Mohammed Muzam @ Thambi vs State: By Intelligence Officer on 19 March, 2010

Madras High Court

       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:  19.03.2010
CORAM:
THE HONOURABLE MS.JUSTICE R.MALA

Crl.A.Nos.1368 of 2004 and 238 of 2007
and
 M.P.No.1 of 2009 in Crl.A.No.1368 of 2004,
M.P.Nos.1 and 2 of 2009 in Crl.A.No.238 of 2007


Mohammed Muzam @ Thambi 
  @ Samsudeen	       .. Appellant in Crl.A.No.1368 of 2004

Lydon Albert @ Raj	.. Appellant in Crl.A.No.238 of 2007
Vs.
State: by Intelligence Officer,
Narcotics Control Bureau,
South Zonal Unit, Chennai-600 090.
(N.C.B.F.No.48/1/3/2002-NCB/MDS). 
	          .. Respondent in both the Criminal Appeals

	Criminal Appeals against the judgment dated 10.11.2004 in C.C.No.254 of 2002 on the file of the Principal Special Court under E.C. and N.D.P.S. Acts, Chennai-104.


 For appellant in Crl.A.No.1368 of 2004: Mr.A.Ganesh

 For appellant in Crl.A.No.238 of 2007: 
			     Mr.T.K.Sampath 
		             for M/s.T.K.Sampath Associates

 For respondent in both the Criminal Appeals:
			     Mr.R.Dhanapal Raj,
			     Special Public Prosecutor
			 	for NCB Cases



JUDGMENT

These Criminal Appeals arise out of the judgment of conviction and sentence, dated 10.11.2004 in C.C.No.254 of 2002 on the file of the Principal Special Court under E.C. and N.D.P.S. Acts, Chennai-104, whereby, the appellant (A.1) in Crl.A.No.1368 of 2004 and the appellant (A.2) in Crl.A.No.238 of 2007, were convicted for the offence under under Section 8(c) read with Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the NDPS Act’) and each sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1 lakh each, in default, each to undergo one year rigorous imprisonment. A.1 and A.2 were acquitted of the charge under Section 29 of the NDPS Act and A.1 was also acquitted of the charge under Section 8(c) read with 28 of the NDPS Act.

2. The case of the prosecution is as follows:

The Intelligence Officer, Narcotics Control Bureau, South Zonal Unit, Chennai, laid charge sheet against the appellants/A.1 and A.2 and absconding accused Sarat and Saleem.

P.W.1 Nalini Rajam, Intelligence Officer, Narcotics Control Bureau, South Zonal Unit, Chennai, received specific information on 20.2.2002 at about 15 hours over phone that A.1 Mohammed Muzam @ Thambi and A.2 Lyndon Albert Raj were carrying about 2.588 kgs. of heroin, concealed in a new blue-black travelling bag in false bottom and arriving at Chennai Central from Jaipur by Jaipur Express on 21.2.2002.

P.W.1 Nalini Rajam, the then Intelligence Officer, NCB, Chennai, recorded the information under Ex.P-1 and submitted the same to P.W.6 Punnan, the then Assistant Director, NCB, Chennai.

P.W.6, on receipt of the information, called P.W.2 Karthikeyan, P.W.7 Murugesan and P.W.1 Nalini Rajam, the then Intelligence Officers, NCB, Chennai, and briefed them about the information and also action to be taken. P.W.6 also sent Ex.P-2 letter through P.W.1, addressed to Superintendent of Police, CBI, Chennai, requesting him to provide two officers as witnesses to be present at the time of search and seizure. P.W.1 handed over Ex.P-2 to Superintendent of Police, CBI, Chennai.

P.W.1 came to NCB Office on 21.2.2002 at 7.30 a.m.. P.W.5 Abirami Selvan and Mugilan, CBI Officers, came there and P.W.5 and Mugilan were informed about the information. Then P.W.1, P.W.2 and P.W.7, along with P.W.5 and Mugilan, proceeded to Central Railway Station and reached there at 9.30 a.m. At about 10 a.m., Jaipur Express arrived in Platform No.4 and A.1 and A.2, alighted from II A/c. coach and were intercepted.

A.1 and A.2 were informed about their right to search, as contemplated under Section 50(1) of the NPDS Act. When the accused were enquired, they revealed that they concealed 2.5 kgs. of heroin in the false bottom of new blue-black travelling bag, which was in possession of A.2 and they handed over four polythene packets containing the above contraband to P.W.1.

When the contraband was tested with the help of the field test kit, it answered positive for heroin and the total weight of the contraband was 2.588 kgs. That has been recovered under Ex.P-3, in the presence of two independent witnesses, P.W.5 and Mugilan.

5 gms. were taken from each of the packets and the same were sealed with NCB.11 and were numbered as S1 to S8. The polythene packets containing the remaining contraband after taking samples, were also sealed after numbering the same as P1 to P4. The new blue-black travelling bag which was used for concealing the contraband was also sealed and numbered as P5. The polythene covers numbered as P1 to P4 were marked as M.Os.1 to 4 before Court. The blue-black travelling bag is M.O.5.

When A.1 was searched, he was found in possession of train ticket Ex.P-4, additional train fare receipt Ex.P-5, the driving licence copy Ex.P-6 and M.O.6–cash Rs.3,550/-.

When A.2 was searched, he was found in possession of driving licence and his visiting card and the same were recovered and they were marked as Exs.P-7 and P-8.

The sample packets numbered as S1, S3, S5 and S7 were sent for chemical analysis on the basis of the requisition Ex.P-24. On that basis, the learned Special Judge gave letter Ex.P-15 for chemical analysis. The chemical examiner has been examined as P.W.3 Palaniappan and he gave report Ex.P-17 after conducting test.

The sample packets containing remnant of the contraband sent after chemical analysis, are numbered as S1, S3, S5 and S7 and were marked as M.Os.7 to 10 and the sealed sample packets numbered as S7, S4, S6 and S8 were marked as M.Os.11 to 14 respectively.

The mahazar drawn on the spot is Ex.P-3. P.W.1, P.W.5, Mugilan and the accused put their signatures on the seized materials under Ex.P-3 mahazar.

The ticket recovered from A.1 is Ex.P-4. The excess fare ticket is Ex.P-5. The xerox copy of the driving licence of A.1 is marked as Ex.P-6.

P.W.2 served summons on A.1 to appear before NCB Office for enquiry and the copy of the summons is Ex.P-10. Likewise, P.W.7 served summons on A.2 to appear before NCB Office for enquiry and the copy of the same is Ex.P-31.

Then, the accused, accompanied by the NCB Officials, along with the recovered contraband, were brought to NCB Office and the accused were produced by P.W.1 before P.W.6 Mr.Punnen, Assistant Director and the contraband recovered was also produced by P.W.1 before P.W.6. P.W.6 directed P.W.1 to keep the seized contraband, to produce the same before the remanding officer.

On 21.2.2002, A.1 was examined by P.W.2 and at that time, A.1 gave voluntary statement Ex.P-11. Then, P.W.2 accompanied by P.W.4 and A.1, went to the residential place of A.1 at No.2C, Tass Villa, Halls Road, Egmore, Chennai, for search, on 22.2.2002. That place was searched in the presence of two independent witnesses Murugan and Wesley and they seized the spare parts of the suit-case, which was used for concealment of narcotic drugs and at that time, A.1 gave a statement and that is marked as Ex.P-12. P.W.4 then seized them and sealed them with the seal NCB.11. That sealed cover is M.O.15. P.W.4 prepared mahazar Ex.P-18 in the presence of the same witnesses. A.1 was arrested on 22.2.2002 at 5.30 p.m. and the arrest memo Ex.P-13.

Then, they went to the house bearing Door No.8/4 Mandapam Road, Kilpauk Garden, Chennai and verified the stay of A.1 there. Then they reached the NCB Office and produced the mahazar Ex.P-18 and M.O.15 to P.W.6, along with the enquiry report Ex.P-19.

P.W.7 examined A.2 who accompanied them to NCB Office on 21.2.2002 and he gave a voluntary statement Ex.P-32 and then A.2 was arrested on the basis of the statement and seized material on 22.2.2002, after serving the arrest memo Ex.P-33.

On the directions of P.W.6, P.W.1 handed over the seized contraband and the documents to P.W.4 Srinivas, on 22.2.2002 at about 5 p.m.
P.W.2 submitted a report under Section 57 of the NDPS Act to P.W.6 and the report is dated 23.2.2002 and the same is Ex.P-14. P.W.7 submitted a report under Section 57 of the NDPS Act in Ex.P-34 on 23.2.2002. P.W.1 also submitted a report Ex.P-9 under Section 57 of the NDPS Act to P.W.6 on 23.2.2002 at 8 a.m.
P.W.2 and P.W.7 produced the statements of the accused and the arrest memos, along with the accused to P.W.4. P.W.4 prepared a report.

P.W.4 produced A.1 and A.2 before IX Metropolitan Magistrate, for remand. The remanding Magistrate remanded the accused and directed to produce the seized properties before the Special Court and the remand report is Ex.P-20.

P.W.4 deposited the seized properties in NCB Office, through a forwarding memo Ex.P-21 on 22.2.2002 and the go-down receipt Ex.P-22 was issued by P.W.6.

On 28.2.2002, P.W.4 produced the seized properties before the Special Court with memo Ex.P-23 and through Ex.P-24 requisition, he requested the Special Court to send the sample packets S1, S3, S5 and S7 for chemical examination. He also submitted before the Special Court the seized currency notes through Ex.P-25 memo for inventorisation of the currency. He received the information along with a letter of the Magistrate and handed over the same to Customs Laboratory on 28.2.2002 and deposited the returned the properties from the Court to NCB’s go-down, Chennai on 28.2.2002.

P.W.7 took up the investigation on the direction of P.W.6 and enquired about the stay of A.1 in Brahma Mansion situated at New No.28, Ramaswamy Street, Purasawalkam, Chennai and found that he did not stay there and submitted the enquiry report Ex.P-35 to P.W.6.

P.W.6, on 8.4.2002, sent Ex.P-26 letter to the Assistant Director, NCB, Jodhpur Zonal Unit, Jodhpur and called for the particulars of the lodges where the accused were suspected to have stayed. P.W.6 also sent another letter Ex.P-27 to the Chief Reservation Supervisor, Madras Central Station, Southern Railway, Chennai, requesting for the reservation chart and the application of the accused to travel from Chennai to Jaipur by Jaipur Express on 15.2.2002. P.W.6 also sent another letter Ex.P-28 on 19.4.2002 to Police Narcotics Bureau, Colombo, Srilanka, seeking for the verification of the address details of A.1 and his antecedents. On 3.5.2002, he gave letter Ex.P-29 to the Chief Commercial Manager, Northern Railway, New Delhi, seeking for the reservation chart and the application for reservation of the accused for journey from Jaipur to Chennai on 19.2.2002. P.W.6 also sent letter Ex.P-30 to the Assistant Manager of Air Tel Office, Nungambakkam, Chennai, asking for subscription details of Mobile Phone Nos.98401 04091 and 98400 22692.

From P.W.6, P.W.7 received the requisition along with Ex.P-37, which is the Railway reservation application form, which was attested and Ex.P-38, which is the RAC/Waiting List for A/c 3 tier sleeper of the passengers for journey from Chennai to Jaipur. P.W.7, after getting signature from P.W.6, sent letter Ex.P-39 dated 17.6.2002 to the Zonal Director, NCB, Jodhpur Zonal Unit, Jodhpur, seeking for the details regarding the stay of the accused at Jaipur and Ajmeer at the lodge/Hotel. On the same day, again, P.W.7, through P.W.6, after getting signature from P.W.6, sent another letter Ex.P-40 to the Assistant Director of NCB, Mumbai Zonal Unit, Mumbai, informing about the Telephone No.07267 96981 given by the accused and sought for the address/owner of the said Telephone Number. Ex.P-41 was sent by the Zonal Director of the Chennai South Zonal Unit of NCB to the Director of Police Narcotic Bureau, Colombo, Srilanka, seeking for the address and other details of A.1. The fax message Ex.P-42, was received from Police Narcotic Bureau, Colombo, stating that the address of A.1 was not correct. The NCB Office, Chennai South Zonal Unit, also received Ex.P-43 from the Zonal Director, NCB, Jodhpur, in which the particulars of the Hotels at Jaipur and Ajmeer, where the accused stayed and the statements of the Managers of the Hotels, were enclosed.

P.W.8 Raman Thyagi, the then Intelligence Officer, NCB, Jodhpur, Rajasthan, issued Ex.P-44 summons under Section 67 of the NDPS Act to the Manager, Hotel Delhi Darbar, Rajasthan, by Registered Post, asking him to appear before him on 1.7.2002 and directed him to bring the check-in and check-out register of the Hotel. In pursuance of the same, Mr.Habib Ahmed, the Manager of Hotel Delhi Darbar, appeared on 4.7.2002 and gave a written statement Ex.P-45 along with the xerox copy of the page containing Sl.No.257 of the check-in and check-out register of Hotel Delhi Darbar, Ajmeer, which was signed by him and the xerox copy of page Sl.No.217 of the check-in and check-out register is Ex.P-46. P.W.8 handed over Exs.P-44 to P-46 to the Zonal Director, NCB, Jodhpur.

P.W.7, after completing the investigation, filed the charge sheet against the accused and the absconding accused Sarat and Saleem on 14.8.2002.

3. During the course of trial, on the side of prosecution, P.Ws.1 to 8 were examined, Exs.P-1 to P-46 were marked and M.Os.1 to 15 were produced. After examining the witnesses on the side of prosecution and marking documents, the trial Court, under Section 313 Cr.P.C., posed incriminating evidence against the accused, which was denied by the accused. On the side of the accused, D.W.1 Thiagarajan, the Head Clerk of the Special Court under EC and NDPS Acts and D.W.2 (A.2) were examined. No document was marked on the side of the accused.

4. After considering the oral and documentary evidence, the trial Court convicted and sentenced the appellants/A.1 and A.2 as indicated above. Against the same, the present Criminal Appeals have been separately filed by the appellants/A.1 and A.2.

5. Challenging the conviction and sentence passed by the trial Court, learned counsel appearing for the appellant (A.1) in Crl.A.No.1368 of 2004 would make the following submissions:

(i) Sections 52 and 55 of the NDPS Act was not complied with.

(ii) Standing Order Nos.1 of 1988 and 1 of 1989 were not complied with.

(iii) The samples alleged to have been seized from the accused and sent for chemical analysis, are doubtful.

(iv) There is discrepancy in the deposition of the witnesses with regard to the possession of the contraband when it was seized.

(v) P.W.5 is not an independent witness.

(vi) The confession statement of the accused under Section 67 of the NDPS Act, is inadmissible in evidence.

(vii) No specific question for possession was posed before the accused under Section 313 Cr.P.C. and so, the accused is prejudiced.

He prayed for acquittal of A.1.

