IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04/08/2003 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM C.A.No.392 of 1999 and C.A.No. 802 of 1999 C.A.No.392 of 1999: Shanmugam .. Appellant -Vs- State by Intelligence Officer Narcotic Control Bureau South Zone Chennai .. Respondent
C.A.No.802 of 1999:
Intelligence Officer Narcotic Control Bureau South Zone Chennai .. Appellant vs 1. P.Raja Singh 2. B.K.Asokan 3. K.Anand .. Respondents
Both the criminal appeals are preferred under Sec.374(2) of The Code
of Criminal Procedure against the judgment of the Special Judge ( NDPS Act),
Chennai made in C.C.No.111 of 1994 and dated 30.3.1999.
!For Appellant in
CA 392/99 and
Respondents in
CA 802/99 : Mr.S.Hameed Ismail
^For Respondent in
CA 392/99 and
Appellant in
CA 802/99 : Mr.P.N.Prakash
Special Public Prosecutor
(NDPS)
:COMMON JUDGMENT
This judgment shall govern both these appeals.
2. The first appeal is brought forth by A-3 who was found guilty
under Sec.8 read with 17 of the N.D.P.S. Act and sentenced to undergo R.I.
for 10 years and to pay a fine of Rs.1,00,000/- in default to undergo 2 years
R.I., while the later appeal is brought forth by the State aggrieved over the
judgment of acquittal made by the trial Court in respect of A-1, A-2 and A-4.
3. The short facts necessary for the disposal of both these appeals
can be stated as follows:
(a) The accused 1 to 4 as a gang was operating between India and Sri
Lanka across the straits. Pursuant to the intelligence gathered, A-3 was
intercepted by P.W.1 Tmt.R.Vijayalakshmi, an Intelligence Officer and P.W.12
Chandrasekaran, Superintendent on 16.10.1993 at 11.00 P.M. in Kolathur,
Chennai. A-3 was travelling in an auto rickshaw bearing Registration No,.TSH
1168 driven by P.W.5 Shenbagasekaran. P. Ws.1 and 12 seized 970 grams of
heroin in the presence of P.W.5 and one Nawab John. Two samples under M.Os.2
and 3 were drawn from the seized heroin, and the entire seizure has been
recorded in Ex.P1 mahazar. The rest of the contraband is marked as M.O.1.
The said P.W.12 is an Officer of gazetted rank, and thus, he was empowered
under Sec.41(2) of NDPS Act to conduct the search and th e seizure or
authorise the subordinates to do the same. After seizure of the heroin from
A-3, his statement under Sec.67 of the NDPS Act was recorded by P.W.1, and the
same is marked as Ex.P2. A-4 was intercepted on 17.10.93 near Central Railway
Station at 8.45 A.M. by P.W.6 Gopalan, when he just arrived from Delhi by
G.T. Express. The belongings of A-4 was searched in the presence of P.W.8
Sathya, and incriminating documents like air tickets, train ticket, telephone
numbers, visiting cards and cash of Rs.29,000/- were seized under Ex.P41
mahazar. After the search and the seizure, the statement of A-4 under Sec.67
of the Act was recorded in the presence of P.W.6 at the NCB Office and marked
as Ex.P42.
(b) On 17.10.93 at 11.30 A.M., Room No.206, Visweshwara Bhavan at
Millers Road, Madras 10, which was in the occupation of A-2 Asokan was
searched by P.W.4 Ashokraj in the presence of P.W.9 Gopal and one Saravanan.
The incriminating documents like spiral note book containing certain details,
a letter head of Oxford Furniture, etc., were recovered in the room. After
the search and seizure, the statement of A-2 was recorded by P.W.4 under
Ex.P38. On 17.10.1993, the residence of A-1 Rajasingh at Aziz Nagar,
Kodambakkam, Madras 24 was searched at 1.15 P.M. by P.W.2 and P.W.12 in the
presence of the independent witnesses P.W.3 Muthu and one Mohan. During the
search, incriminating documents under Exs.P26 to P31 were recovered under
Ex.P21 mahazar. Thereafter, A-1’s statement under Sec.67 of the NDPS Act was
recorded by P.W.2, and the same is marked as Ex.P22. In the course of the
enquiry under Sec.67 of the Act, A-3 revealed that he has kept 25 kilos of
opium concealed at a place in Mariyur, Ramnad District, and that he would show
the place where he had kept the contraband hidden if he is taken to that
place. After recording the said statement, A-1 was arrested by P.W.2 by
serving the arrest memo marked as Ex.P23. A-2 was arrested by P.W.4 vide
arrest memo under Ex.P39. A-3 was arrested by P.W.1 vide arrest memo under
Ex.P3, and A-4 was arrested by P.W.6 under Ex.P43 arrest memo. After their
arrest, all the accused were produced before the Chief Judicial Magistrate,
Egmore, Madras vide Ex.P6 remand application. The seized heroin under M.O.1
with the two samples under M.Os.2 and 3, cash of Rs.29,000/- and all other
documents that were seized from various places as stated above were submitted
to the remanding Magistrate along with remand application under Ex.P6 .
