IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 1270 of 2003(A)
1. JOSEPH MICHEAL RAJAMANI FERNANDO,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY A
... Respondent
For Petitioner :ADV.LIJU V STEPHEN(STATE BRIEF)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.THANKAPPAN
Dated :11/01/2007
O R D E R
K. THANKAPPAN, J.
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Crl.A.No.1270 OF 2003
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Dated this the 11th day of January, 2007.
J U D G M E N T
Appellant is the 1st accused in S.C.No.151/1998 on the
file of the 1st Additional Sessions Court, Trivandrum. The
prosecution allegations against the appellant are as follows:
In furtherance of a criminal conspiracy hatched between
A1 and A3 in Sree Lanka, A1 came to India from Sree Lanka
on 20.3.1998 with the intention to illegally export narcotic
drugs from India to Sree Lanka. A1 checked into room No.308
of Om Tourist Home at Thampanoor, Thiruvananthapuram on
20.3.1998 itself. Thereafter A1 informed his house about his
stay at the said tourist home. After making enquiries about
the stay of A1, A3 came to Thiruvananthapuram and met A1 on
22.3.1998 in his room. A3 was then having in his possession a
bag containing narcotic drug which has to be sent to Sree
Lanka, and packing materials like cellotapes, black leather
sheets and also an electronic weighing machine. A1 had
purchased a soldering iron for packing the narcotic drug as
per the directions of A3. In room No.308 of Om Tourist
CRL.A.NO.1270/2003 2
Home, A3 weighed the narcotic drug he had brought with the
help of electronic weighing machine in the presence of A1 and
together they concealed the narcotic drug in a black coloured
bag, with the help of polythene, cellotapes and resin.
Thereafter A3 left after informing A1 that he would send
somebody to take the same to Sree Lanka and that A1 should
contact his residence on 23.3.1998. Accordingly, A1 rung up
his residence in the night of 23.3.1998 from where he was
informed by his family members that a friend of A3 has passed
on a message that a lady would be come to
Thiruvananthapuram by Air Lanka Flight on 23.3.1998. The
colour of the dress the lady would wear and her features were
also informed. Accordingly, A1 went to the
Thiruvananthapuram Air Port and the lady who is A2 herein
and took her to Hotel Thamburu in room No.405. The said
room was taken in the name of A1. The sole intention of A1
was to illegally export the narcotic drug kept concealed
inside the black coloured bag through A2. A2 had come down
to Thiruvananthapuram from Sree Lanka as instructed by one
Antony Joseph who is her brother who had promised her that
A1 would help her financially if she could carry some trade
CRL.A.NO.1270/2003 3
goods on behalf of A1 from Thiruvananthapuram to Sree
Lanka. While A2 was staying in the said Hotel, A1 informed
her that on 27.3.1998 she will have to proceed to Sree lanka
with a bag which would contain some trade items and that the
said bag should be handed over to a person who approach her
at Colombo Air Port.
2. On the above allegations, a charge was framed against
the appellant and the 2nd accused under Sections 21, 23, 29
and Section 135 of the Customs Act, 1962. As the 3rd
accused was reported absconding, the appellant and the 2nd
accused faced trial. To prove the case against the appellant
and the 2nd accused, the prosecution examined Pws 1 to 8
and relied on Exts.P1 to P21. MOs 1 to 5 were also produced.
