BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 14/10/2009
CORAM
THE HONOURABLE MR.JUSTICE C.T.SELVAM
Crl.A.(MD)No.116 of 2006
V.Vettichelvan .. Appellant/
Accused
Vs
Central rep. by
the Senior Intelligence Officer,
Directorate of Revenue Intelligence,
17, Reynolds Road,
Cantonment,
Tiruchy - 620 001.
(F.No.VIII/48/2/2004-DRI/TRY) .. Respondent/
Complainant
Prayer
Criminal appeal is filed under Section 374 of Cr.P.C., against the
judgment dated 05.01.2006 passed in C.C.No.334 of 2004 by the learned Additional
Sessions Judge cum Special Judge for EC and NDPS Act Cases, Pudukottai.
!For appellant ... Mr.W.Peter Ramesh Kumar
^For respondent ... Mr.Arul Vadivel @ Sekar
Special Public Prosecutor
* * * * *
:JUDGMENT
This appeal arises against the Judgment in C.C.No.334 of 2004 passed on
05.01.2006 by the learned Additional Sessions Judge cum Special Judge for EC and
NDPS Act Cases, Pudukottai. The learned Additional Sessions Judge cum Special
Judge for EC and NDPS Act Cases, Pudukottai was pleased to convict the sole
accused for offence under Section 8(c) r/w. 21(c) of the N.D.P.S. Act.
2. The case of the prosecution is as follows:
The accused, who was intercepted while driving in blue colour Toyota
Qualis Car bearing Registration No.TN-10-B-3747 at the Trichy-Pudukkottai
highway and close to the Airport, at about 02.45 p.m. on 31.01.2004 was found to
be in possession of 11.364 Kgs. of heroin and accordingly was charged for
offence under Section 8(c) r/w. 21(c) of the N.D.P.S. Act. The prosecution
examinated 6 witnesses, marked 28 exhibits and 20 material objects.
3. P.W.1, Karunakaran, who was the Central Revenue Intelligence Officer,
Trichy received a secret message on 31.01.2004 at 09.00 am that a Srilankan
would be carrying about 10 Kgs. of heroin in a blue colour Qualis car bearing
Registration No.TN-10-B-3747 in a clandestine manner and that he was likely to
be on the Trichy-Pudukkottai Road between 2.00 to 4.00 p.m. He prepared a
report Ex.P1 and forwarded the same to his superior officer P.W.6, Earnest Ravi.
The report of the secret information received by him is Ex.P1. P.W.6 received
and signed the same. The higher officials in Chennai were informed, who came
over to Trichy by flight. Then around 01.30 p.m., P.W.1, P.W.6, Senior Revenue
Intelligence Officials and the Trichy Customs officials appeared at the
Pudukkottai-Trichy road and all gathered at about 01.45 p.m. They informed
P.W.2, Suresh and one Chandrasekaran, M.C. of who they were and why they were
present and asked them to be witnesses for the same. Such persons agreed. By
about 02.45 p.m., the blue colour Toyoto Qualis Car bearing Registration No.TN-
10-B-3747 came on the scene and the accused were driving the same. When asked
to stop, the accused stopped the vehicle.
4. On questioning, he has informed that his name was Vettiselvan and he
was travelling from Chennai to Pudukottai. When he was asked about possession of
Narcotic substances, he accepted and from the rear of the car took and handed
over 9 packets of heroin. The accused was informed of the need to examine him
and of his right to be examined in the presence of P.W.2, C.Suresh and one
Chandrasekaran by PW-1 and PW-6. The accused informed that he could be examined
by such persons themselves and gave a written note to that effect, marked as
Ex.P.2. Ex.P.2 was signed by the independent witnesses, P.W.1 and also the
accused. The packets were opened. They contained a brown powder. Samples from
each packet was tested. The contraband goods and the vehicle were seized by
P.W.1.