(c) Since A-3 disclosed that he had concealed 25 kilos of opium at a
place in Mariyur, P.W.1 requested the remanding Magistrate to give A-3 in her
custody. Accordingly departmental custody of A-3 was given on 18.10.93,
pursuant to which P.Ws.1 and 12 took A-3 to his native place at Mariyur in
Ramnad District. They reached Mariyur and very near his hut 25 kilos of opium
concealed by him was recovered by P.Ws.1 and 12 under Ex.P5 mahazar. After
seizing the contraband, A-3 was returned to judicial custody and was produced
before the remanding Magistrate along with 25 kilos of seized contraband of
opium on 21.10.9 3 for further judicial custody. The samples drawn from the
said heroin as well as from the opium were sent for chemical analysis. P.W.10
Ameerrasakkhan, the Chemical Examiner by his report under Ex.P56 confirmed the
presence of Di-acetyl Morphine in M.O.2. Further P.W.10 in his report under
Ex.P57 has confirmed that the 25 samples were opium. As a measure of further
investigation, a sum of Rs.40,000/- was taken possession from one Dhanraj, a
relative of A-1 by P.Ws.1 and 12 under Ex.P18 on 22.10.93. The said sum of
Rs.40,000/- is marked as M.O.87. Following the same, the Manager of the STD
Booth from where A-1, A-2 and A-3 used to make telephone calls to Delhi and
Sri Lanka was examined under Sec.67 of the Act. He was examined in Court as
P. W.14 Srinivasan. P.W.14 identified A-1 to A-3 as persons who used his STD
Booth to make national and overseas calls. The telephone calls made from the
STD Booth telephone No.4833961 between 1.8.93 and 15.8.93 to certain specified
numbers in Madhya Pradesh, Delhi and Sri Lanka were obtained from the
Telephone Department vide Ex.P61. Based on the materials collected, a
complaint under Sec.36(a)(i)(d) of the N. D.P.S. Act was filed against A-1
to A-4.
4. The trial Court framed the necessary charges of conspiracy against
A-1 to A-4 for trafficking in 970 grams of heroin and 25 kilos of opium and
also individual charge of possession of heroin and possession of opium against
A-3 alone.
5. In order to prove its case, the prosecution has examined 15
witnesses and marked 63 exhibits and 87 material objects. After completion of
the evidence of the prosecution, the accused were questioned under Sec.313 of
Cr.P.C. as to the incriminating circumstances found in the evidence of the
prosecution witnesses, which they flatly denied as false. The defence has
examined 2 witnesses and marked 11 documents. Ex.C1 was also marked. On
consideration of the rival submissions and scrutiny of the materials, the
trial Court found A-1 guilty under Sec.8 read with 17 of the N.D.P.S. Act and
sentenced him to undergo the imprisonment as referred to above. The trial
Court has found A-1, A-2 and A-4 not guilty of the charges against them.
Aggrieved over the conviction and sentence imposed on A-3, the first appeal is
brought forth by him, while aggrieved over the acquittal of A-1, A-2 and A-4,
the State has brought forth the next appeal.