On the closing of the prosecution evidence, the appellant and
the other accused were questioned under Section 313 of the
Code of Criminal Procedure. The appellant denied the
allegation levelled against him and had stated that on
26.3.1998, the 3rd accused came to his room and told him
that he had a bag with him as more than the excess quantity
permissible to carry in the plain and he had asked that
CRL.A.NO.1270/2003 4
whether the appellant could carry the bag in the plain. The
appellant further had stated that he had stated to the 3rd
accused that he was having enough luggage with him. The
3rd accused asked him whether he could take the bag up to
the Airport and to handover the same to another. Further the
appellant had stated that the 3rd accused came to his room on
27.3.1998 in the early morning and entrusted a bag to him
and said that the bag would be collected at the Airport by one
Balamurukan. The appellant agreed to carry the bag up to
the Airport and when the appellant and A2 were waiting at
the Airport for the said Balamurugan, Customs Officers came
there and asked about the bag and the contents therein. He
said that his bag contained only cloths and the 3rd accused
had given a bag to him to handover to Balamurugan. Then
the Customs Officers asked him whether they could check the
said bag and the appellant agreed for that. However, the
Customs Officers questioned him about the bag entrusted by
the 3rd accused. When the Customs Officers insisted for
checking of the bag entrusted by the 3rd accused, the
appellant said that, that shall be done only on coming
Balamurugan or the 3rd accused. But the Customs Officers
CRL.A.NO.1270/2003 5
threatened him and had taken the bag and thereafter the
Customs Officers had got his signature and he and the 2nd
accused were produced before the court and they were sent
to jail. However, on relying on the evidence adduced by the
prosecution, the trial court found that the 2nd accused is not
guilty of any of the offences charged. But the trial court
found the appellant guilty under Sections 21 and 30 of the
NDPS Act, 1985, and he was convicted thereunder and
sentenced to undergo R.I for ten years and a fine of Rs. One
lakh with default sentence of fine a further period of R.I for
one more year and he was further sentenced to undergo R.I
for five years and a fine of Rs.50,000/= with default sentence
of R.I for a period of six months under Section 30 of the
NDPS Act. However, the trial court directed that the
substantive sentences shall run concurrently. The benefit of
Section 428 was also allowed to the appellant. The above
conviction and sentences are challenged in the appeal.
3. Since the appeal is filed through the jail authorities and
the appellant is not having a counsel of his own choice, a
State brief member has been appointed to argue the case for
CRL.A.NO.1270/2003 6
the appellant. This Court heard the counsel appearing for the
appellant as well as the learned Public Prosecutor. The
counsel appearing for the appellant raised three contentions
before this Court. Firstly, the learned counsel submitted that
the trial court went wrong in placing reliance on the evidence
adduced by the prosecution to find the appellant guilty under
Sections 21 and 30 and as there was no independent and
reliable evidence to prove the case against the appellant.
Secondly, the learned counsel submitted that the trial court
committed serious error in finding the appellant guilty of the
offences only on the basis of Ext.P21 confession statement as
the confession statement has not been recorded as per the
provisions of the Criminal Procedure Code and the provisions
of the NDPS Act. Thirdly, the learned counsel submitted that
the sentence awarded against the appellant is excessive.
4. The prosecution examined Pws 1 to 4 to show that on
27.3.1998 the appellant and the 2nd accused were found at
the Trivandrum International Airport with MOs 1 to 5 and
thereafter the appellant and the 2nd accused were questioned
by PW1. Body of the appellant and the 2nd accused had been
CRL.A.NO.1270/2003 7
searched in the presence of a Gazetted Officer as
contemplated under Section 50 of the NDPS Act. Further the
prosecution had proved that the appellant had given Ext.P21
statement under Section 67 of the N.D.P.S. Act to PW1 which
was recored by PW1 as the officer authorised under Section
42 of the NDPS Act. Further the prosecution had tried to
establish that the appellant and the 3rd accused entered into a
conspiracy at Sree Lanka and in consequence of that
conspiracy, the appellant and the 3rd accused came to India
and thereafter the appellant and the 3rd accused had obtained
MO1 bag and filled up the same with the contraband article
namely Morphine weighing about 1218.75 grams of heroin.
PW1 was the Air Customs Intelligence Superintendent during
the relevant time. He had given evidence before the court
that on 27.3.1998 while he was waiting at the International
Airport, Trivandrum, the appellant and the 2nd accused came to
the Airport at about 9 a.m and he got the information that the
appellant and the 2nd accused were having narcotic drugs
with them. After recording the information in DRI form
No.1 and entrusted the same to the Assistant Commissioner
of Customs, who was the immediate Superior Official.