To substantiate his contentions, learned counsel for the appellant/A.1 relied upon various decisions of the Apex Court, this Court and other High Courts.

6. Learned counsel for the appellant (A.2) in Crl.A.No.238 of 2007 would strengthen the arguments of the counsel for A.1 and culled out the portion of the oral evidence of the prosecution witnesses. He mainly focussed upon his argument that A.2 is neither in conscious nor legal possession and he was only accompanying A.1. The statement Ex.P-32, of A.2 under Section 67 of the NDPS Act is to be either rejected in toto or accepted in toto, and there cannot be piecemeal consideration of the same. Learned counsel for A.2 further submitted that non-production of go-down register is fatal the case of the prosecution. He further relied upon Ex.P-23 (memo for submissions of property before Court) and submitted that P.W.4 has not given any explanation as to how he came into possession of the property when once he deposited the same before the NCB go-down and the go-down keeper has not been examined. He prayed for acquittal of A.2.

7. Per contra, learned Special Public Prosecutor for NCB Cases, appearing for the respondent-Intelligence Officer of the NCB, submitted that as soon as P.W.1 received information, she preferred Ex.P-1 under Section 42(1) of the NDPS Act and forwarded it to P.W.6, her superior officer and so, P.W.1 complied with Section 42 of the NDPS Act. He further submitted that P.W.1 complied with Section 50 of the NDPS Act. P.W.1 also prepared Ex.P-9 report under Section 57 of the NDPS Act, which has been properly sent to the Assistant Director of the NCB, Chennai. The evidence of P.Ws.1, 2, 6 and 7 proved compliance of Section 55 of the NDPS Act and their evidence also corroborates the same. Learned Spl.P.P. further submitted that Ex.P-2 letter has been issued to CBI for securing the witnesses, for conducting search, in accordance with law and taking CBI Officials as witnesses, will not vitiate the case of the prosecution. The possession of the contraband, is proved by way of examining P.Ws,1,2,5 and 7. Learned Spl.P.P. further submitted that the Standing Order Nos.1 of 1988 and 1 of 1989, are only the guidelines and not mandatory and non-compliance of the same is not fatal to the case of the prosecution and moreover, in this case, the Standing Order has been complied with. Learned Spl.P.P. further submitted that the contraband was concealed in the false bottom of the travelling bag and so, non-marking of the polythene packets, is not fatal. The seizure of the contraband is supported and proved by the evidence of P.Ws.1,2,5 and 7. The statement of the accused under Section 67 of the NDPS Act, is in accordance with law and that has been proved by way of examining P.W.2 and P.W.7 and Exs.P-11, 12, 32 and 33. The go-down receipt has been filed and non-filing of the go-down register is not fatal, since there is no tampering of the seal in the sample packets. Learned Spl.P.P. relied upon various decisions of the Supreme Court, this Court and other High Courts in support of his contentions and prayed for dismissal of the Criminal Appeals.

I. 8. Learned counsel for the appellants/A.1 and A.2 mainly focussed their argument that non-compliance of Sections 52 and 55 of the NDPS Act, would vitiate the conviction of the accused. Learned counsel further submitted that as soon as the contraband was seized, they should be kept in safe custody in sample packets, pending orders of the Magistrate within the local area of the Police Station. The material objects have been seized by P.W.4 and P.W.7 in the presence of P.W.5 and one Mugilan and it was in their custody and P.W.1 has not deposited the seized materials within the local area Police Station, to deliver the same to the superior officers and so, Sections 52 and 55 of the NDPS Act have not been complied with.

9. Learned Spl.P.P. submits that while perusing the remand report, it is seen that the material objects have been produced before the remanding Magistrate and the learned remanding Magistrate has directed P.W.4 to produce the seized objects before the Special Court and hence, Sections 52 and 55 of the NDPS Act have been complied with. Further, learned Spl.P.P. further submitted that Sections 52 and 55 of the NDPS Act, are only directory in nature and not mandatory and even if they are not complied with, it will not vitiate the conviction.

10. Sections 52 and 55 of the NDPS Act reads as follows:

“Section 52: Disposal of persons arrested and articles seized.–(1) Any officer arresting a person under section 41, section 42, section 43 or section 44 shall, as soon as may be, inform him of the grounds of such arrest.

(2) Every person arrested and article seized under warrant issued under sub-section (1) of section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.

(3) Every person arrested and article seized under sub-section (2) of section 41, section 42, section 43 or section 44 shall be forwarded without unnecessary delay to–

(a) the officer-in-charge of the nearest police station, or

(b) the office empowered under section 53.

(4) The authority or officer to whom any person or article is forwarded under sub-section (2) or sub-section (3) shall, with all convenient despatch, take such measures as may be necessary for the disposal according to law of such person or article.”

“Section 55: Police to take charge of articles seized and delivered.–An officer in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer in-charge of the police station.”

11. At this juncture, it is appropriate to consider the decisions relied upon by learned counsel for the appellants/A.1 and A.2, which are as follows:

(a) 2009 (2) Crimes 171 (SC) (U.O.I. Vs. Bal Mukund & Ors)
“40. There is another infirmity in the prosecution case.

Section 55 of the Act reads as under:

….

P.W.7 did not testify as to which of the bags seized had been sent for analysis. No statement had been made by him that the bags produced were the bags in question which were seized or the contraband was found in them.”

(b)MANU/SC/2913/2008 (Noor Aga Vs. State of Punjab and another):

“163. Our aforementioned findings may be summarized as follows:

1. The provisions of Sections 35 and 54 are not ultra vires the Constitution of India.

2. However, procedural requirements laid down therein are required to be strictly complied with.

3. There are a large number of discrepancies in the treatment and disposal of the physical evidence. There are contradictions in the statements of official witnesses. Non-examination of independent witnesses and the nature of confession and the circumstances of the recording of such confession do not lead to the conclusion of the appellant’s guilt.

4. Finding on the discrepancies although if individually examined may not be fatal to the case of the prosecution but if cumulative view of the scenario is taken, the prosecution’s case must be held to be lacking in credibility.

5. The fact of recovery has not been proved beyond all reasonable doubt which is required to be established before the doctrine of reverse burden is applied. Recoveries have not been made as per the procedure established by law.

6. The investigation of the case was not fair. We, therefore, are of the opinion that the impugned judgment cannot be sustained which is set aside accordingly.”

“9. The learned counsel for the appellant next contended that from the evidence it is apparent that the IO has not followed the procedure prescribed under Sections 52, 55 and 57 of the NDPS Act. May be that the IO had no knowledge about the operation of the NDPS Act on the date of the incident as he recorded the FIR under Sections 9/1/78 of the Opium Act. In our view, there is much substance in this submission. It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, IO cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the present case, IO has admitted that seal which was affixed on the muddamal article was handed over to the witness PW 1 and was kept with him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer in charge of the police station as required under Section 55 of the NDPS Act. The prosecution has not led any evidence whether the chemical analyser received the sample with proper intact seals. It creates a doubt whether the same sample were sent to the chemical analyser. Further, it is apparent that the IO has not followed the procedure prescribed under Section 57 of the NDPS Act of making full report of all particulars of arrest and seizure to his immediate superior officer. The conduct of panch witness is unusual as he offered himself to be a witness for search and seizure despite being not asked by the IO, particularly when he did not know that the substance was poppy husk, but came to know about it only after being informed by the police. Further, it is the say of the Panch witness that muddamal seal used by the PSI was a wooden seal. As against this, it is the say of PW 2 SI/IO that it was a brass seal. On the basis of the aforesaid evidence and faulty investigation by the prosecution, in our view, it would not be safe to convict the appellant for a serious offence of possessing poppy husk.”

(d) 1993 L.W.(Cri) 77: (Madras High Court) (Johnson Vs. State rep. by the Inspector of Police, N.I.B.C.I.D.C.R):

“4. Learned counsel for the appellant Mr.T.V.Ganesh contended that several provisions of the Act, namely Ss.55 and 57 have not been followed by the prosecution and that the violation of the same is detrimental to the case of the prosecution. He also contended that there is a delay of nearly six days in producing the Heroin before the trial Court. The Prosecution has not offered any valid explanation for the delay. Learned Public Prosecutor contended that there is no cross examination even on the part of the accused as to why such delay had occurred in producing the contraband before the Lower Court. It is the duty of the prosecution to establish that there was a delay, the contention of the learned counsel for the appellant that the case has been foisted against the accused, cannot be brushed aside easily. The other contention of the learned counsel for the appellant is that the provision under S.55 of the Act has not been followed. Section 55 of the Act reads as follows:

…. …

In this case, P.W.4 has seized the contraband by arresting the accused and it is his duty to affix his seal on such article and to get the seal of the officer in charge of the police station before whom the articles is delivered. In this there is no evidence that P.W.4 or P.W.1 had obtained the seal of the officer in charge of the police station before whom the article was produced, this is violation of S.55 of the Act.”

(e) 2005 (1) Crimes 451 (Punjab and Haryana High Court) (Baldev Singh Vs. State of Punjab):

“19. The present case of the prosecution can be doubted on account of non-compliance of Section 55 of the Act as well. Statement of SI Darshan Singh indicates that after completion of all formalities at the spot, including sending of ruqqa for registration of formal FIR, he on return to the police station deposited the case property with the seals intact with MHC Darshan Singh. A clever attempt has been made by SI Darshan Singh by showing that he was the senior police officer in the police station on that day, but could not reconcile the situation in his cross-examination when a specific question was put to him about the Incharge of the police station (Station House Officer). He stated that when he reached the police station at 5-15 PM and he did not know as to where the SHO had gone at that time. He further states that his (S.H.O) residence was of course in the police station itself. He goes on to state that he stayed during the night in the police station but did not know as to when the SHO had come back in the police station that night and that he had tried to locate him in the police station, but was not available there. He then states that he did not look into the Daily Diary Report for locating the SI. However, he states that a roznamcha (D.D.R) was prepared in this regard. He further states that he did not produce the case property before the SHO on the next day at 12-00 noon when he meets him. He then states that he even did not send the wireless message to the Deputy Superintendent of Police, who was Senior Officer to the Station House Office, whose residence was about 17/18 kilometres from Dhuri and even did not make an effort to produce the accused/appellant alongwith the case property before the DSP. No note has been made in the zimni, about the factum of the Senior Officer, this witness has so admitted in his cross-examination. From this all, it can be safely said that there is a glaring non-compliance of Section 55 of the Act.

20. In Baba Budh Giri Chela v. State of Haryana (1996 (1) RCC 410), while dealing with Section 55 of the Act, this Court has gone to the extent of observing that merely signing some endorsement by the Incharge of the police station in this regard would not inspire confidence that there is compliance of Section 55 of the Act. In the instant case, even this is not the situation as the case property was straight-away deposited with MHC Darshan Singh of the police station and was never produced before the Incharge of the police station to verify the facts and to keep it in safe custody pending orders of the Magistrate.

21. In Thandi Ram v. State of Haryana (AIR 1999 Supreme Court Cases Weekly 468), the accused was acquitted for non-compliance of Section 55 of the Act observing that the conviction in such type of cases stands vitiated. Reference can also be made to another judgment of Hon’ble Apex Court rendered in Gurbax Singh v. State of Haryana (2001 SCC (Crl.) 426, in which there was non-compliance of Sections 52, 55 and 57 of the Act and finding the investigation faulty, the accused was acquitted. No doubt, all these provisions may be considered as directory but the non-compliance thereof can be fatal as well if the prejudice is caused to the accused. Stringent punishment is provided under the Act and it is the duty of the Court to see that the investigation does not fault at any stage. In such eventuality, it would not be safe to convict the accused at all.”

	(emphasis supplied)

(f) 1992 (1) Crimes 537 (Rajasthan High Court):     	Nathiya and another Vs. The State:

“Narcotic Drugs and Psychotropic Substances Act, 1985–Sections 20, 50 and 55–Conviction u/s 20–Appeal–Alleged recovery of bags containing contraband Charas–The bags were not sealed on the spot–Recovery memo does not carry any specimen seal impression–The grounds given for not sealing the bags is not convincing–This makes the prosecution case doubtful.”

“Narcotic Drugs and Psychotropic Substances Act, 1985–Sections 20 and 55–Conviction u/20–Challenged–Recovery of bags containing contraband charas–According to the prosecution there were in all 301 bags–However, only 31 samples were taken–Why samples could not be taken from the other bags could not be explained at all–Bags from which samples were not taken, cannot be said to contain contraband as claimed by the prosecution.”

“Narcotic Drugs and Psychotropic Substances Act, 1985–Sections 20 & 55–Recovery of contraband charas–Section 55 of the Act requires the officer-in-charge of the Police Station to affix ‘his’ seal to the articles and the samples taken by him–Legislature never contemplated that the articles or the samples recovered under the provisions of the Act may be sealed with the general seal of the Police Station, which would be in possession of the constable or any other officer of the Police Station.”

“Narcotic Drugs and Psychotropic Substances Act, 1985–Sections 20 and 55–Conviction u/s 20–Appeal–Recovery of contraband charas–Samples recovered were alleged to have been sent to SFSL in absence of specimen seal having been sent–In such circumstances it is difficult to hold that self-same samples had been sent to the SFSL which had been recovered from the accused.”

“Narcotic Drugs and Psychotropic Substances Act, 1985–Section 55–Police to take charge of articles seized and delivered–All articles seized under the Act have to be kept in the safe custody ‘pending the orders of the Magistrate’–SHO is not entitled to allow the Inspector to take such samples from the bags kept with him without orders of the Magistrate.”

(g)1994 Cri.L.J. 1(1) (Supreme Court): Valsala Vs. State of Kerala:

“Narcotic Drugs and Psychotropic Substances Act (61 of 1985), S.55, S.21–Safe custody of seized article–Delay of more than three months in sending seized article to Court–No evidence to show that article was sealed and kept in proper custody in police station–Sending of the very article seized to chemical examiner, highly doubtful–Conviction cannot be sustained.”

(h) 1995 Cri.L.J. 82: Orissa High Court:

Ajaya Kumar Naik Vs. State of Orissa:

“15. Next with regard to the custody of the seized article. Section 55 of the NDPS Act mandates that an officer in charge of a police station shall take charge of and keep in safe custody all articles seized under the Act which may be delivered to him.

In para 3 of the examination-in-chief the IO stated that after reaching the police station he made over the seized articles kept in the sealed packet to the Officer-in-Charge ‘for proper perspective’, PW 5, the Officer-in-Charge did not state anything about his taking charge of custody of the seized article. There is no corresponding entry in the case diary indicating that the custody of the seized article was given to the Officer-in-Charge. Therefore, there is no material to hold that the mandatory provisions of Section 55 of the Act that the seized article must be kept with the Officer-in-Charge of the police Station to have been complied with. As held by the Supreme Court, such non-compliance of mandatory provisions will affect the case as a whole”.