6. Arguing for the appellant/A-3, the learned Counsel Mr.S.Hameed
Ismail interalia raised the following submissions for consideration by this
Court:
The trial Court has acquitted A-1, A-2 and A-4 of all the charges
levelled against them, since the evidence was not only lacking but
unbelievable. It is pertinent to point out that the trial Court has also
acquitted the appellant/A-3 in respect of the accusation that he was in
illegal possession of 970 grams of heroin, but has found him guilty in respect
of his illegal possession of 25 kilos of opium at Mariyur. The prosecution
has not chosen to examine the mahazar witnesses as found under Ex.P5. The
prosecution has not tendered any explanation also in that regard, and hence,
the evidence that was available in the hands of the prosecution was P.Ws.1 and
12 only. Under such circumstances, the evidence of D.W.2 was more credible
and trustworthy. In respect of the so-called seizure of opium, the lower
Court has failed to give proper appreciation of the evidence of D.W.2. The
lower Court has agreed that the defence case that there was gross
noncompliance and violation of the mandatory provisions under Sec.41(1) & (2 )
and Ss 50 and 57 of the N.D.P.S. Act. In view of the same, the lower Court
has acquitted the appellant/A-3 in respect of the possession of 970 grams of
heroin. There are lot of major contradictions present in the evidence of
P.Ws.1 and 12. In view of those contradictions, their testimonies should have
been rejected by the lower Court. The prosecution has filed a memo that the
mahazar witnesses in connection to the seizure of 25 kilos of opium were not
at all traceable, and the same should have been rejected by the lower Court as
a false statement of fact. Since the provisions of the NDPS Act are stringent
and the punishment is so graver, the prosecution is expected to exercise care
and prove its case beyond reasonable doubt. But, in the instant case, when
the prosecution has come forward to state that he was in illegal possession of
25 kilos of opium, it has not taken care to examine the mahazar witnesses, but
relied on the evidence of its own officials. Under such circumstances, the a
ppellant/A-3 should be acquitted of the charges levelled against him.
7. In answer to the above, the learned Special Public Prosecutor
Mr.P.N.Prakash would submit that the appellant/ A-3 was taken to custody by
the officials, after he was produced before the concerned Court, and as per
the information given him, which was recorded earlier and filed before the
Court, A-3 took the officials namely P.Ws.1 and 12 to Mariyur in Ramnad
District, and nearby his house, he unearthed 25 kilos of opium and the same
was recovered under Ex.P5 mahazar in the presence of two independent
witnesses; that the prosecution despite hectic attempt could not trace those
witnesses, and hence, they could not be examined; that a memo was filed before
the lower Court, which was accepted by the trial Court; that P.Ws.1 and 12
have given cogent evidence in that regard; that the property was also produced
immediately after the seizure was made; that under such circumstances, the
lower Court was perfectly correct in relying on the evidence and finding the
appellant/A-3 guilty, and hence, the judgment of the lower Court in respect of
A-3 has got to be sustained.
8. Assailing the judgment of acquittal by the lower Court, the
learned Special Public Prosecutor for the State in C.A.No.802/99 raised the
following submissions for consideration by this Court:
The trial Court has acquitted A-1, A-2 and A-4 stating that the
prosecution has failed to adduce satisfactory evidence regarding conspiracy.
It was because of the non-appreciation of the evidence adduced by the
prosecution in that regard. The statement of A-3 was recorded under Sec.67 of
the NDPS Act at the earliest, wherein he has referred to A-1, A-2 and A-4, and
pursuant to the same, the prosecution documents namely Exs.P25 to P31 from
A-1, Exs.P33 to P37 from A-2 and Exs.P45 to P49 from A-4 were seized. They
would clearly speak about the association of the accused with each other and
would clearly establish the conspiracy in which each and every accused had a
role to play. The recovery of those documents effected from A-1, A-2 and A-4
would clearly corroborate the statement of A-3. In a case of conspiracy, what
is expected in law is not a corroboration of each and every material
particular, but a general corroboration would be suffice. The lower Court has
failed to note that there was no satisfactory explanation for retraction. If
the statements are voluntary and retracted subsequently, it would indicate the
after thought, and those voluntary statements could be relied. From the
evidence available, it was very clear that all the accused 1 to 4 have
involved in clandestine activities, and hence, there cannot be any distinct
and direct evidence. The conspiracy aspect of the case was necessarily an
inferential fact fromm the proved facts and circumstances. The lower Court
has taken a wrong view that every link in the conspiracy was to be proved.
The lower Court has taken into consideration the evidence of P.W.9, a hostile
witness and hence should have rejected the interested evidence of D.W.1 as
regards A-1. Before coming to the conclusion on the question of conspiracy,
the lower Court has not assessed the evidence in its totality. The reasons
adduced for acquitting A-1, A-2 and A-4 on the charge of conspiracy are
unsound and unsustainable. Hence, the judgment of acquittal of the trial
Court has got to be set aside, and the respondents/A-1, A-2 and A-4 should be
found guilty of the charge of conspiracy under Sec.29 of the NDPS Act.
9. Strongly opposing all the above contentions of the State, the
learned Counsel for the respondents/A-1, A-2 and A-4 would submit that there
was no evidence on the side of the prosecution as to the conspiracy; that no
circumstance was also brought forth that A-1, A-2 and A-4 have conspired along
with A-3; that the lower Court on discussion of the evidence in extenso has
come to the correct conclusion that the charge of conspiracy was not at all
proved by the prosecution, and thus, the appeal by the State has no merits,
and it has got to be dismissed.