CRL.A.NO.1270/2003 8
Ext.P1 is the copy of the same information. According to this
witness, A1 and A2 came to the Trivandrum Airport at
about 10.30 a.m and they came to the X-ray counter of
International Airport and brought their luggages for the X-ray
test. PW1 along with PW2 and other two witnesses went near
the appellant and the 2nd accused and identified himself as
the Air Customs Intelligence Superintendent and asked about
the Passport and other travel documents of A1 and A2. It was
understood that the appellant came to India on 20.3.1998 and
the 2nd accused came to India on 24.3.1998. Both the
appellant and the 2nd accused were having their air tickets to
Sree Lanka on 27.3.1998. Approaching the appellant and
A2, PW1 asked them whether their bags contained any
contraband article. They have answered that nothing with
them. However, PW1 asked the appellant and the 2nd accused
that he wants to make a search of the body of the appellant
and the 2nd accused. Further he asked that whether they
want the presence of any Gazetted Officer or Magistrate as
required under Section 50 of the NDPS Act. To this question
both the appellant and the 2nd accused said that they want
the presence of two witnesses. Pws 2 and 3 were also present
CRL.A.NO.1270/2003 9
at the time when the appellant and the 2nd accused were
questioned and prepared Ext.P2 seizure mahazar. On
preparing Ext.P2 mahazar, MOs 1 to 5 were recovered from
the appellant and the 2nd accused. Subsequently, the
appellant had given Ext.P5 (Ext.P21) under Section 67 of the
NDPS Act and thereafter at about 11.30 the appellant and the
2nd accused were arrested. This witness has further stated
that he continued further investigation of the case and sent
Ext.P11 report to PW4, the Additional Commissioner of
Customs at Trivandrum Airport. This witness has stated
that further investigation of the case has been conducted by
PW 5. This witness has further stated that PW7 recorded
Ext.P5 statement in Tamil and translated the same into
English as Ext.P21. PW8, the Additional Superintendent of
Customs, Trivandrum, had stated that he continued the
investigation and questioned other witnesses in the case. He
completed the investigation and complaint was filed before
the court. PW2 is the witness, who accompanied PW1, while
the appellant and the 2nd accused were questioned and at the
time of preparation of Ext.P2 mahazar by PW1. He had stated
that he attested Ext.P2. PW3, the other witness who had
CRL.A.NO.1270/2003 10
proved that he was also present on 27.3.1998 when PW1
questioned the appellant and the 2nd accused. This witness
has further stated that he was also present when PW1
prepared Ext.P2 seizure mahazar. PW4, who was the
Additional Commissioner of Customs during the relevant time,
had given evidence before the court that PW1 was his
subordinate and on 21.3.1998 he had received a report –
Ext.P12 from PW1. PW5 was working as the Superintendent
of Central Excise, Trivandrum and he had stated that he
searched the Om Tourist Home at Trivandrum and prepared
Ext.P19 mahazar. PW6 was examined to prove that he had
sent the samples for chemical analysis and had obtained
Ext.P20 chemical report from C.R.C.L, New Delhi and
according to him, Ext.P20 reveals that the sample is Acetyl
Morphine of 48.5%. According to this witness, he had received
the sample from PW1 and sent the sample for testing and
got the result. PW8 was working as the Additional
Commissioner of Customs, Trivandrum. He had also given
evidence before the court that as per the information and the
report furnished by PW1 it is revealed that on 27.3.1998 PW1
had detected the offence against the appellant and the 2nd
CRL.A.NO.1270/2003 11
accused. He had further stated that PW7 had filed a report
with regard to the action he had taken at the Airport while
the appellant and the 2nd accused were questioned. This
witness has further stated that he had continued the
investigation of the case and filed final charge against the
appellant and the 2nd accused. Relying on the above evidence,
the trial court found the prosecution had succeeded in
proving the case against the appellant that he had in
possession of 1218.75 grams of Morphine (heroin) out of which
PW1 had taken sample and got analysed and as per Ext.P20
report it was established that the sample is Acetyl Morphine
of 48.5 %. From the evidence adduced by the prosecution,
it was proved that the appellant had made certain
preparations to export Morphine substances from India to
Sree Lanka and had brought the same to the Airport. But
due to the interference of PW1 and the Customs Officers,
that was not exported to Sree Lanka. Hence, the appellant had
also committed an offence punishable under Section 30 of the
NDPS Act. On the above finding, the trial court correctly
came to the conclusion that the prosecution had succeeded in
proving that the appellant had committed the offences
CRL.A.NO.1270/2003 12
punishable under Sections 21 and 30 of the NDPS Act.
5. In the light of the contentions raised by the learned
counsel, this Court considered the evidence of the prosecution
witnesses once again. On an over all appreciation of the
entire evidence adduced by the prosecution, it could be seen
that the trial court is fully justified in holding that the
appellant was found in possession of MO1 black bag which
contained 1218.75 grams of Morphine. Hence, this Court is of
the view that appreciation of the evidence and the findings
entered by the trial court are fully justified. The second
contention is that no evidence was adduced by the
prosecution other than Ext.P5 (Ext.P21 statement which has
been recorded under Section 67 of the NDPS Act) to find the
appellant guilty of the offence. The learned counsel
appearing for the appellant contends that a reading of
Ext.P21 would not show that the above statement was
recorded in accordance with Section 28 of the Evidence Act.