(i) 1989 Cri.L.J. 2438: Delhi High Court: Pradeep Kumar Vs. The State:

“The provisions of S.55 and S.52(3) of the Act cannot be treated as empty formalities, but are substantive provisions, to ensure authenticity of the recovery, by making senior officer responsible for the proceedings of sampling, sealing and deposit in the malkhana. Apart from the fact that this lapse by itself, namely, non-compliance with the provisions of S.55 of the Act, and non-observance of the requirements of S.52(3) of the Act would be enough to vitiate the prosecution case, there are additional features on record which make the prosecution case suspicious. The seal was also entrusted by the ASI to his colleague who was investigating a parallel case. The suspicion is re-inforced by the fact that even the CFSL form, with specimen seals, was not deposited in the Malkhana simultaneously with the sealed parcels. This accompanied with the fact that the Station House Officer never supervised the sealing of the parcels, as required by S.55 of the Act, nor did have the property deposited personally or under his supervision; makes it a case where it cannot be said with reasonable certainty that the seals put on the parcels, containing samples would not have been tampered with at any subsequent stage, as there is no guarantee on the record of the case against meddling with the seals and thus it cannot be said beyond shadow of doubt that the sealed parcels sent to the CFSL were same as contained the samples of the article allegedly seized from the accused appellant.”

“27. .. ….. the prosecution is bound to fail on the short ground of non-observance of the procedure as laid down in Section 55, and non-compliance with the requirements of the said provisions; coupled with the provisions of Section 52(3) of the NDPS Act ….”

(j) 1989 Cri.L.J. 1814: Delhi High Court: Rajesh Vs. The State:

“The only construction possible from a reading of S.55 of the Act, in conjunction with S.52(3), is that it is the officer-in-charge of the police Station, namely the SHO who is to take charge of the person arrested, as well as the articles seized, and supervise the proceedings, have the parcels sealed with his own seal, and then get them deposited at the police station for safe custody; either himself or through some officer, and in that event allow that other officer also to put his seal on the parcels already sealed with his seal.”

“In the instant case the proceedings had been carried out in reverse order inasmuch as the investigating officer, before arrival of the SHO, finished with everything, including sealing of the parcels. This is certainly against the form as well as spirit of S.55 of the Act, when the whole procedure has been subverted by the investigating officer, and he exceeded his authority as given to him by Ss.43 and 52(3) of the Act.

Since the senior officer had not been associated in the sampling or sealing procedure, as mandated by law and though the recovery had been allegedly effected at a public place, frequented by people, no attempt was made to have even one person to witness the recovery, the conviction of the accused for the offence under S.21 of the Act would not be sustainable. Although, it could not be said that provisions of S.100(4) of the Criminal Procedure Code in term apply to cases under this Act, of personal search at public cases, but nevertheless the fact that witnesses were available and were not associated, coupled with the situation that there was a blatant contravention of the provisions of S.55 of the Act, does throw a doubt on the veracity or authenticity of the prosecution case.”

12. In this context, learned Special Public Prosecutor would rely upon the following decisions:

(a) 2003 Drugs Cases (Narcotics) 461 (SC):

Rajendra and another Vs. State of Madhya Pradesh:

“15. Coming to the question of alleged non-compliance of the requirement of Sections 55 and 57, we find the trial Court has referred to the evidence of the witnesses and held that articles were kept in Malkhana in safe custody and were sent for chemical examination after necessary orders by the Magistrate and, therefore, the requirement of Section 55 were complied with. Section 57 relates to reporting of arrest and seizure to immediate superior officer. The evidence shows that same has been done. We find no infirmity in the conclusions of the trial Court and the High Court regarding compliance of Sections 55 and 57 to warrant interference.”

(b) 2006 Drugs Cases (Narcotics) 705 (SC): Ouseph Vs. State of Kerala:

“3. … … Under the provisions of Section 55 of the said Act, this requirement may not be mandatory but on facts of this case, keeping the contraband articles in an unsealed condition for such a long time creates doubt in our mind. The period of non-sealing in the circumstances of this case does give rise to a doubt that there might have been a possibility of tampering which cannot be ruled out, more so because sample sent to the Chemical Examiner is a small quantity. The trial court proceeded on the basis that from the statement of the police it showed that it was kept in a safe place, therefore, no prejudice has been caused to the appellant. The prejudice in our opinion is apparent if the seized articles are different from the articles sent to the Chemical Examiner which in this case we cannot say with certainty that the said manipulation has not happened. ….”

“8. The learned counsel further contended that the seized articles were not kept in proper custody and that there was violation of Sections 52, 55 and 57 of the NDPS Act. He placed reliance on Valsala vs. State of Kerala, 1994 Drugs Cases 44 : (1993) 3 Supp. 665. We do not think that there is much force in this contention. This Court in Gurbax Singh vs. State of Haryana, 2001 Drugs Cases (Narcotics) 8 : (2001) 3 SCC 28 held that these provisions are not mandatory provisions and they are only directory. In the present case, we do not find any serious violation of these provisions. The prosecution adduced evidence to prove that these provisions have been substantially complied with and the Sessions Judge discussed these matters in detail and accepted the prosecution case.”

(d) 2001 (6) SCC 692: Sajan Abraham Vs. State of Kerala:

“In construing any facts to find, whether the prosecution has complied with the mandate of any provision which is mandatory, one has to examine it with a pragmatic approach. The law under the aforesaid Act being stringent to the persons involved in the field of illicit drug traffic and drug abuse, the legislature time and again has made some of its provisions obligatory for the prosecution to comply with, which the courts have interpreted it to be mandatory. This is in order to balance the stringency for an accused by casting an obligation on the prosecution for its strict compliance. The stringency is because of the type of crime involved under it, so that no such person escapes from the clutches of the law. The court however while construing such provisions strictly should not interpret them so literally so as to render their compliance, impossible. However before drawing such an inference, it should be examined with caution and circumspection. In other words, if in a case, the following of a mandate strictly, results in delay in trapping an accused, which may lead the accused to escape, then the prosecution case should not be thrown out.”

(e) 2001 SCC (Cri) 426: Gurbax Singh Vs. State of Haryana
“9. The learned counsel for the appellant next contended that from the evidence it is apparent that the IO has not followed the procedure prescribed under Sections 52, 55 and 57 of the NDPS Act. May be that the IO had no knowledge about the operation of the NDPS Act on the date of the incident as he recorded the FIR under Sections 9/1/78 of the Opium Act. In our view, there is much substance in this submission. It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, IO cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. ….”

(emphasis supplied)

13. In the present case, the samples seized from the accused, have been sealed in accordance with the provisions of the NDPS Act. The samples have also been produced at the time of remand and was produced before the concerned Magistrate and only on the directions of the remanding Magistrate, the samples have been deposited before the Special Court, as contemplated under the NDPS Act. Furthermore, before the material objects have been produced before P.W.6, the Assistant Director of the NCB, the superior officer of P.W.1 who seized the contraband from the accused.

14. In the above circumstances, I am of the view that non-compliance of Sections 52 and 55 of the Act is not fatal to the case of the prosecution. Further, in the present case, the evidence of P.Ws.1,2,4 and 7 clearly proved that the material objects seized from the accused are heroin and after its seizure, it was found to be positive on being tested. Furthermore, the samples have been seized, sealed and sent for chemical analysis in accordance with law. Hence, the citation relied on by the learned counsel for the appellants/A.1 and A.2 in 2009 (2) Crimes 171 (SC) (cited supra), is not applicable to the facts of the present case. Furthermore, Sections 52 and 55 of the NDPS Act are only directory and not mandatory. Thus, I am of the view that the respondent-Intelligence Officer of NCB, complied with the provisions of Sections 52 and 55 of the NDPS Act.

II. 15. Next, learned counsel for the appellants/A.1 and A.2 would submit that the Standing Order Nos.1 of 1988 and 1 of 1989, were not complied with. Order No.2.3 of the Standing Order No.1 of 1989, issued by the Government of India, Ministry of Finance, Department of Revenue, dated 13.6.1989, reads as follows:

“Order 2.3: The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in the cases of opium, ganja and charas (hashish) where a quantity of 24 grams in each cases is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn.”

16. Learned counsel for the appellants/A.1 contended that P.W.1 has taken eight samples of each 5 gms. from the four packets seized from the accused. On a perusal of the samples, if the polythene covers are removed, the weight of the samples would be less than 5 gms., and in the circumstances, learned counsel for the appellants-accused submitted that the quantity drawn as sample, violates Order 2.3 of the Standing Order No.1 of 1989. He further submitted that the test memo Ex.P-16 does not contain the date and drawal of the samples. Moreover, the number of seals stated in the test memo does not tally with the samples and as stated above, the date of drawal of the samples is also blank in the test memo and the quantity is also inadequate. In the circumstances, learned counsel contended that the chemical analyst should have sent the samples back to the Court. In support of his contentions, learned counsel relied upon the following decisions:

(a) 2009 (2) Crimes 171 (SC) :

U.O.I. Vs. Bal Mukund and others:

“39. There is another aspect of the matter which cannot also be lost sight of. Standing Instruction No.1/88, which had been issued under the Act, lays down the procedure for taking samples. The High Court has noticed that PW-7 had taken samples of 25 grams each from all the five bags and then mixed them and sent to the laboratory. There is nothing to show that adequate quantity from each bag had been taken. It was a requirement in law.”

(b) MANU/SC/2913/2008 (Noor Aga Vs. State of Punjab and another)
“124. Logical corollary of these discussions is that the guidelines such as those present in the Standing Order cannot be blatantly flouted and substantial compliance therewith must be insisted upon for so that sanctity of physical evidence in such cases remains intact. Clearly, there has been no substantial compliance of these guidelines by the investigating authority which leads to drawing of an adverse inference against them to the effect that had such evidence been produced, the same would have gone against the prosecution.”

“133. We are not oblivious of the fact that a slight difference in the weight of the sample may not be held to be so crucial as to disregard the entire prosecution case as ordinarily an officer in a public place would not be carrying a good scale with him. Here, however, the scenario is different. The place of seizure was an airport. The officers carrying out the search and seizure were from the Customs Department. They must be having good scales with them as a marginal increase or decrease of quantity of imported articles whether contraband or otherwise may make a huge difference under the Customs Act.”

17. Per contra, learned Special Public Prosecutor would submit that the Standing Orders are only instructions and they are only directory and not mandatory. If the Officer violates the same, it will not vitiate the conviction. Learned Spl.P.P. relied upon the decision of the Supreme Court reported in 2002 (4) SCC 380 (Khet Singh Vs. Union of India), wherein, the Supreme Court held as follows:

“8. The learned counsel for the appellant also pointed out to us clause 3.8 of Standing Instruction 2/88 issued by the Narcotics Control Bureau, New Delhi, which reads as follows:

Each seizing officer should deposit the drugs fully packed and sealed with his seal in the godown within 48 hours of seizure of such drugs, with forwarding memo indicating:

(i) NDPS crime number as per crime and prosecution register under the new law (i.e. the NDPS Act).

(ii) Name(s) of accused.

(iii) Reference of test memo.

(iv) Description of drugs in the sealed packages/containers and other goods, if any.

(v) Drugwise quantity in each package/container.

(vi) Drugwise number of packages/containers.

(vii) Total number of all packages/containers.

9. The learned counsel for the appellant contended that these instructions issued by the Narcotics Control Bureau, New Delhi, were not followed and the seizure memo was not prepared at the spot and there was delay in depositing the seized drug in the godown. It was argued that this has caused serious prejudice to the accused and therefore, his conviction is vitiated on that account.

10. The instructions issued by the Narcotics Control Bureau, New Delhi are to be followed by the officer-in-charge of the investigation of the crimes coming within the purview of the NDPS Act, even though these instructions do not have the force of law. They are intended to guide the officers and to see that a fair procedure is adopted by the officer-in-charge of the investigation. It is true that when a contraband article is seized during investigation or search, a seizure mahazar should be prepared at the spot in accordance with law. There may, however, be circumstances in which it would not have been possible for the officer to prepare the mahazar at the spot, as it may be a chance recovery and the officer may not have the facility to prepare a seizure mahazar at the spot itself. If the seizure is effected at the place where there are no witnesses and there is no facility for weighing the contraband article or other requisite facilities are lacking, the officer can prepare the seizure mahazar at a later stage as and when the facilities are available, provided there are justifiable and reasonable grounds to do so. In that event, where the seizure mahazar is prepared at a later stage, the officer should indicate his reasons as to why he had not prepared the mahazar at the spot of recovery. If there is any inordinate delay in preparing the seizure mahazar, that may give an opportunity to tamper with the contraband article allegedly seized from the accused. There may also be allegations that the article seized was by itself substituted and some other items were planted to falsely implicate the accused. To avoid these suspicious circumstances and to have a fair procedure in respect of search and seizure, it is always desirable to prepare the seizure mahazar at the spot itself from where the contraband articles were taken into custody.”

18. The decision relied on by the learned counsel for the appellants/A.1 and A.2 in Bal Mukund’s case (2009 (2) Crimes 171 (SC)) (cited supra), is not applicable to the facts of the present case, because, P.W.7 in that case, had taken sample of 25 gms. each from all the five bags and then mixed them and sent to the laboratory. But, in the case on hand, the evidence of P.Ws.1,2,4,5 and 7, clearly proved that they have taken samples of 5 gms. from each of the four packets seized from the accused and then they sealed them separately and gave numbers for the sample packets as S1 to S8 and they have sent the sample packets S1, S3, S5 and S7 to the chemical analysis and in such circumstances, there is no violation of Standing Order Nos.1 of 1988 and 1 of 1989. Moreover, the Standing Orders are only instructive in nature and have no statutory force and are in the nature of guidelines that a fair procedure is adopted by the officer-in-charge of the investigation and the same be deviated by preferring the mahazar at a later stage where there are reasonable and justifiable ground to do so. It will not vitiate the conviction. The administrative instructions issued by the NCB, though not having force of law, are to be followed only as guidelines by the officer-in-charge of the investigation and departure must be based on justifiable and reasonable grounds. The contravention of the instructions therefor would not necessarily vitiate the conviction.

19. In the case on hand, as already stated, P.W.1 in her evidence clearly deposed that she has taken 5 gms. of samples from each of the four polythene packets seized from the accused and sealed them as S1 to S8 in the place of seizure itself and it was sealed and recovered, and the evidence of P.W.1 is corroborated by the other witnesses including P.W.5 who is not belonging to NCB Office and so, I am of the view that there is no violation of the Standing Order Nos.1 of 1988 and 1 of 1989. Even if the Standing Orders are violated, as they are only instructive in nature, and if there are justifiable and reasonable grounds for violation of the same, it will not vitiate the conviction of the accused.