5. The Mahazar, Ex.P.3 prepared at 04.00 p.m. was signed by the accused,
the witnesses and P.W.1. The accused and the seized articles were brought to the
office of the Director of Intelligence at about 04.30 pm. The seized packets
were marked as P.1 to P.9 and 2 samples of 5 gms. each, were taken from each of
the packets in polythene covers marked as P1S1 to P9S1, P1S2 to P9S2. The
materials used by the accused for packing contraband goods were placed in a
separate cover bearing Sl.No.P.10. The seal of P.W.6 was affixed on the sample
packets that were taken as also the cloth paper cover. The same were also signed
by the accused and the independent witnesses.
6. After this, Mahazar Ex.P.4 recording the details of the materials
seized were prepared at about 6.30 p.m. The sample packets P1S2 to P9S2 are the
M.Os.1 to 9. P1S1 to P9S1 are the packets of samples which were sent for
chemical examination and marked as M.Os.10 to 18. M.O.19 contains the wrapping
material used by the accused. M.Os.2 to 28 samples were taken in accordance
with Section 58 of the N.D.P.S. Act. The blue colour Toyoto Qualis car bearing
Registration No.TN-10-B-3747 is M.O.29. Physical examination of the accused
revealed no incriminating materials. On examination of the car nothing further
was found. P.W.6 examined the accused, who gave a voluntary statement which was
recorded under Section 67 of the N.D.P.S. Act. Under such statement written in
his own handwriting, the accused admitted his offence. Such statement is marked
as Ex.P.22.
7. Under requisite forms Ex.P5 and Ex.P6, by P.W.1 the vehicle and the
narcotic substances were placed in the customs godown. The accused was arrested
at 06.00 a.m. on 01.02.2004 by P.W.6. Ex.P.23 is the copy of the arrest memo.
The accused, vehicle and the contraband goods were produced before the learned
Judicial Magistrate, Trichy who remanded the accused to custody and directed the
production of the contraband goods and the vehicle before the trial court. The
connected Form.95 is Ex.P.24. The relatives of the accused were informed and the
copy of the telegram is Ex.P.25. The telegram receipt is Ex.P.26. The report of
the senior officials under Section 57 of N.D.P.S. Act is Ex.P.27. At 06.00 p.m.
on 31.02.2004, P.W.6 instructed the Revenue Intelligence Officer P.W.4 to
conduct search on the house where the accused resided D.No.A-26/1,
Thiru.Vi.Ka.Square, MMDA Colony, Chennai – 106 under Exh.P-10. Acting
thereunder P.W.1 and one other officer by name Raman took an independent
witnesses by name Maharaj Singh and Jeyaprakasam, went to the house at about 5
p.m., where they found one Lakshmanan P.W.4 and informed the purpose.
Lakshmanan informed that the accused had taken the house on rent. The house was
searched in the presence of the independent witnesses and Ex.P.11, a Srilankan
passport issued in the name of the accused was found. Requisite mahazar for
recovery of the passport and search of the house was prepared under Ex.P.12
which was signed by the independent witnesses and the said Lakshmanan.
8. Again on instructions of P.W.6, P.W.4 required the owner of the Qualis
car bearing Registration No.TN-10-B-3747, A.Selvarathinam to appear before him
on 09.02.2004 under summons dated 05.02.2004, which was issued under Section 67
of the N.D.P.S. Act. Copy of the summon is Ex.P.13. The said Selvarathinam
appeared before P.W.4 on 09.02.2004 and informed under Ex.P14, that the Qualis
car had been given on hire to the accused for two days from 30.01.2004. Ex.P.15
is the photo of the accused, which was identified by the said Selvarathinam
under his signature. On 12.02.2004, the said Selvarathinam handed over the copy
of the vehicle registration certificate, Ex.P.17 along with his hand-written
letter Ex.P.16. P.W.6 prepared a test memo through Intelligence Officer, one
Rajasekar for samples P1S1 to P9S1 and sent the same for chemical examination,
under Ex.P.9.