The learned counsel is of the view that Ext.P21 can be
considered as a confession statement given by the appellant
while he was in the custody of PW1 and other Customs
CRL.A.NO.1270/2003 13
Officials. Hence, it is the duty of the prosecution to prove that
the statement has been recorded by PW1 after clearing of any
inducement or threat as per Section 28 of the Evidence Act. In
this context, the learned counsel submits that the prosecution
has actually failed to prove that the appellant was having in
possession of MO1 bag with the knowledge that the bag
handed over by A3 contained contraband article alleged to
have been seized by PW1. To substantiate this contention, the
learned counsel relied on a judgment of the Apex Court
reported in Narcotics Control Bureau, Jodhpur v.
Murlidhar Soni (2004(5) SCC 151). In the above judgment,
the Apex Court had held that the prosecution to show that the
accused is in conscious possession of the contraband. The
Apex Court had considered the factual situation in that case
where the father of the accused came with a bundle of cloths
and the accused took his father on a motor bike without
knowing that the cloth bundle contained the contraband
article and prosecution had not placed any material to show
that the accused was in conscious possession of the
contraband and hence, the Apex Court held the above view.
In this context, the case set up by the prosecution that the
CRL.A.NO.1270/2003 14
appellant was found in possession of the contraband article is
on the basis of Ext.P5 statement given under Section 67 of the
NDPS Act. The contention of the learned counsel that since
Ext.P21 is a confession statement, it is the duty of the
prosecution to prove that the statement was recorded in
accordance with the provisions of Section 164 of the Cr.P.C
and Section 28 of the Evidence Act. For such a contention,
the statement recorded by PW1 under Section 67 of the NDPS
Act shall be considered as a confession statement recorded
under Section 24 of the Evidence Act and Section 164 of
Cr.P.C. The contention of the learned counsel is that Ext.P5
(Ext.P21) statement was given by the appellant when he was
under the custody of PW1 and other Customs Officials.
Hence, it has to be considered as a confession statement given
by an accused as contemplated under Section 24 of the
Evidence Act while he is in custody. In this context, the
specific case of the prosecution is that after questioning the
appellant and the 2nd accused, PW1 had recorded Ext.P5
statement of the appellant at about 9.15 on 27.3.1998
whereas Ext.P8 arrest memo would show that the appellant
and the 2nd accused were arrested only after 11.30. Hence,
CRL.A.NO.1270/2003 15
this Court is not inclined to accept that Ext.P21 be termed or
to be considered as a confession statement given by an
accused while he was under custody or after arrest. In the
above circumstances, the confession statement made by an
accused and the statement recorded by an Officer authorised
under Section 67 of the NDPS Act is different and distinct
from a statement recorded under Section 24 of the Evidence
Act and under Section 164 of the Cr.P.C. That apart, the
legislative intention of the Parliament while enacting
Sections 53 and 67 of NDPS Act is very clear that the
statement to be recorded by an officer empowered under
Section 42 of the NDPS Act may include a confession
statement by an accused but it cannot be taken as a portion
of the confession statement. In this context, the judgment
of the Apex Court reported in Nathu v. State of Uttar
Pradesh (AIR 1956 SC 56) is relevant in which the Apex
Court had considered Section 28 of the Evidence Act and held
that the question of confession statement voluntarily given
or on threat or any promise or any inducement unless and
until it is proved that Ext.P21 is a confession statement
recorded by an investigating officer and the question of
CRL.A.NO.1270/2003 16
clearing of any threat or an inducement or promise does not
arise as this Court had already found that the statement
recored under Section 67 of the NDPS Act by PW1 cannot be
termed as a confession. Hence the contention of the learned
counsel on Ext.P21 cannot be acted on without clearing any
threat or promise alleged to have been given by PW1 and
other customs officials. From the above discussion, this Court
is of the view that the contention of the learned counsel on
this aspect is not tenable. Hence, the trial court found the
appellant guilty of the offence and imposed punishments.
Considering the nature and gravity of the offence
committed by the appellant, this Court is not inclined to
interfere with the sentences awarded against the appellant.
Accordingly, the appeal fails and it is dismissed.
K. THANKAPPAN, JUDGE.
cl
CRL.A.NO.1270/2003 17
K. THANKAPPAN, J.
CRL.A.NO.1270 OF 2003
JUDGMENT
11th January, 2007.
CRL.A.NO.1270/2003 18