III. 20. Learned counsel next contended that the samples alleged to have been seized from the accused and sent for chemical analysis, are doubtful, since, as per the evidence of P.W.4, the samples had four seals with NCB Seal No.11 and one Court seals, whereas, as per Ex.P-17 chemical analyst report submitted by P.W.3, three seals of NCB No.11 and one Court seal on each cover, were found. So, there is variation in the number of seals of NCB, which has not been explained by the prosecution. Therefore, learned counsel for the appellants-A.1 and A.2 submitted that the samples seized from the accused were not sent for chemical analysis and the identity of the samples has not been established beyond reasonable doubt. Hence, he prayed for acquittal of the appellants/A.1 and A.2. To substantiate the said contentions, learned counsel for the appellants/A.1 and A.2 relied upon the following decisions:

(a) MANU/SC/2913/2008: Noor Aga Vs. State of Punjab and another:

“132. The fate of these samples is not disputed. Two of them although were kept in the malkahana along with the bulk but were not produced. No explanation has been offered in this regard. So far as the third sample which allegedly was sent to the Central Forensic Science Laboratory, New Delhi is concerned, it stands admitted that the discrepancies in the documentary evidence available have appeared before the court, namely:

i) While original weight of the sample was 5 gms., as evidenced by Ex.PB, PC and the letter accompanying Ex.PH, the weight of the sample in the laboratory was recorded as 8.7 gms.

ii) Initially, the colour of the sample as recorded was brown, but as per the chemical examination report, the colour of powder was recorded as white.

133. We are not oblivious of the fact that a slight difference in the weight of the sample may not be held to be so crucial as to disregard the entire prosecution case as ordinarily an officer in a public place would not be carrying a good scale with him. Here, however, the scenario is different. The place of seizure was an airport. The officers carrying out the search and seizure were from the Customs Department. They must be having good scales with them as a marginal increase or decrease of quantity of imported articles whether contraband or otherwise may make a huge difference under the Customs Act.

134. We cannot but also take notice other discrepancies in respect of the physical evidence which are:

i) The bulk was kept in cotton bags as per the Panchnama, Ex. PC, while at the time of receiving them in the malkhana, they were packed in tin as per the deposition of PW 5.

ii) The seal, which ensures sanctity of the physical evidence, was not received along with the materials neither at the malkhana nor at the CFSL, and was not produced in Court.

135. Physical evidence of a case of this nature being the property of the court should have been treated to be sacrosanct. Non-production thereof would warrant drawing of a negative inference within the meaning of Section 114(g) of the Evidence Act. While there are such a large number of discrepancies, if a cumulative effect thereto is taken into consideration on the basis whereof the permissive inference would be that serious doubts are created with respect of the prosecution’s endeavour to prove the fact of possession of contraband from the appellant.

136. This aspect of the matter has been considered by this Court in Jitendra Vs. State of U.P. MANU/SC/0727/2003, AIR 2003 SC 4236, 2003 Cri.L.J. 4985, 2003 (89) ECC 705, JT 2003 (Supp.11) SC 331, 2003 (4) MPHT 338, 2003 (7) SCALE 619, (2004) 10 SCC 562, 2004 (1) UJ 127 (SC), in the following terms:

“In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchanama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act.”

137. Several other lacunae in the prosecution case had been brought to our notice. The samples had been kept at the airport for a period of three days. They were not deposited at the malkhana. It was obligatory on the part of the Customs Department to keep the same in the safe custody. Why such precautions were not taken is beyond anybody’s comprehension.

138. The High Court, however, opined that the physical evidence was in safe custody. Such an inference was drawn on the basis that the seals were intact but what was not noticed by the High Court is that there are gaping flaws in the treatment, disposal and production of the physical evidence and the conclusion that the same was in safe custody required thorough evidence on the part of the prosecution which suggests that the sanctity of the physical evidence was not faulted. It was not done in the present case.

….

…

141. …… The sample, thus, with only a seal of custom by itself cannot be stated to be one recovered from the appellant specially when the prosecution case is that it contained accused’s signature and date of it which is not found on the original. The independent witnesses did not sign the samples. The original seal was not produced. It is a mystery to whom the sale was entrusted. Thus, the change in colour, weight of the sample as also the absence of the accused’s signature thereupon cannot be totally ignored.”

(b) 2001 SCC (Cri) 426 : Gurbax Singh Vs. State of Haryana:

“9. … In the present case, IO has admitted that seal which was affixed on the muddamal article was handed over to the witness PW 1 and was kept with him for 10 days. He has also admitted that the muddammal parcels were not sealed by the officer in charge of the police station as required under Section 55 of the NDPS Act. The prosecution has not led any evidence whether the chemical analyser received the sample with proper intact seals. It creates a doubt whether the same sample were sent to the chemical analyser. …. …. ….

On the basis of the aforesaid evidence and faulty investigation by the prosecution, in our view, it would not be safe to convict the appellant for a serious offence of possessing poppy husk.”

“9. We also find force in the last submission of Mr.Saiyed, the learned Advocate representing Mohamadali Suleman with regard to the facsimile of the seal. In order to ensure the Court that the muddamal seized from the accused was sent to the chemical analyser and the same was analysed, the prosecution has to adduce necessary evidence, leaving no room to doubt about its identity. In this case, the prosecution has no doubt led the evidence, but about identity of the muddamal it has dissembled. In the FIR (Ex.14) it is not stated whether the muddamal seized at the time of raid was sealed. In the Panchnama (Ex.14) no doubt about the sealing of the muddamal seized is mentioned but phraseology of the seal is not stated. The panchas also do not state about the same. Mr.P.S.Patel, the Dy.S.P.(Exh.12) has no doubt mentioned about sealing of the muddamal stating that the muddamal articles were sealed by the seal of Kosamba police station but it is not made clear in which words the same was counched. The chemical analyser while in his forwarding letter to the PSI-Kosamba (Ex.54) dt.18.1.88 has mentioned that when the muddamal articles were received, they were sealed as “PSI, Kosamba, District-Surat (Rural)”. The phraseology of the seal thus appears dissimilar. It may be stated that the officer of the police station is provided with his official seal over and above the common seal of the police station. The dissimilating aspect goes to show that initially the common seal of the police station was used, but when the muddamal box reached the chemical analyser, he found thereon the personal but of course official seal. It is not explained how the seal came to be changed after the seizure but before the muddamal was despatched for analysis. The forwarding letter addressed to the chemical analyser with fascimile impressions thereon is also not produced. In view of such evidence what can be deduced is that the possibility of tampering with the muddamal when it remained in police custody cannot be ruled out; and so there is a reason to agree with the submission advanced on behalf of the accused-appellant that the muddamal was sent to the chemical analyser other than what is alleged to have been seized. The identity of the muddamal is not established beyond doubt. The report of the chemical analyser therefore cannot be looked into and relied upon. It has to be ignored. If that is done, there is no other evidence on record to hold positively that the goods or things seized from the house of the accused were charas and ganja, the prohibited articles. The bare statement of the police officer is not sufficient because it is not established whether those officers were trained to test, identify and make out the thing or object seized was charas and ganja and none else. On this count, the accused are entitled to the benefit of doubt.”

(d)1995 Cri.L.J. 671 (Gujarat High Court): Mohamad Jahangir Pathan Vs. State of Gujarat:

“5. …… in order to record the order of conviction and sentence on the basis of the evidence of police officers only, their evidence should be of the sterling quality, clear enough and beyond any measure of doubt to connect the accused with the crime alleged against him. In such case, under the Narcotic Act, in order to connect the accused with the crime alleged against him, the prosecution is required to prove beyond any measure of doubt the identity of the muddamal sample, that is to say the sample seized from the accused at the time of his search by the police officer and which ultimately came to be identified, analysed and found to be the Narcotic drug by the Public Analyst is one and the same only and none other. If the said identity of the muddamal sample falls short-off to be established, the benefit of the same has got to be invariably resolved in favour of the accused. In the instant case, PSI Nathani though he has not stated before the Court that he has affixed a seal of his Police Station, however, since the muddamal was sealed under the Panchnama, one may not attach much importance to the same, as the said particulars are ultimately brought on the record and gets duly supported by the Panchnama. Further, in the instant case, the matter does not simply rest here. On perusal of the Public Analyst report (Exh.17), there is indeed nothing in it on the basis of which it can be said with certainty and beyond any manner of doubt that the muddamal sample came to be analysed by the Public Analyst was the very same received from the Investigating Agency. The report is totally vague so far as the fixing of the identity of the muddamal sample is concerned. In the report, what is stated is that one sealed paper packet was received. It does not say as to what seal was affixed thereupon. Not only that but whenever the sample is analysed, the seal of the sample is required to be broken open and in the process two slips containing signatures of the panchas and PSI in whose presence the muddamal came to be seized are taken out to be noted in the report. These two slips containing signature of Panchas and the concerned police officer are also not noted in the Public Analyst report at Exh.17. Under the circumstances, though it is quite true that the Public Analyst report (Exh.17) does contain an opinion that the muddamal was found to be ‘Charas’, still however, there is indeed nothing on the basis of which the sample analysed could be connected with the sample seized and sealed from accused. This vital gap in the evidence of Public Analyst, that of PSI Nathani and the accused, totally remains unbridged and when that is the position available, it is not permitted to any court to record conviction of the accused. In this view of the matter, since the prosecution has failed to connect the accused with the crime alleged against him, we have no alternative left with us but to acquit the accused. We do not know whether the sample was in fact sealed with the seal of Mehsana City Police Station or not. It may or may not be. In case, if the sample was sealed as asserted by PSI-Nathani, then the Public Analyst would not have failed to notice the facsimile mark of Mehsana Police Station and the two slips containing signature of Panchas and PSI. The very fact that this is not reflected in the notes made in the report Exh.17 is indeed a serious lapse either on the part of PSI-Nathani or on the part of Public Analyst. In this view of the matter, since the most material link connecting accused with the crime alleged against him viz., the identity of muddamal sample not duly established, the prosecution has failed to bring home the charge against the accused, and as a result the appellant deserves to be acquitted.”

(e) 1993 (1) Crimes 508 (Bombay High Court–Panaji Bench): Brown Nicholas William Jonathan, British National Vs. State of Goa:

“21. … … A bare perusal of the seals put by the police on the one hand and the seals put either by the laboratory staff or by the staff of the Trial Court on the other, would show that unfortunately the police have resorted to the process of sealing as an empty formality in a very casual and, if we may say so, most careless manner. We are commenting upon this because Shri Chari is right in his contention that if the police found one lot of charas and if the panchanama and the two witnesses, namely P.W.2 Naik and P.W.3 Dias are categoric in their assertion of finding of one lot in a polythene paper, it is not understood how P.W.1 Calderia would find two distinct lots of charas packed in two separate polythene papers inside the envelope which had been so poorly sealed. If there was no such glaring inconsistency in the finding of the two lots of charas inside and if the evidence of P.Ws.2 and 3 on the one hand were to be consistent with the evidence of P.W.1, we may have ignored the shabby and careless manner in which the sealing was done. But in the light of the serious contention raised by Shri Chari, we cannot ignore the casual and thoroughly un-satisfactory manner in which the samples of charas were sealed. …. ….. If this is the state of affairs as far as the sealing of the envelope which contained the seized charas, it is difficult to reject the contention of Shri Chari that the identity of the sample searched and the sanctity of the sealing has not been preserved in this case.

22. …. …. A perusal of the evidence of the 3 witnesses, which constitutes the entire evidence in the cases, shows that the integrity of the scaling process is seriously in doubt in the present case. Sanctity of the sealing process has not been preserved. It is difficult for us to record a finding that what was tested in the laboratory on 16th January 1991 by P.W.1 Calderia was the very substance which was recovered from the accused on Friday the 21st December 1990. If that be the position, we are afraid, the very foundation of the prosecution case must collapse. ….”

(f) 1992 (2) Crimes 550 (Delhi High Court): (Anoop Joshi Vs. State)
“6. Before I refer to the evidence of the expert and the S.H.O. with regard to the discrepancy appearing with regard to one specimen seal not tallying with the seal affixed on the sample, I may refer to the evidence to show that the prosecution has not cared or bothered to prove as to where the C.F.S.L. form on which allegedly specimen seals were affixed for being sent to C.F.S.L. was kept before it was handed over to the constable for sending it to C.F.S.L. S.I. Jagdish Prashad, who is the Investigating Officer, is silent as to whether the said C.F.S.L. form had been kept. He does not say that the same was deposited with the case property with the Malkhana Muharrar.

7. The Malkhana Muharrar, PW-7, who was also surprisingly a member of the raiding party, also did not say that the C.F.S.L. form was deposited in the Malkhana register. ..

…

10. PW8, N.K.Prashad, Senior Scientific Officer, who had found the discrepancy on one of the seals appearing on the sample, has proved the correspondence mentioned above made with the S.H.O. and he has deposed that there was a difference in the size of the letters of the specimen seals OPY as compared with the seal appearing on the sample. It is true that 5 seals of OPY and 5 seals of RPK had been affixed on the sample but if one seal of OPY is shown to be suspicious or tampered with, it is not possible to hold that sample had remained intact from the date it was prepared till it was examined by the C.F.S.L. expert. The witness categorically denied that with the cooling of the wax or lac, the difference would result in size of the letters of the seal.

11. The learned Additional Sessions Judge has not recorded his own observation regarding the difference in the said seal but in the judgment, he has tried to explain that this difference in the seal might have occurred due to scrapping of the wax or ‘lac’. I do not think that by this process how there could take place any change in the size of the letters on the seal affixed on the sample as compared with the letters of the seal appearing on the C.F.S.L. form. At any rate, a grave doubt arises with regard to the sample having remained intact throughout.

12. ….. It is to be remembered that the seal of OPY was not given to any independent person after it was used and the same remained with the S.H.O. throughout. When we keep in view the facts that not only the C.F.S.L. form containing the specimen seals affixed on the case property was not shown to have been deposited in the Malkhana, and no explanation having been given as to in whose possession it remained before it was sent to the C.F.S.L. and also the fact that there was some tampering with one of the seals and also the fact that quantity of the smack recovered from the sample by the C.F.S.L. was much less, should lead to reasonable doubt that the sample which was taken at the spot was not kept untampered till it was examined by the C.F.S.L. expert.”

