizure at Odakarai. First of all, the
evidence of Pw7 is not believable. He has kept Ex.P8 in his possession from
01.11.1994 till the officers conducted search in his Rice Mill on 13.12.1994,
even though on 03.11.1994 itself he sensed that his relative Amalraj of
Moolakarai has committed some illegal act in his Rice Mill. But, he has not
chosen to make a complaint to the police or tried to verify and inform to the
consignee Meenakshi Enterprises as mentioned in Ex.P8. Therefore, his conduct
was unnatural and his evidence cannot be considered as genuine and on that basis
we cannot come to the conclusion that the seizure of Ex.P8 was effected in the
Rice Mill of Pw7 and thereby the connection of A2 with the seizure at Odakarai
stands proved. The trial court has rightly rejected the evidence of Pw7.
Moreover, prosecution has not sent the signature found in Ex.P8 for any
handwriting expert to establish that it is only A1 or A2 has signed under the
assumed name G.T.Rana.
47. The reasons given by the trial court to reject the evidence of Pw6 is
also acceptable because the trip sheet and lorry rent receipt which were the
core documents to prove the version of Pw6 that he only drove the lorry from
Surat to Tuticorin were not seized by the officers. The identification of A2 by
Pw6 is also not admissible for the simple reason that the photograph of A2 was
already shown to him in customs office on 16.12.1994 and no identification
parade was conducted. Therefore, showing photograph and identifying on it by
the witness is not admissible in evidence. The decision of the Hon’ble Supreme
Court in D.Gopalakrishnan -vs- Sudanand Naik reported in AIR 2004 SC 4965, was
relied upon by the learned senior counsel in support of his contention.
48. Pw4 and Pw5 in their statements Ex.P19 and Ex.P20 recorded on 01.12.1994
admitted that they were assisting one Dharmalingam in his smuggling activities
of gold and loading and unloading of Mandrax tablets from Kayalpattinam Seashore
on earlier occasions. The address of Dharmalingam was specifically mentioned in
their statements. But there is nothing to show that the customs officers had
taken any steps to apprehend Dharmalingam and Amalraj of Moolakarai or to take
coercive steps under law to attach their properties. It is also admitted by Pw2
in his evidence that the information received in C.C.No.113/95 mentions the
names of Dharmalingam and Amalraj as the persons going to come and take delivery
of 7 cylinders from Patel Roadways, Tuticorin. Still it is curious to note that
the officers did not chose to implicate Dharmalingam and Amalraj of Moolakarai
as accused both in this case as well as in C.C. No.113/95. There is no
explanation given by Pw2 in his evidence as to why they have not impleaded
Dharmalingam and Amalraj of Moolakarai as accused. That casts a doubt on the
genuineness of the prosecution case.
49. The learned special judge at the time of framing charges has framed a
charge that A1 and A2 conspired in manufacturing the psychotropic substance
Mandrax tablets and are liable to be punished under section 29 of NDPS Act. But
there is no evidence adduced by the prosecution to prove the charge of
conspiracy to manufacture Mandrax tablets or the manufacture of Mandrax tablets.
Since, it is held that the prosecution has not proved the case, the trial court
has rightly acquitted all the accused from all the charges.
50. 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.
51. 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
trial 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.325 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.