10. This Court paid its full attention on the submissions made by the
learned Counsel for the accused and the learned Special Public Prosecutor for
the State. But, the Court is unable to notice any merit in either of these
appeals.
11. The gist of the prosecution case as could be seen above against
the appellant/A-3 was that he was intercepted on 16.10.1993 by P.W.1 an
Intelligence Officer and P.W.12 Superintendent, both attached to the N.C.B.,
when he was travelling in an auto driven by P.W.5; that after following the
procedural formalities 970 grams of heroin was recovered from him in the
presence of P.W.5 and another witness, not examined; that samples were taken;
that his statement under Sec.67 of the NDPS Act was recorded; that a case was
registered; that he was taken to the concerned Court along with the material
objects; that they were all produced before the Court, and A-3 was remanded to
judicial custody. Insofar as the seizure of 970 grams of heroin, the samples
were put to chemical analysis, and they found to contain a narcotic substance
heroin. The Court below believed the evidence adduced by the prosecution that
there was a seizure of 970 grams of heroin, as put forth by the prosecution.
But, the trial Court found that the mandatory provisions under Ss 42 and 50
have not been complied with strictly, and hence, that would be fatal to the
prosecution case, and rejected that part of the prosecution case. It is
pertinent to point out that that part of the judgment of the Court below has
not been appealed against. But, the prosecution came forward with a further
case against the appellant/A-3 that after he was remanded to judicial custody,
an application was filed before the concerned Court seeking his custody; and
that custody was given; that while he was in the custody of the Department,
pursuant to his information given in the statement recorded under Sec.67 of
the NDPS Act, he took the officials P.Ws.1 and 12 to Mariyur in Ramnad
District and nearby his house, he unearthed 25 kilograms of opium, and the
same was seized under Ex.P5 mahazar in the presence of two independent
witnesses, and the same was produced before the concerned Court. Now, the
lower Court has appraised the evidence adduced by the prosecution and has
found him guilty and rightly too.
12. It is true that both the mahazar witnesses have not been
examined. A memo was filed by the prosecution before the trial Court stating
that the witnesses could not traced, and hence, they could not be produced
before the trial Court to be examined. But, it remains to be stated that the
evidence of P.W.1, who effected the seizure, has been fully corroborated by
the evidence of P.W.12. A seizure memo has also been prepared, a copy of
which has also been served on A-3 and has also been filed before the Court.
One other circumstance present in the prosecution case is the nature of
confession so made by A-3 at the time of the original statement recorded by
the officials under Sec.67 of the Act even before he was produced before the
concerned Court, and only thereafter, a requisition was made before the
concerned Court for the custody of A-3, pursuant to which he has taken the
officials to his native place and produced 25 kilograms of opium, and the same
has been seized following the procedural formalities. This fact of seizure,
pursuant to the statement given by him, which was also produced before the
concerned Court at the earliest and the recovery of the same as a consequence
thereon along with the evidence adduced through P.Ws.1 and 12 would clearly
indicate that it was in his illegal possession. It is pertinent to note that
a rebuttable presumption was available to him, but, he has failed to do the
same. Hence, it is a case, where the lower Court was perfectly correct in
recording a finding that the appellant/A-3 was in illegal possession of 25
kilograms of opium and that he was guilty for the same. The Court is unable
to notice any infirmity or illegality on the procedures followed by the
officials or rebuttable evidence to hold that A-3 had not the culpable mental
state. Therefore, there is nothing to interfere in the conviction of the
appellant/A-3 by the trial Court.