(g) 1988 (3) Crimes 485 : Rajasthan High Court (Jaipur Bench): Gopal Vs. State of Rajasthan:

“4. … … Regarding the seal which was affixed on these two samples it was argued that from the evidence of the witnesses it becomes doubtful that the seal remained intact in the malkhana and was sent to the F.S.L. for examination in intact condition. .. .. Report Ex.P.6 is the report of chemical examination and in this report it has been mentioned that the seals on the packets were intact, but this report does not have the specimen of that seal. When these packets were sent to F.S.L. they must have been sent along with a forwarding letter and it is expected that this forwarding letter must have the specimen of the seal which was affixed on the sample packets while sealing them. That forwarding letter has not been produced. Therefore, it is not on the record to prove as to which seal affixed on these sample packets when they were sent to F.S.L. for examination. .. … Anyway, it was for the prosecution to have cleared this doubt. It was the duty of the prosecution to prove that such and such seal was affixed on the sample packets and also on the recovery memo of articles and the packets were sent bearing with some seal in intact condition to the Laboratory. Ordinarily when the packets are sent to Laboratory a forwarding letter is sent and in that forwarding letter specimen of the seal is affixed so that the Director F.S.L. may compare the seal affixed on the packets with the specimen seal affixed on the forwarding letter. In the present case the specimen seal has not been produced. The forwarding letter along with the samples has not been produced. …

.. …

12. … Anyway, once the sample was sent to Chemical Examiner it was the duty of the prosecution to prove beyond doubt that the sample was sealed and seal was intact and it was sent in intact condition to the Laboratory for examination. In the present case as observed above that the matter of sealing and the seal was intact or not creates doubt and certainly when doubt is created the benefit of doubt is to be given to the accused.”

(h) 1992 (1) Crimes 537: Rajasthan High Court: Nathiya and another Vs. The State:

“16. … …. The samples said to have been recovered by Hamir Singh are alleged to have been sent to SFSL, Jaipur alongwith letter Ex.P-21. The specimen seal with which the samples are said to have been sealed was not sent alongwith Ex.P-21 or at any rate does not find place on record of the learned trial Court. In absence of such specimen seal having been sent. It is difficult to hold that self-same samples had been sent to the SFSL, Jaipur which had been recovered by Hamir Singh. In Prithvi Raj’s case (supra) (Prithvi Raj Vs. State-RCC 1989 P. 474), a similar contention was raised. The learned single Judge dealt with the contentions as follows:

” ….

….. Thus, a suspicion is created about the genuineness of the seal and about the specimen of the seal; and when a doubt is created, it affects the whole prosecution case.”

In the present case, as already stated above, memo Ex.P.5 does not contain a specimen of the seal but as pointed out earlier Ex.P.21, with which 31 samples are said to have been sent to FSL does not carry any specimen seal on it. The report of the FSL is in a cyclostyled form and it mentions that “The packet(s) thirty one in numbers enclosed with in white cloth cover kept in an unwealed card Board Box which were properly sealed bearing impressions which tallied with the specimen seal impression forwarded.” It does not indicate as to what that specimen seal impression was. The seal impression does not accompany Ex.P.19.”

(i) 1998 Cri.L.J. 2626 (Rajasthan High Court): (Rajmal and others Vs. State of Rajasthan):

“12. I have carefully examined the evidence as stated above and find that the prosecution has not satisfactorily proved that the seal placed on the sample packets remained intact from the time the seal was placed on them till the packets reached the office of the Director, Forensic Science Laboratory. The evidence of the prosecution with regard to who deposited the sealed packets in the malkhana with Abdul Latif is also not consistent. … … Since there is a discrepancy of the manner in which the samples were put in the container, emphasis on complete and satisfactory evidence of the seal remaining intact is necessary and natural. From the above I conclude that there is lot of suspicion about the linking evidence for proving that the seal from the beginning to the end remained intact. The Apex Court in the State of Rajasthan v. Daulat Ram, AIR 1980 SC 1314 : (1980) Cri.L.J. 929) made the following observations: (at page 930 of Cri.L.J):-

“Where the samples of opium changed several hands before reaching the public analyst and yet none of those in whose custody the samples remained were examined by the prosecution to prove that while in their custody the seals on the samples were not tampered with, the inevitable effect of the omission was that the prosecution failed to rule out the possibility of the samples being changed or tampered with during the period in question a fact which had to be proved affirmatively by the prosecution.”

13. My conclusion, therefore, is that the prosecution was to prove that the seal placed on the samples remained intact from the time the seal was placed up to the time the packets reached the office of the Director, Forensic Science Laboratory, Jaipur.”

(j) 1994 Cri.L.J. 1(1) (SC) : Valsala Vs. State of Kerala :

“3. …. Therefore, according to the learned counsel for the appellant, it is highly doubtful whether the very article seized was sent to the Chemical Examiner.

4. … … Therefore the evidence adduced is wholly insufficient to conclude that what was seized from the appellant alone was sent to the Chemical Examiner. Though this is purely a question of fact but this is an important link. Both the Courts below have not examined this aspect in a proper perspective. No doubt the trafficking in narcotic drugs is a menace to the society but in the absence of satisfactory proof the courts cannot convict.”

21. At this juncture, learned Spl.P.P. would contend that there is no contradiction in the seals and neither the seal was tampered, nor the seized properties sent for chemical analyst, were different from the properties seized from the accused. To substantiate his contention, learned Spl.P.P. relied upon the following decisions:

“(a)2008 (8) SCC 292 : State of Haryana Vs. Mai Ram:

” Criminal Procedure Code, 1973–S.374(2)–Appeal against conviction–Appreciation of evidence by High Court–Seals intact or broken–Trial Court found that seals intact as deposed by official witnesses–High Court’s conclusion that there was no evidence to show that seals were intact, held, is abrupt and therefore, unsustainable–Narcotic Drugs and Psychotropic Substances Act, 1985, S.17″

(b) 2003 Drugs Cases (Narcotics) 695 : Punjab and Haryana High Court : Ajmer Singh Vs. State of Punjab:

“21. … … The sample was sent on 6.10.97. There is no seal impression slip of this date. Once we are of the view that there was no chance of tampering with the seal at any juncture, the contravention of the instructions, if any would not be fatal to the prosecution at all as no prejudice is shown to have been caused on that count. Our view is strengthened by the observation of Hon’ble Apex Court rendered in Khet Singh Vs. Union of India, 2002 Drugs Cases (Narcotics) 76 : 2002 (4) SCC 380.”

“5. …. We have perused the evidence adduced in this case. PW-4 Sub Inspector, Ram Chander, had collected the sample of the opium recovered from the respondent. PW-4 deposed: “The sample and the residue were sealed with the seal of A.S. The seal after use was handed over to Badan Singh and the sample and the case property were taken into possession vide memo EX.PH attested by me and PW Badan Singh. Case property is Ex.P1 and the sample is Ex.P2 and the ‘thelais’ Ex.P3. After that, the police party along with the accused and the case property went to the SHO PS Tosham, who had verified the facts from the accused as well as from the witnesses and checked the case property and the sample. He affixed his own seal of “RKB” on the sample and the residue.” PW-4 did not say that the packet of the sample was opened and fresh ‘As’ seal put thereon.”

22. In the present case, as per the evidence of P.W.3 chemical analyst, on 28.2.2002, P.W.4 handed over four brown colour packets, namely S1, S3, S5 and S7 along with the Court memo and the seals were in tact. P.W.3 in his evidence in chief examination stated that, @/////28/2/02?k; njjp. ,e;j ePjpkd;w fojj;Jld;. jpU/rPdpth!; Ez;zwpt[ mjpfhhp. vd;/rp/gp/ mth;fs; 4 gput[d; fyh; ghf;bfl;Lf;fis bfhz;L te;jhh;/ me;j ghf;bfl;Lfspy; itf;fg;gl;oUe;j rPy;fs; cilahky; KGikahf ,Ue;jd//////@. Moreover, in his evidence, P.W.3 also stated the quantity in the packets of the samples as S1 packet–5.88 gms., S3 packet–4.9 gms., S5 packet–5.9 gms. and S.7 packet–5.3 gms. It is also to be noted that the sample packets contained crime number/case number. So, the argument advanced by learned counsel for the appellants-A.1 and A.2 that the samples sent for chemical analysis, are doubtful and the identity of the samples not proved, is not acceptable.

23. Merely because P.W.3 in his report Ex.P-17 mentioned 3 NCB seals and one Court seal, and P.W.4 mentioned as four NCB seals, it will not disprove the samples sent. As per the decision of the Supreme Court reported in 2008 (8) SCC 292 (cited supra), I am of the view that there is no tampering of the seals and so, the evidence of P.Ws.3 and 4 clearly proved that the properties what were seized from the accused on 21.2.2002, were sent for chemical analysis on 28.2.2002. In the above circumstances, I am of the view that the prosecution has proved that the properties which were seized from the accused alone have been sent for chemical analysis and the report of P.W.3 chemical analyst, has also been received as per Ex.P-17.

24. Further, while considering the evidence of P.Ws.1,2,4 and 6, there is no dispute in respect of the identity of the samples. As per the evidence of P.W.4, he produced the same samples before the Court, it contained four seals, but the Court also put one more seal of the Court and sent the same through P.W.4 for sending the same to Forensic Sciences Laboratory. P.W.3 received the samples and he has categorically stated in his evidence that all the four packets were sealed and were intact with three NCB seals and the Court seal. In the above circumstances, I am of the view that the argument advanced by learned counsel for the appellants/A.1 and A.2 that the identity of the samples is doubtful, does not merit acceptance.

25. Further, learned counsel for the appellants-A.1 and A.2 would contend that there is a delay in producing the seized articles before the Special Court, and it creates a doubt and he further submitted that the properties and the accused were produced on 22.2.2002 before the Metropolitan Magistrate in his residence and the Magistrate returned the properties to the investigating officer and directed the same to be produced before the Special Court under NDPS Act, on or before 28.2.2002.

26. Admittedly, the NCB Official produced the properties as per Ex.P-23 on 28.2.2002. So, learned counsel for the appellants-A.1 and A.2 would submit that non-producing the seized materials in time before Court, is fatal to the case of the prosecution, does not merit acceptance, because, after arrest of A.1 and A.2, along with the material objects, were produced before the remanding officer/Metropolitan Magistrate, who remanded A.1 and A.2 to judicial custody and as per Ex.P-20 remand report, the Magistrate endorsed on 22.2.2002 that, “A.1, A.2 produced before me at 10.30 p.m. at my residence today. Grounds for the arrest explained. No complaints against NCB Officials. Records perused. A.1, A.2 remanded to judicial custody till 8.3.2002.” The Magistrate also received the properties as directed and two accused A.1 and A.2 with warrant. These facts have been recorded by the Magistrate. In Ex.P-20 arrest memo, in the remand application, it was stated in paragraph 7 that, “…The list of properties submitted is given in Annexure-III.” In Annexure-III therein, there is an endorsement by the learned Magistrate to the following effect:

“22.2.2002 at 10.30 p.m.
Properties as per the list totalling 15 items and numbered as P1 to P6 and S1 to S8 and P1 dated 22.2.2002 verified and they are in sealed covers except P5, a sealed bag. The properties returned to the IO and directed to be produced before the Hon’ble NDPS Court on or before 28.2.2002”.

So, on 22.2.2002 at 10.30 p.m., the Magistrate himself verified and made an endorsement and in the abovesaid circumstances, the argument advanced by learned counsel for the appellants/A.1 and A.2 that the material objects/properties have been produced before the Special Court on 28.2.2002, has created doubt in the identity of the properties, does not merit acceptance.

IV. 27. In view of the reasonings given above, the next submission of the learned counsel for the appellants/A.1 and A.2 that as the go-down register has not been submitted and go-down keeper has not been examined, the same is fatal to the case of the prosecution, also does not merit acceptance, because, as per Ex.P-22 go-down receipt, the properties were received by the Officer-in-charge of the go-down on 22.2.2002, i.e. by P.W.6 Mr.Punnen, Assistant Director.

V. 28. The next argument advanced by learned counsel for the appellants/A.1 and A.2 is that P.W.5 who was working in CBI Department, is not an independent witness. Since the alleged seizure has taken place in public place and that too, in Central Railway Station, neither any independent witness was cited as an attestor for the seizure and the statements of the witnesses and the accused, nor the independent witness was examined before Court. As soon as P.W.1 received information, she sent Ex.P-1 under Section 42 of the NDPS Act, to her superior officer P.W.6 and then, as per the requisition Ex.P-6 sent by P.W.6 to Superintendent of Police, CBI, Chennai, for sending two Officers for witnessing the search, P.W.5 and one Mugilan were sent and they were present for seizure and they have gone to the place of seizure, namely Central Railway Station. Admittedly, P.W.5 and Mugilan were working in the CBI Office and they were Central Government employees working in a separate entity CBI. P.W.5 along with Mugilan, were attestors to the search report and seizure mahazar and the statements of the accused Section 67 of the NDPS Act were also recorded from A.1 and A.2, which are Exs.P-11 and P-32 respectively.

29. In this context, it is worthwhile to refer Sections 42 and 56 of the NDPS Act, which read as follows:

“Section 42: Power of entry, seizure and arrest without warrant or authorisation: (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotic, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in his behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an office punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,–

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; and

(d) detain and search, and if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:

Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.”

“Section 56: Obligation of officers to assist each other.– All officers of the several departments mentioned in section 42 shall, upon notice given or request made, be legally bound to assist each other in carrying out the provisions of this Act.”

30. In the present case, P.W.5 and Mugilan, who were working in the C.B.I. Office, not connected with NCB Office, are only independent witnesses and the trial Court in paragraph 20 of its judgment, has discussed the same and came to the correct conclusion that P.W.5 is an independent witness. So, I do not find any merit in the argument advanced by learned counsel for the appellants/A.1 and A.2 that P.W.5 is not an independent witness.

VI. 31. It is next contended by learned counsel for the appellants/A.1 and A.2 that the statements of the accused under Section 67 of the NDPS Act, in Ex.P-11 and P-32, are inadmissible in evidence. He further submitted that the confession statements under Section 67 of the NDPS Act, alleged to have been given by A.1 in Ex.P-11 and by A.2 in Ex.P-32 and the summons issued to the accused in Exs.P-10 and 31 respectively, are not in accordance with law and the confession statements recorded after A.1 and A.2 were arrested, are not valid in law and it is inadmissible in evidence. Learned counsel further submitted that as per the evidence of P.Ws.1,2,4 and 5 on 21.2.2002 at 10 a.m., they surrounded A.1 and A.2, then they made a search and seized material objects and completed their search proceedings and seizure of the material objects at 2 p.m. and then only, they issued Exs.P-10 and P-31 summons and in pursuance of the same, they appeared before the NCB Office and recorded the confession statements of A.1 and A.2 in Exs.P-11 and 32 respectively.

32. At this juncture, learned counsel for the appellants/A.1 and A.2 submitted that after the search process was over on 21.2.2002 and till the accused were produced before the Metropolitan Magistrate for remand, they were not set free and so, even though there is no arrest shown, but as per the arrest memos in Exs.P-13 and 33, the arrest has been shown only on 22.2.2002 at 5.30 p.m. and till then, they were in the custody of the NCB Officials and hence, it amounts to arrest and the guidelines of the Supreme Court in D.K.Basu’s case (D.K.Basu vs. State of West Bengal (1997 SCC (Cri) 92) ), have not been followed and hence, learned counsel contended that the statements of the accused under Section 67 of the NDPS Act in Exs.P-11 and 32, are inadmissible in evidence.

33. In this context, it is appropriate to consider the argument advanced by learned Special Public Prosecutor who submitted that it is true that on the basis of the information/Ex.P-1 under section 42 of the NDPS Act, which has been sent to the higher official and as per Ex.P-2, they sought for assistance from the CBI Department and the CBI Office deputed P.W.5 and Mugilan for attesting the documents and witnessing the search and in pursuance of the same, search was also made and summons have also been issued to the accused and that the search has also been completed on 21.2.2002 at 2 p.m. Since the NCB Officials wanted to make further enquiry whether or not to fix the liability, then only they issued summons in Ex.P-10 and Ex.P-31 to A.1 and A.2 respectively and in pursuance of the same, they also recorded confession statements from A.1 and A.2 under Section 67 of the NDPS Act in Ex.P-11 and Ex.P-32 respectively.

34. Then, on 21.2.2002, A.1 was taken by P.W.2 to A.1’s residence at Halls Road, Egmore, Chennai, and search has been made and some of the materials for creating false bottom in the bag, have been found in the residence of A.1. It is also to be noted that P.W.4 along with A.1 also went to the place where A.1 was residing and made a search in Tass Villa, Halls Road, Egmore, Chennai, which started at 12 hours and ended at 12.30 hours on 22.20202, which is evidenced by Ex.P-18 mahazar and then only the accused were arrested.

35. In the above circumstances, only before arrest, Section 67 statements of the accused have been recorded from A.1 and A.2.

36. In this regard, it is appropriate to consider the decision relied upon by the learned counsel for both sides. Learned counsel for the appellants/A.1 and A.2 relied on the following decisions:

“(a) 2009 (2) Crimes 171 (SC) (U.O.I. Vs. Bal Mukund and others):

“27. Exhibits 20 and 21 categorically show that they were interrogated. If they were interrogated while they were in custody, it cannot be said that they had made a voluntary statement which satisfies the conditions precedent laid down under Section 67 of the Act. We, in the backdrop of the aforementioned events, find it difficult to accept that such statements had been made by them although they had not been put under arrest. As the authorities under the Act can always show that they had not formally been arrested before such statements were recorded, a holistic approach for the aforementioned purpose is necessary to be taken.”

(b) MANU/SC/2913/2008: Noor Aga Vs. State of Punjab and another:

“95. The High Court should have considered the question having regard to the stand taken by the appellant. Only because certain personal facts known to him were written, the same by itself would not lead to the conclusion that they were free and voluntary.”

37. Per contra, learned Spl.P.P. relied on the following decisions:

(a) 2008 (4) SCC 668 (Kanhaiyalal Vs. Union of India)
“41. A parallel may be drawn between the provisions of Section 67 of the NDPS Act and Sections 107 and 108 of the Customs Act and to a large extent Section 32 of the Prevention of Terrorism Act, 2002 and Section 15 of the Terrorist and Disruptive Activities (Prevention) Act, 1987. These are all special Acts meant to deal with special situations and circumstances. While the provisions of the Prevention of Terrorism Act, 2002 and the TADA Act, 1987 are much more stringent and exclude from their purview the provisions of Sections 24 to 27 of the Evidence Act with regard to confession made before a police officer, the provisions relating to statements made during inquiry under the Customs Act and under the NDPS Act are less stringent and continue to attract the provisions of the Evidence Act. In the case of both the latter enactments, initially an inquiry is contemplated during which a person may be called upon to provide any information relevant to the inquiry as to whether there has been any contravention of the provisions of the Act or any rule or order made thereunder. At that stage the person concerned is not an accused although he may be said to be in custody. But on the basis of the statements made by him he could be made an accused subsequently. What is important is whether the statement made by the person concerned is made during inquiry prior to his arrest or after he had been formally charged with the offence and made an accused in respect thereof. As long as such statement was made by the accused at a time when he was not under arrest, the bar under Sections 24 to 27 of the Evidence Act would not operate nor would the provisions of Article 20(3) of the Constitution be attracted. It is only after a person is placed in the position of an accused that the bar imposed under the aforesaid provision will come into play.

42. Of course, this Court has also held in Pon Adithan case (Pon Adithan Vs. Dy. Director, Narcotics Control Bureau–1999 (6) SCC 1 : 1999 SCC (Cri) 1051) that even if a person is placed under arrest and thereafter makes a statement which seeks to incriminate him, the bar under Article 20(3) of the Constitution would not operate against him if such statement was given voluntarily and without any threat or compulsion and if supported by corroborating evidence.

43. The law involved in deciding this appeal has been considered by this Court from as far back as in 1963 in Pyare Lal Bhargava case (Pyare Lal Bhargava Vs. State of Rajasthan–AIR 1963 SC 1094 : 1963 Supp (1) SCR 689). The consistent view which has been taken with regard to confessions made under provisions of Section 67 of the NDPS Act and other criminal enactments, such as the Customs Act, 1962, has been that such statements may be treated as confessions for the purpose of Section 27 of the Evidence Act, but with the caution that the court should satisfy itself that such statements had been made voluntarily and at a time when the person making such statement had not been made an accused in connection with the alleged offence.

44. In addition to the above, in Raj Kumar Karwal v. Union of India (1990 (2) SCC 409 : 1990 SCC (Cri) 330) this Court held that officers of the Department of Revenue Intelligence who have been vested with powers of an officer in charge of a police station under Section 53 of the NDPS Act, 1985, are not “police officers” within the meaning of Section 25 of the Evidence Act. Therefore, a confessional statement recorded by such officer in the course of investigation of a person accused of an offence under the Act is admissible in evidence against him. It was also held that power conferred on officers under the NDPS Act in relation to arrest, search and seizure were similar to powers vested on officers under the Customs Act. Nothing new has been submitted which can persuade us to take a different view.

45. Considering the provisions of Section 67 of the NDPS Act and the views expressed by this Court in Raj Kumar Karwal case (Raj Kumar Karwal v. Union of India (1990 (2) SCC 409 : 1990 SCC (Cri) 330) with which we agree, that an officer vested with the powers of an officer in charge of a police station under Section 53 of the above Act is not a “police officer” within the meaning of Section 25 of the Evidence Act, it is clear that a statement made under Section 67 of the NDPS Act is not the same as a statement made under Section 161 of the Code, unless made under threat or coercion. It is this vital difference, which allows a statement made under Section 67 of the NDPS Act to be used as a confession against the person making it and excludes it from the operation of Sections 24 to 27 of the Evidence Act.

46. There is nothing on record to suggest that the appellant was compelled under threat to make the statement after he had been placed under arrest which renders such statement inadmissible and not capable of being relied upon in order to convict him. On the other hand, there is the evidence of PW 9 upon which the High Court has relied in convicting the appellant. It may once again be mentioned that no question in cross-examination had been put to PW 9 in this regard and the version of the said witness must be accepted as corroborative of the statement made by the accused.”

(b) 1997 (3) SCC 721 (K.I.Pavunny Vs. Asst. Collector (HQ), Central Excise Collectorate):

“Though the authority/officer on suspecting a person of having committed the crime under the Act can record his statement, such a person perforce is not a person accused under the Act. Appellant was not a person accused of the offence under the Act when he gave his confessional statement under Section 108 of the Act on 6.12.1980 at 1.00 p.m. in the Office of the Superintendent of Customs, PW 2. The assumption that the appellant was an accused as on 6.12.1980, is erroneous, since as on that date no formal complaint had been laid against the appellant. Hence, a statement recorded or given by the person suspected of having committed an offence during the inquiry under Section 108 of the Act or during confiscation proceedings is not a person accused of the offence within the meaning of Section 24 of the Evidence Act.

A person whose statement of being suspected by the authority/officer of having committed an offence, is recorded by that authority/officer becomes accused of the offence under the Act only when a complaint is laid by the competent Customs Officer in the Court of competent jurisdiction or Magistrate to take cognizance of the offence and summons are issued.

Though the Customs Officer is an authority within the meaning of Section 24 of the Evidence Act, by reason of statutory compulsion of recording the statement of the accused giving voluntary statement pursuant to his appearing either after issuance of summons or after the appellant’s surrender, such statement cannot be characterised to have been obtained by threat, inducement or promise.

While giving the confessional statement under Section 108 of the Customs Act, the appellant was under a legal duty to state the facts truthfully lest he would be liable to prosecution. The threat emanates from and is that of the statute and the officers merely enforced the law. The allegations as to the threat of implication of his wife an afterthought as he had not mentioned the same when he appeared before the Magistrate and obtained bail.”

“7. Moreover, we have in this case the confessional statement (Ext. P-3) made by the appellant which corroborates the evidence of PW 1. It was, however, submitted by Mr.Lalit that the courts below had committed a grave error in relying upon the said confessional statement and this Court also should not rely upon the same as the accused had retracted the same and categorically stated that it was not voluntarily made by him. He submitted that the said statement was made while he was in custody and as stated by the appellant in his statement under Section 313 Cr.P.C. it was given by him under threat and pressure. PW 1 had taken the appellant to her office and the confessional statement came to be recorded at about 8 p.m., no doubt, while the appellant was in custody of PW 1. But that by itself cannot be regarded as sufficient to hold that the confessional statement was made by the appellant under pressure or compulsion. No complaint was made by the appellant when he was produced before the Magistrate on the next day nor had he made any complaint thereafter till his statement came to be recorded under Section 313 Cr.P.C. It was only during the trial that a suggestion was made to PW 1 and subsequently when the appellant gave a statement under Section 313 Cr.P.C. he stated that the confessional statement was given by him under threat and pressure. Even while giving his statement under Section 313 Cr.P.C. the appellant had not stated what was the nature of the threat given to him or in which manner the pressure was brought upon him. It was a vague statement. If in such circumstances the trial court held that the confessional statement was voluntarily made and thought it safe to rely upon the same it cannot be said that it committed any error in doing so. We are also of the view that the said confessional statement was made by the appellant voluntarily and, therefore, it can be used against him.”

(d) 2008 (5) SCC 385 (Ram Kumar Vs. Central Bureau of Narcotics):

“Narcotics Drugs and Psychotropic Substances Act, 1985–Ss.67, 8 and 22–Conviction under–No retraction of voluntary confession–Minor variations in the testimony of Pws.2 and 4–On facts, held, the conviction maintainable–Criminal trial–Appreciation of evidence–Minor contradictions and inconsistencies, held on facts, immaterial.”

38. Further, in the decision reported in CDJ 2009 SC 1018 (Raju Premji and another Vs. Customs NER Shillong Unit and another), it was held by the Supreme Court that any statement made by the accused while in custody of a Police Officer would be inadmissible in evidence in terms of Section 26 of the Indian Evidence Act and as per Section 26 of the Indian Evidence Act, relating to “Confession by the accused while in custody of Police, not to be proved against him”, no confession made by any person whilst he is in the custody of a Police-Officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.” It was further held in the said decision as follows:

“22. We would, for this purpose, assume that such confessions are not hit with Section 25 of the Evidence Act, 1872 but even then they must receive strict scrutiny.

This Court in Kanhaiyalal v. Union of India [ (2008) 4 SCC 668 ], upon taking into consideration number of decisions, held as under:-

“43. The law involved in deciding this appeal has been considered by this Court from as far back as in 1963 in Pyare Lal Bhargava case. The consistent view which has been taken with regard to confessions made under provisions of Section 67 of the NDPS Act and other criminal enactments, such as the Customs Act, 1962, has been that such statements may be treated as confessions for the purpose of Section 27 of the Evidence Act, but with caution that the court should satisfy itself that such statements had been made voluntarily and at a time when the person making such statement had not been made an accused in connection with the alleged offence.”

23. Whether a confessional statement is voluntary and free from any pressure must be judged from the facts and circumstances of each case. This Court in Mohtesham Mohd. Ismail v. Spl. Director, Enforcement Directorate [ (2007) 8 SCC 254 ], has held as under:-

“20. We may, however, notice that recently in Francis Stanly v. Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram this Court has emphasised that confession only if found to be voluntary and free from pressure, can be accepted. A confession purported to have been made before an authority would require a closer scrutiny. It is furthermore now well settled that the court must seek corroboration of the purported confession from independent sources.”

In Noor Aga v. State of Punjab and another, [ 2008 (9) SCALE 681 ], this Court held:-

“102. Section 25 of the Evidence Act was enacted in the words of Mehmood J. in Queen Empress v. Babulal [ ILR (1884) 6 All. 509 ] to put a stop the extortion of confession, by taking away from the police officers as the advantage of providing such extorted confession during the trial of accused persons. It was, therefore, enacted to subserve a high purpose.”

24. In any event if they were in custody of the police officers as also the customs officers, although they were not accused in strict sense of the term, any confession made by them would not be admissible in terms of Section 26 of the Evidence Act, 1872.

25. Learned counsel has relied upon a decision of the Kerala High Court in Kochan Velayudhan v. State of Kerala,[AIR 1961 Kerala 8], wherein it was observed:

“21. In Ramrao Ekoba v. The Crown, AIR 1951 Nag 237 Hemeon,J, held that:

Although the failure to comply with the provisions regulating searches may cast doubts upon the bona fide of the officers conducting the search, there is nothing in law which makes the evidence relating to an irregular search inadmissible and a conviction based on such evidence is not invalid on that ground alone.”

26. The confession was retracted by accused No.4 only after a few days. The learned Special Judge has taken into consideration the fact of such retraction. Taking into consideration the facts and circumstances of the case, we are of the firm opinion that confession cannot be said to have been made by the appellants voluntarily.

As the appellants were not found to be in possession of the contraband, the burden of proof never shifted on them.”

39. Considering the above citations along with the case in our hand, after the confession statements have been recorded, the accused were arrested as per the arrest memos, Exs.P-13 and 33, of A.1 and A.2, respectively at 5.30 p.m. on 22.2.2002 and then they were handed over and produced before the Metropolitan Magistrate, as seen from Ex.P-20 remand report, wherein, the Magistrate made an endorsement that, “A.1 and A.2 produced before me at 10.30 p.m. at my residence today. Grounds for the arrest explained. No complaints against NCB officials. Records perused. A.1, A.2 remanded to judicial custody till 8.3.2002.”

40. It is pertinent to note that after the statements of the accused, under Section 67 of the NDPS Act, were recorded, then only the accused were arrested and they were remanded before the Metropolitan Magistrate at 10.30 p.m. on 22.2.2002 and when the learned Magistrate made an enquiry before the accused, A.1 and A.2 have not made allegations against the complainant-NCB Officials and the accused have not retracted the confession statements Ex.P-11 and P-32 respectively. Only during the trial, they have retracted the confession. Nearly after a year or two, during the trial in 2003/2004, they have retracted from their confession statements. In the decision of the Apex Court reported in 2008 (5) SCC 385 (cited supra), it was held therein that there was no retraction of the voluntary confession and there are minor variations in the testimony of the witnesses, which will not affect the conviction. So, I am of the view that the prosecution has proved that the statements of the accused under Section 67 of the NDPS Act, recorded as per Exs.P-11 and 32, are true and admissible in evidence.