13. So far as the appeal by the State is concerned, the specific case
of the State was that A-3 was found in illegal possession of 970 grams of
heroin, and he has given a statement recorded under Sec.67 of the NDPS Act,
wherein he has referred to the other accused namely A-1 , A-2 and A-4,
pursuant to which A-4 who came from Delhi by G.T. Express was intercepted on
17.10.1993 and all the incriminating documents were recovered from him, and a
statement was recorded under Sec.67 of the Act by P.W.6 and marked as Ex.P42;
that likewise on 17.10.93, Room No.206 Visweshwara Bhavan at Millers Road,
Madras which was in the occupation of A-2, was searched by P.W.4 in the
presence of the witnesses, and incriminating documents like spiral note book
containing certain details, a letter head of Oxford Furniture, etc., were
recovered; that after the search and seizure, a statement of A-2 was recorded
under Sec.67 of the Act by P.W.4 and marked as Ex.P38; that on the same day,
the residence of A-1, according to the prosecution the prime accused, at Aziz
Nagar, Kodambakkam, Madras was searched by P.W.2 and P.W.12 in the presence of
the witnesses, and incriminating documents namely Exs.P26 to Ex.P31 were
recovered under Ex.P21 mahazar, and thereafter, a statement was recorded from
A-1. What was contended by the prosecution before the Court below and equally
here also is that in the statement made by A-3, recorded under Sec.67 of the
NDPS Act, he referred to all the three accused namely A-1, A-2 and A-4, and at
the time of search number of documents were recovered from them, which would
clearly establish the association of the accused with each other, and they
would establish the conspiracy; and that they had a role to play in the crime
in question namely the trafficking in 970 grams of heroin, what was originally
in the possession of A-3, and further in order to prove the same, the Manager
of the telephone booth has been examined as P.W.14, who clearly identified
A-1, A-2 and A-3 and has also deposed that they used to book STD calls to
different places including Delhi and Sri Lanka during the relevant period
namely 1.8.1993 to 15.8.1993, and apart from that, certain documents were
recovered from A-4, wherein a letter head of Oxford Furniture of Delhi was
found, which would clearly speak to the fact of conspiracy, and hence, not all
the particulars have got to be proved, but a corroboration in general would be
suffice, and the same has been done in the case on hand. The Court is unable
to notice any evidence to connect A-1, A-2 and A-4 to the crime of conspiracy
in question. It is not in dispute that no contraband was recovered from any
one of these three accused namely A-1, A-2 and A-4. They were also not found
in the company of A-3. What was available for the prosecution was the
statement recorded from A-3. As rightly pointed out by the learned Special
Public Prosecutor, there has been reference to A-1, A-2 and A-4. But, the
Court is of the considered view that the same would not be suffice to prove
the theory of conspiracy. The prosecution has relied on Exs.P25 to P31 seized
from A-1, Exs.P33 to P37 from A-2 and Exs.P45 to 49 from A-4. Through these
documents, the manner the association of A-1, A-2 and A-4 along with A-3 or
A-1, A-2 and A-4 inter-se is not shown by the prosecution in any way. In no
one of these documents, the name of A-3 or anything to connect that 970 grams
of heroin, could be found. It is pertinent to point out that the officials
have categorically deposed before the trial Court that even after the seizure
of those documents, they did not make any further investigation in respect of
the details found in those documents. This would clearly indicate that they
have thoroughly failed to investigate the same. But, they came out with the
case of conspiracy relying on those documents surprisingly. On mere seizure
of those documents from A-1, A-2 and A-4 without any corroborative piece of
evidence and in the absence of anything to connect those documents with the
crime in question, at no stretch of imagination, the Court can hold that the
conspiracy theory put forth by the prosecution was proved. Hence, the lower
Court was perfectly correct in holding that the case of the prosecution that
A-1, A-2 and A-4 hatched up a conspiracy to commit the offence was not proved
in any way. In that regard, the Court has to necessarily affirm the judgment
of the Court below.
14. In the light of the above reasons, the Court is unable to notice
any illegality or infirmity either in the conviction of A-3 or in the
acquittal of A-1, A-2 and A-4 made by the lower Court. Coming to the question
of sentence, the lower Court has sentenced the appellant/A-3 to undergo 10
years R.I. and to pay a fine of Rs.1,00,000/- in default to undergo 2 years
R.I. under Sec.8 read with 17 of the NDPS Act. In view of the facts and
circumstances of the case, the Court is of the view that while affirming the
sentence of imprisonment and fine, the default sentence of 2 years R.I. has
got to be reduced to 6 months R.I., and the interest of justice would also
require the same.
15. In the result, the default sentence of 2 years R.I. imposed by
the lower Court on the appellant/A-3 is modified, and the appellant/A-3 shall
undergo 6 months R.I. in the event of default of payment of fine amount
awarded by the lower Court. In other respects, the judgment of the lower
Court is confirmed. With the above modification, both the criminal appeals
are dismissed.
Index: Yes
Internet: Yes
To:
1) The Special Judge – NDPS Act, Chennai.
2) The Principal Judge, Chennai.
3) The Superintendent, Central Prison, Vellore.
4) The Special Public Prosecutor-NDPS, Chennai.
5) The D.I.G. of Police, Chennai 4.
6) The Intelligence Officer, Narcotic Control Bureau,
South Zone, Chennai.
nsv/