VII. 41. Next, learned counsel for the appellants/A.1 and A.2 would submit that during questioning under Section 313 Cr.P.C., no specific question has been posed to the accused in respect of the possession of the contraband, and hence, the accused were not in a position to explain their case and hence, it is adverse to the interest of the accused, which caused prejudice to the accused. Learned counsel further submitted that since no specific question has been posed to the accused, they were not in a position to explain as to how the accused were in possession of the contraband and hence, the conviction is liable to be set aside. To substantiate the same, learned counsel for the appellants-A.1 and A.2 would rely upon the following decisions:

(a) 2009 (2) SCC (Cri) 243 = 2009 (4) SCC 200: (State of Punjab Vs. Hari Singh):

“16. In the present case, though, there was evidence regarding conscious possession, but, unfortunately, no question relating to possession, much less conscious possession was put to the accused under Section 313 CrPC. The questioning under Section 313 CrPC is not an empty formality.

17. “7. A few decisions of this Court need to be noticed in this context.

…. ….

16. Contextually we cannot bypass the decision of a three-Judge Bench of this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973 (2) SCC 793 : 1973 SCC (Cri) 1033) as the Bench has widened the sweep of the provision concerning examination of the accused after closing prosecution evidence. Learned Judges in that case were considering the fallout of omission to put to the accused a question on a vital circumstance appearing against him in the prosecution evidence. The three-Judge Bench made the following observations therein: (SCC p.806, para 16)
“16. … It is trite law, nevertheless fundamental, that the prisoner’s attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction.”

17. The above approach shows that some dilution of the rigour of the provision can be made even in the light of a contention raised by the accused that non-questioning him on a vital circumstance by the trial court has caused prejudice to him. The explanation offered by the counsel of the accused at the appellate stage was held to be a sufficient substitute for the answers given by the accused himself.

18. What is the object of examination of an accused under Section 313 of the Code? The section itself declares the object in explicit language that it is “for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him”. In Jai Dev v. State of Punjab AIR 1963 SC 612, Gajendragadkar, J. (as he then was) speaking for a three-Judge Bench has focused on the ultimate test in determining whether the provision has been fairly complied with. He observed thus: (AIR p.620, para 21)
“21. … The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to inquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity.”

19. Thus it is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion.

… …

24. We think that a pragmatic and humanistic approach is warranted in regard to such special exigencies. The word “shall” in clause (b) to Section 313(1) of the Code is to be interpreted as obligatory on the court and it should be complied with when it is for the benefit of the accused. But if it works to his great prejudice and disadvantage the court should, in appropriate cases e.g. if the accused satisfies the court that he is unable to reach the venue of the court, except by bearing huge expenditure or that he is unable to travel the long journey due to physical incapacity or some such other hardship, relieve him of such hardship and at the same time adopt a measure to comply with the requirements in Section 313 of the Code in a substantial manner. How could this be achieved?

….

(Ed. As observed in Keya Mukherjee v. Magma Leasing Ltd. (2008) 8 SCC 447, pp.449-55 : (2008) 3 SCC (Cri) 537, pp 539-45, paras 7-12).

18. When the accused was examined under Section 313 CrPC, the essence of accusation was not brought to his notice, more particularly, that possession aspect, as was observed by this Court in Avtar Singh v. State of Punjab ((2002) 7 SCC 419 : 2002 SCC (Cri) 1769). The effect of such omission vitally affects the prosecution case.”

(b) 2002 SCC (Cri) 1769 = 2002 (7) SCC 419: (Avtar Singh Vs. State of Punjab):

“6. …. … but the fact remains that in the course of examination under Section 313 CrPC, not even a question was asked that they were the persons in possession of poppy husk placed in the vehicle. The only question put to them was that as per the prosecution evidence, they were sitting on the bags of poppy husk. Strangely enough, even the driver was questioned on the same lines. The object of examination under Section 313, it is well known, is to afford an opportunity to the accused to explain the circumstances appearing in the evidence against him. It is unfortunate that no question was asked about the possession of goods. Having regard to the charge of which the appellants were accused, the failure to elicit their answer on such a crucial aspect as possession, is quite significant. … … The approach of both the courts is erroneous in law. Both the courts rested their conclusion on the fact that the accused failed to give satisfactory explanation for travelling in the vehicle containing poppy husk at an odd hour. But the other relevant aspects pointed out above were neither adverted to nor taken into account by the trial court and the High Court. Non-application of mind to the material factors has thus vitiated the judgment under appeal.”

42. In this context, learned Spl.P.P. submitted that the appellants/A.1 and A.2, were given fair opportunity to cross-examine all the witnesses and they also cross-examined the witnesses in threadbare in respect of the possession of the contraband and other charges levelled against the accused. Merely because no simpliciter/specific question has been posed in respect of the possession of the contraband, it will not vitiate the conviction imposed by the trial Court. In support of his submissions, learned Spl.P.P. relied upon the following decisions:

(a) AIR 1999 SC 2355 : 1999 (6) SCC 1: Pon Adithan Vs. Deputy Director, Narcotics Control Bureau, Madras:

“7. Moreover, we have in this case the confessional statement (Ext. P-3) made by the appellant which corroborates the evidence of PW 1. It was, however, submitted by Mr Lalit that the courts below had committed a grave error in relying upon the said confessional statement and this Court also should not rely upon the same as the accused had retracted the same and categorically stated that it was not voluntarily made by him. He submitted that the said statement was made while he was in custody and as stated by the appellant in his statement under Section 313 CrPC it was given by him under threat and pressure. PW 1 had taken the appellant to her office and the confessional statement came to be recorded at about 8 p.m., no doubt, while the appellant was in custody of PW 1. But that by itself cannot be regarded as sufficient to hold that the confessional statement was made by the appellant under pressure or compulsion. No complaint was made by the appellant when he was produced before the Magistrate on the next day nor had he made any complaint thereafter till his statement came to be recorded under Section 313 CrPC. It was only during the trial that a suggestion was made to PW 1 and subsequently when the appellant gave a statement under Section 313 CrPC he stated that the confessional statement was given by him under threat and pressure. Even while giving his statement under Section 313 CrPC the appellant had not stated what was the nature of the threat given to him or in what manner pressure was brought upon him. It was a vague statement. If in such circumstances the trial court held that the confessional statement was voluntarily made and thought it safe to rely upon the same it cannot be said that it committed any error in doing so. We are also of the view that the said confessional statement was made by the appellant voluntarily and, therefore, it can be used against him.”

(b) 2005 Drugs Cases (Narcotics) 413 (SC) = 2005 (6) SCC 101: State of Punjab Vs. Sawaran Singh:

“9. The only reason given by the learned Single Judge of the High Court for acquitting the accused is that the evidence of PW 1 and PW 4 was not specifically put to the accused under Section 313 Cr.P.C. and it was held that in the absence of these facts in the form of questions to the accused, the evidence could not have been used against him. It is also pertinent to note in this regard that when PW 1 and PW 4 were examined as witnesses, the accused did not seriously dispute the evidence of PW 1 or PW 4. … …. Except making a general suggestion, the accused had completely admitted the evidence of PW 1 and PW 4 as regards the receipt of the sample, sealing of the same and sending it to the Chemical Analyst. This was pointed out only to show that the accused was not in any way prejudiced by the fact of not having been questioned by making a specific reference to the evidence of PW 1 and PW 4. … …

10. The questioning of the accused is done to enable him to give an opportunity to explain any circumstances which have come out in the evidence against him. It may be noticed that the entire evidence is recorded in his presence and he is given full opportunity to cross examine each and every witness examined on the prosecution side. He is given copies of all documents which are sought to be relied on by the prosecution. Apart from all these, as part of fair trial the accused is given opportunity to give his explanation regarding the evidence adduced by the prosecution. However, it is not necessary that the entire prosecution evidence need be put to him and answers elicited from the accused. If there were circumstances in the evidence which are adverse to the accused and his explanation would help the court evaluating the evidence properly, the court should bring the same to the notice of the accused to enable him to give any explanation or answers for such adverse circumstances in the evidence. Generally, composite questions shall not be asked to accused bundling so many facts together. Questions must be such that any reasonable person in the position of the accused may be in a position to give rational explanation to the questions as had been asked. There shall not be failure of justice on account of an unfair trial.

11. In State (Delhi Admn.) Vs. Dharampal (2001) 10 SCC 372, it was held as under:

“That it is to be seen that where an omission, to bring the attention of the accused to an inculpatory material has occurred, that does not ipso facto vitiate the proceedings. The accused must show that failure of justice was occasioned by such omission. Further, in the event of an inculpatory material not having been put to the accused, the appellate court can always make good that lapse by calling upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against the accused but not put to him.”

12. In Jai Dev. Vs. State of Punjab, AIR 1963 SC 612, it was observed thus:

“The Ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to inquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity.”

13. In Bakshish Singh vs. State of Punjab, AIR 1967 SC 752, a three judge bench of this Court held that:

“It was not all necessary that each separate piece of evidence in support of a circumstance should be put to the accused and he should be questioned in respect of it under that section.”

14. In Shivaji Sahabrao Bobade vs. State of Maharashtra, (1973) 2 SCC 793 a three judge bench of this Court considering the fallout of omission to put to the accused a question on a vital circumstance appearing against him in the prosecution evidence, widening the sweep of the provision concerning examination of the accused after closing prosecution evidence made the following observations:

“It is trite law, nevertheless fundamental, that the prisoner’s attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstance established against him not put to him if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused has been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction.”

15. In the instant case, the accused was not in any way prejudiced by not giving him an opportunity to answer specifically regarding the evidence of PW 1 and PW 4. If at all, the evidence of PW 1 and PW 4 was recorded in his presence, he had the opportunity to cross-examine the witnesses but he did not specifically cross-examine these two witnesses in respect of the facts deposed by them. The learned Single Judge seriously erred in holding that the evidence of PW 1 and PW 4 could not have been used against the accused. The acquittal of the accused was improper as the evidence in this case clearly established that the accused was in possession of 5 Kg of opium and thereby committed the offence under Section 18 of the NDPS Act.”

“As all the material evidence brought on record by the prosecution had been brought to the appellant’s notice, it has not been shown as to how he was prejudiced, particularly when his son was examined as a witness. He could have given his side of the story which, according to him, could have proved his defence, on the basis of the material brought on record. Submission of the appellant that the judgment of conviction and sentence stands vitiated by reason of non-compliance with the provisions of Section 313 CrPC, thus, cannot be accepted.”

(d) 2006 (12) SCC 512: Yuvaraj Ambar Mohite Vs. State of Maharashtra:

“28. It may be true that the attention of the appellant had not been drawn to the contents of the reports of the forensic laboratory but the same does not vitiate the judgment of conviction and sentence as he was not prejudiced thereby.”

43. Furthermore, the learned counsel for the appellants/A.1 and A.2 has not culled out as to how the accused were prejudiced for not posing specific questions during Section 313 Cr.P.C. questioning. Considering the above citations and while perusing the questions posed on the accused during their questioning under Section 313 Cr.P.C., in Question Nos.9 to 17 posed on the accused, it is seen that appropriate questions have been posed therein, before the accused and they stated the same to be false and they do not know anything. In question No.28, which has been posed in respect of the confession recorded under Section 67 of the NDPS Act from A.1 in Ex.P-11, he has given answer that he does not know and he has signed the paper only on harassment and he further stated that he, along with A.2, went to Jaipur, but not Ajmeer. In question No.31, he has stated that he was arrested only on 22.2.2002 in Das Villa, Halls Road, Egmore, Chennai. So, while perusing Section 313 Cr.P.C. questioning of the accused, simple questions have been posed on the accused and after they have understood the questions, they gave appropriate answers to the questions. In the above circumstances, I am of the view that the argument advanced by learned counsel for the appellants-A.1 and A.2 that since no specific/simple question has been posed, it vitiates the conviction, does not merit acceptance.

VIII. 44. In respect of the possession of contraband, learned counsel for the appellants/A.1 and A.2 would submit that there is no specific answer given by the prosecution witnesses to show as to who handed over the material objects/contraband to P.W.1, as some of the witnesses have mentioned the name of A.1 and some of the witnesses have mentioned the name of A.2 and so, there is variation between the evidence of P.Ws.1,2,4 and 5 and hence, the “benefit of doubt” has to be given in favour of the accused.

45. At this juncture, it is appropriate to consider the oral evidence of P.W.1, P.W.2 and P.W.7, who have deposed that both the accused took the contraband in blue black travelling bag, in which the contraband has been concealed in false bottom of the bag and handed over to P.W.1. P.W.5, in her evidence in chief examination, would state that A.2 took four polythene packets from the travelling bag and handed over the same to A.1, who in turn handed over the same to P.W.1. P.W.5 thus stated in chief examination as follows:

@ //////// espdp uh$d; M$h; vjphp 1.2?dplk; c’;fsplk; nghijg; bghUs; ,Uf;fpd;wjh vd;W nfl;llhh;fs;/ mjw;F 2tJ vjphp uh$h vd;fpd;w ypz;lh; Mh;gh;;l; mtUila ouhty; ngf;fpypUe;J ehd;F ghypj;jPd; ghf;bfl;Lfis gGg;g[epw gt[lh; cs;sij 1tJ vjphp bksrk; vd;gthplj;jpy; bfhLj;jhh;/ mij 1tJ vjphp bksrk; vd;gth; espdp uh$d; mjpfhhpaplj;jpy; bfhLj;jhh;/ ////@
But, P.W.1 in her evidence, in cross examination, has stated that A.1 has removed the false bottom of the bag and took the concealed contraband from the false bottom and handed over to A.2, who in turn handed over the same to P.W.1. P.W.1 in her cross examination stated as follows:

@ ////// 1tJ vjphp jhd; bksrk; me;j ngf;fpy; ,Ue;j mog;ghfj;ij gphpj;J. mjd; fPnH kiwj;J itf;fg;gl;oUe;j ehd;F bcwuhapd; bghl;ly’;fis 2tJ vjphpaplj;jpy; vLj;Jf; bfhLj;jhh;/ 2tJ vjphp ypz;ld; me;j igapypUe;J me;j bghl;ly’;fis neuoahf vLj;J jutpy;iy/ 1tJ vjphp. 2J vjphpaplj;jpy; vLj;Jf; bfhLj;jhh;/ 2tJ vjphp ypz;ld; me;j igapypUe;J me;j bghl;ly’;fis neuoahf vLj;J jutpy;iy/ 1tJ vjphp 2tJ vjphpaplj;jpy; me;j bghl;ly’;fis vLj;Jf; bfhLf;f. 2TJ vjphp me;j bghl;ly’;fis vd;dplj;jpy; xg;gilj;jhh; ///////@
P.W.2 in his evidence in chief examination, has stated as follows:

@//////Krhk; vd;w 1?tJ vjphp jd;Dld; te;j 2?tJ vjphpaplkpUe;j ePy fUg;g[ epw ouhtyh;!; igapy; mog;ghfj;jpy; kiwj;J itf;fg;gl;oUe;j 4 bghl;ly’;fis vLj;J 2 vjphpfSk; me;j 4 bghl;ly’;fis espdpuh$k; ,lj;jpy; bfhLj;jhh;fs;/ gpd;g[ mth;fns ,jpy; Rkhh; 2/500 fpnyh vila[s;s bcwuhapd; gt[lh; vd;W brhd;dhh;fs;/ mt;thW vLf;fg;gl;l me;j 4 bghl;ly’;fisa[k;. gphpj;Jg; ghh;f;f. mjpy; ghypj;jPd; fthpy; gGg;g[ epw Jfs;fs; ,Ug;gijf; fz;nlhk;/ mtw;wpypUe;J 4 bghl;ly’;fspy; ,Ue;Jk;. Rpwpjst[ gGg;g[epw Jfs;fis vLj;J. eh’;fs; bfhz;L brd;w ,urhaz fsg;ghpnrhjid K:yk; nrhjid bra;jnghJ. mit bcwuhapd; vd;W tpilaspj;jJ////////@

P.W.2 in his cross examination has stated as follows:

@///////2?tJ vjphp jhd; bfhz;L te;jpUe;j igapd; mog;ghfj;jpy; kiwj;J itf;fg;gl;oUe;j nghijg; bghUl;fis ,uz;L vjphpfSk; nrh;e;J vLj;Jf; bfhLj;jjhf kfrhpy; Fwpg;gpl;L Twg;gltpy;iy vd;why; rhpay;y/ ,uz;L vjphpfSk; nrh;e;J nghijg; bghUl;fis vLj;Jf; bfhLj;jhh;fs; vd;W m/rh/M/14 jdp mwpf;ifapy; Fwpg;gpl;L Twtpy;iy//////@

46. In this context, it is appropriate to consider the statements of the accused under Section 67 of the NDPS Act. As already decided in the earlier paragraphs of this judgment, the statements of the accused under Section 67 NDPS Act, which are in Exs.P-11 and P-32, are admissible in evidence. In Ex.P-11, A.1 stated as follows:

@////////gpwF ryPk; bfhLj;j nghijg; bghUSld; ehDk; ez;gh; My;gh;l;Lk; 19/02/2002 md;W b$a;g{h; vf;!;gpu!; K:ykhf 21/02/2002 md;W brd;id brd;l;uy; uapy; epiyaj;jpw;F te;J tpl;nlhk;/ mt;thW te;J ,w’;fpa nghJ jh’;fs; v’;fis gpoj;J tpl;Oh;fs;/ mg;go gpoj;J eh’;fs; bfhz;L te;j igfis nrhjid bra;jnghJ v’;fsplk; ,Ue;J ifg;gw;wpa bcwuhapd; vd;w nghijg; bghUspd; mst[ 2/588 fpnyh vil MFk;///////@

In Ex.P-32, A.2 stated as follows:

“….During first week of this month Muzam told me about his visit to Jaipur on business matter and asked me to accompany him. As he offered me all my expenses I also consented to accompany him. Accordingly for me and Muzam tickets to Jaipur in 3rd AC was purchased under waiting list for 15th February 2002. We both boarded the train Jaipur Express and managed, obtained the confirmed birth and we reached Jaipur on 17th February 2002 at 6.00 a.m. We got accommodation at Rupen Hotel near Railway Station in my name Raj & Muzam on Room No.is 13 and after sometime Muzam left me there and went to Ajmeer taking his travelling bag to bring Narcotic drug from Ajmeer and returned back to Jaipur on 18th. When he came to room he brought a new bag black blue coloured which contained the Narcotic drugs in the false bottom. He asked me to keep all my belongings in that bag. On 19th we both left Jaipur in Jaipur Express under AC Reservation 3rd AC in our name that is Raj & Muzam. Our ticket no. was 22712384. Later we managed to get 2nd AC on payment of Rs.1672 for excess fare vide Receipt No.0930066 dated 18/2. When the train came to Chennai Central Railway Station in Platform No.4 and when we both came out of the train compartment (2nd A.C) your officers stopped us enquired us about any possession of Narcotic drugs, Muzam my friend admitted his possession in the new blue black coloured travelling bags false bottom of 2.588 Kgs. of Heroin which was seized under a mahazar in the presence of 2 independent witnesses. The new blue black coloured travelling bag in which the Narcotic drug was seized was carried in my possession with my belongings. At Jaipur while Muzam returning from Ajmeer brought a new bag I got my own doubt and I did not ask him anything. At the time of officer’s enquiry and seizure of Narcotic drugs I came to know about the doubt which arised me at Jaipur when he brought the new bag from Ajmeer. ….”/

47. The averments in the statements given by the accused under Section 67 of the NDPS Act, show that in the new blue-black colour travelling bag, the narcotic drug was carried and it was in A.2’s possession with his belongings. So, the evidence has proved that the bag was with A.2 and it contained the narcotic drug Heroin weighing 2.588 Kgs. So, the possession was proved by the prosecution.

48. In this regard, learned counsel for A.2 would contend that it is true that the bag which was owned by A.2 contained narcotic drug, concealed in the false bottom of the bag, but he is not having any legal or conscious possession.

49. In this connection, learned Spl.P.P. would rely upon the following decisions:

(a) AIR 2009 SC 3036: Balbir Kaur Vs. State of Punjab:

“9. In Madan Lal v. State of H.P. (2003) 7 SCC 465 = 2003 AIR SCW 3969, it was held by this Court that the issue with regard to conscious possession is to be determined on the fact situation of each case. The Court observed as follows in relevant paras:

“19. Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record are that all the accused persons were travelling in a vehicle and as noted by the trial court they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle.

20. Section 20(b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act which relates to offenes for possession of such articles. It is submitted that in order to make the possession illicit, there must be a conscious possession.

21. It is highlighted that unless the possession was coupled with the requisite mental element i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted.

22. The expression “possession” is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja (AIR 1980 SC 52) to work out a completely logical and precise definition of “possession” uniformally applicable to all situations in the context of all statutes.

23. The word “conscious” means awareness about a particular fact. It is a state of mind which is deliberate or intended.

24. As noted in Gunwantlal vs. State of M.P. (AIR 1972 SC 1756) possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control.

25. The word “possession” means the legal right to possession (See Heath v. Drown). In an interesting case it was observed that where a person keeps his firearm in his mother’s flat which is safer than his own home, he must be considered to be in possession of them. (See Sullivan v. Earl of Caithness).

26. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.”

(b) 2009 (5) SCC 565 (State of Punjab Vs. Ram Pal):

“4.

“22. The expression ‘possession’ is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supdt. & Remembrancer of Legal Affairs v. Anil Kumar Bhunja (1979 (4) SCC 274 : 1979 SCC (Cri) 1038) to work out a completely logical and precise definition of ‘possession’ uniformally (sic uniformly) applicable to all situations in the context of all statutes.

23. The word ‘conscious’ means awareness about a particular fact. It is a state of mind which is deliberate or intended.

24. As noted in Gunwantlal v. State of M.P. (1972 (2) SCC 194 : 1972 SCC (Cri) 678) possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to the power or control.

25. The word ‘possession’ means the legal right to possession (see Heath v. Drowr (1973 AC 498 : 1972 (2) WLR 1306 : 1972 (2) ALL E.R. 561 (HL). In an interesting case it was observed that where a person keeps his firearm in his mother’s flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness (1976 QB 966 : 1976 (2) WLR 361 : 1976 (1) ALL E.R. 844 (DC)).

(Ed. As observed in Madan Lal Vs. State of H.P. (2003) 7 SCC 465 : p.472, paras 22-26).”

5. Normally we would have decided the matter taking note of what is stated in Madan Lal v. State of H.P. (2003 (7) SCC 465 : 2003 SCC (Cri) 1664). But the respondent is not represented and, therefore, we deem it proper to set aside the impugned judgment and remit the matter to the High Court (sic for determination) afresh in the light of what is stated by this Court in Madan Lal case [Madan Lal v. State of H.P. (2003 (7) SCC 465 : 2003 SCC (Cri) 1664) ]. The present judgment will cover the case of accused Ram Pal only.”

50. As per the said decision of the Supreme Court reported in AIR 2009 SC 3036 (cited supra), when once possession is proved, the burden is upon the accused to prove that he is not having any conscious or legal possession. When once the possession is established, a person who claims that he was not in a conscious possession, has to establish it, because, how he came to be in possession is within his special knowledge.

51. At this juncture, it is appropriate to consider the confession statement of A.2 under Section 67 of the NDPS Act in Ex.P-32. In his statement under Section 67 of the NDPS Act in Ex.P-32, A-2 stated as follows:

“…We got accommodation at Rupen Hotel near Railway Station in my name Raj & Muzam on Room No. is 13 and after sometime Muzam left me there and went to Ajmeer taking his travelling bag to bring Narcotic drug from Ajmeer and returned back to Jaipur on 18th…. ….. At Jaipur while Muzam returning from Ajmeer brought a new bag I got my own doubt and I did not ask him anything. At the time of officer’s enquiry and seizure of Narcotic drugs I came to know about the doubt which arised me at Jaipur when he brought the new bag from Ajmeer…. …. ”

A.2 has further stated in his statement under Section 67 of the NDPS Act in Ex.P-32 that, ” …. Though I know that my friend Muzam is in the trade of drug dealing I just accompanied him to Jaipur as a tourist and sight seeing purpose at his cost. I know that dealing or trading or possession or transporting Narcotic drugs is offence and punishable under NDPS Act. I have just accompanied Muzam to Jaipur and back as a tourist which helped him Muzam to possess and transport by way of concealment of the drug heroin to Chennai. …. I have abetted to commit this offence in order to help Muzam my friend and to see Jaipur as a tourist at the cost of my friend Muzam. I assure I will be more careful in future…” So, these averments of A.2 in Ex.P-32, clearly proved that he had a knowledge about the blue-black travelling bag, where his belongings were kept, and the contraband with polythene packets, was concealed in the false bottom of the blue-black travelling bag. In his statement under Section 67 of the NDPS Act, A.2 himself has stated that he abetted his friend A.1 for possessing and transporting the heroin. So, the argument advanced by learned counsel for A.2 that A.2 has no legal and conscious possession, does not merit acceptance.

52. It is worthwhile to notice the decision of the Supreme Court reported in CDJ 2009 SC 1404 (State of Punjab Vs. Ram Pal), wherein the Supreme Court held that when once possession is established, the person who claims that it was not conscious possession, has to establish it, because how he came to be in possession is within his special knowledge.

53. In the case on hand, A.2 himself admitted that as soon as A.1 returned from Ajmeer, he handed over the blue-black travelling bag to A.2 and directed him to use the said bag as his bag. Even at the time when P.Ws.1,2,4,5 and 7 surrounded and searched in the Central Railway Station, Chennai, on 21.2.2002, A.2 was in possession of the bag. When P.W.1 made a question, then only A.1 and A.2 admitted that they are having contraband and after then, search was made in accordance with law. Furthermore, from the statement of A.2 made under Section 67 of the NDPS Act, in Ex.P-32, as already discussed above, it is clearly proved that A.2 had the knowledge that A.1 possessed and transported the contraband and that A.2 was assisting and abetting in the transport of the contraband. At the time of seizure, A.2 was in possession. In this regard, it was the duty of the A.2 to prove that he was not in conscious and legal possession.

54. The conscious possession is to be determined with reference to the factual backdrop and the facts of the case, which can be culled out from the evidence on record from Ex.P-32, which is the statement made by A.2 under Section 67 of the NDPS Act and also from the evidence of P.Ws.1,2,4, and 7, which clearly proved that A.2 was having conscious possession of the contraband.

55. As per Section 8(c) of the NDPS Act, the possession of the contraband is an offence and in order to make the possession illicit, there must be conscious possession. Unless the possession was coupled with the requisite mental element, i.e. the conscious possession and not mere custody without awareness of the nature of such possession, Section 20 of the NDPS Act, is not attracted. The expression “possession” is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextual different background. It is impossible, as was observed in Supdt. & Remembrancer of Legal Affairs, W.B. Vs. Anil Kumar Bhunja (AIR 1980 SC 52) to work out a completely logical and precise definition of “possession” uniformly applicable to all situations in the context of all statutes. The word “conscious” means awareness about a particular fact. It is a state of mind which is deliberate or intended. As observed by the Supreme Court in the case of Gunwantlal Vs. State of M.P. (AIR 1972 SC 1756), the possession in a given case, need not be physical possession, but it can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given, holds it, subject to that power of control.

56. In the case on hand, as already discussed, A.2 has knowledge about the possession of the contraband. So, the prosecution has proved that A.1 and A.2 are in possession of the contraband. Hence, the argument advanced by learned counsel for A.2 that A.2 is not in conscious and legal possession, does not merit acceptance, since he was having knowledge about the possession of the contraband and he has fairly conceded that he abetted for possession and transport of the contraband from Jaipur to Chennai. Hence, the trial Court found them guilty of the offence under Section 8(c) read with Section 21(c) of the NDPS Act and accordingly, they were convicted and sentenced for the same.

57. Learned counsel for the appellants/A.1 and A.2 would lastly argue that the prosecution has to prove the case beyond reasonable doubt, but not in the case of the accused, who can discharge their burden by preponderance of probabilities.

58. There is no quarrel over the said proposition, as argued by learned counsel for the appellants/A.1 and A.2. As already discussed above in various points, the prosecution has proved that A.1 and A.2 were in possession of the contraband at the time of seizure and also by way of examining the evidence of P.Ws.1 to 7, and marking of exhibits/material objects and hence, the prosecution has discharged its burden and proved that A.1 and A.2 are guilty of the offence, beyond reasonable doubt.

59. The trial Court has considered all the aspects in proper perspective and came to the correct conclusion. The conviction and sentence imposed on the appellants/A.1 and A.2 by the trial Court, for the offence under Section 8(c) read with Section 21(c) of the NDPS Act, do not warrant any interference. Hence, they are liable to be confirmed.

60. In the result:

(a) The Criminal Appeals are dismissed.

(b) The conviction and sentence imposed on the appellants/A.1 and A.2, by the trial Court, are confirmed.

19.03.2010
Index: Yes
Internet: Yes
cs

1. The the Principal Special Court
under E.C. and N.D.P.S. Acts, Chennai-104.

2. State: by Intelligence Officer,
Narcotics Control Bureau,
South Zonal Unit, Chennai-600 090.

3. The Special Public Prosecutor (NCB Cases),
High Court, Madras.

4. The Public Prosecutor, High Court, Madras.

R.MALA,J

Judgment in
Crl.A.Nos.1368 of 2004 &
238 of 2007

19.03.2010

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Mohammed Muzam @ Thambi vs State: By Intelligence Officer on 19 March, 2010

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