9. P.W.3, the Assistant Chemical Examiner at the Customs Laboratory on
03.02.2004 received samples P1S1 to P9S1 samples under deposit memo Ex.P8. He
compared the seals of requisition letter Ex.P9 with those on the sample packets
and found the same to be in order. After examination, he issued a report Ex.P.7
that the sample contained Diacetyl Morphine. The remaining articles were sealed
and sent through P.W.1 to the Trichy Revenue Intelligence Unit. The seized
narcotic substances was dealt with in keeping with Section 52-A of the N.D.P.S.
Act, by the learned Judicial Magistrate, Pudukkottai. Due procedure was
observed and the record of proceedings marked as Ex.P.18. The learned Judicial
Magistrate’s report is Ex.P.19. The 15 photographs taken are Ex.P.20 series and
the negatives are Ex.P.21 series. On completion of investigation, a final
report was filed by P.W.6 against the accused for offences under Section 8(c)
r/w.27,28 and 29 of the N.D.P.S. Act, on 01.06.2004. On questioning, the
accused denied the offences. No witnesses were examined on behalf of the
accused nor were any material objects were marked.
10. The trial Court on examination of the witnesses and materials
available before it and also on perusal of the records, found the accused guilty
and convicted and sentenced him to undergo rigorous imprisonment for 11 years
and to pay fine of Rs.1,00,000/- (Rupees one lakh only) in default to undergo
rigorous imprisonment for two years.
11. Heard the learned counsel for the appellant and the learned Special
Public Prosecutor.
12. The learned counsel for the appellant/accused submits that the very
recovery said to be effected in this case is doubtful, since according to P.W.1,
Central Revenue Intelligence Officer, the accused took the contraband from the
inside panel at the rear of the car and handed over the same, whereas in cross
he stated that the officers had recovered the same. It was the evidence of
P.W.2 that the accused took the contraband and handed over to the Senior
Intelligence Officer where as in cross he stated that the officials recovered
the contraband from the right side panel of the rear door of the vehicle. The
learned counsel for the appellant/accused submits that the contraband seized was
in private hands for three days and there is no explanation by the prosecution
as to why that was so. The accused was allegedly a tenant, who had used the
vehicle of belonging to another. But the owner of the vehicle had not been
examined. The learned counsel for the appellant/accused drew the attention of
this Court to the evidence of P.W.2 to the effect that the accused was not the
sole occupant of the car, in which the contraband was found. The learned
counsel also pleads the non-compliance and violation of the mandatory provisions
contained in Section 42(1)(2), 43 and 50 of the N.D.P.S. Act. The learned
counsel impresses upon this Court that in this case seizure and investigation
into the case was done by one and the same official and that the same was
illegal. The final submission of the learned counsel is that the accused, who
is now married has already undergone six years imprisonment, which should be
sufficient punishment, even if he is found guilty. It is open to this Court to
show leniency on the question of sentence in default of payment of fine and that
this Court, in the circumstances of the case would do so.
13. The learned counsel for the petitioner relied on the decisions of this
Court dated 15.06.2001 in Crl.A.No.825 of 1995, Thalavoi v. State represented by
Inspector of Police, Cheranmahadevi Police Station, Cheranmahadevi, 1995 The
Madras Law Journal Reports (Criminal) 410 and the Hon’ble Supreme Court in Megha
Singh v. State of Haryana, 1997 Supreme Court Cases(Cri) 267 for the proposition
that the seizure officer cannot be Investigating Officer of the case. On the
contention on the contraband being in private hands for three days, the learned
counsel relied on the decision of Calcutta High Court in Samir Ghosh v. State of
West Bengal, 2001(1) Crimes 505 and submitted that the possibility of
substitution of what was seized towards rendering him guilty could not be ruled
out.
14. The learned counsel relied upon decisions of this Court in Sundaresan
alias Meganathan alias Mega v. State represented by the Inspector of Police, R4,
Pondy Bazaar Police Station, T.Nagar, Madras – 17, 1993 L.W.(Crl.)371, Panjab
and Haryana High Court in Ved Parkash alias Tatoo v. State of Haryana, 1993(1)
Crimes 101, Hon’ble Supreme Court in State of Rajasthan v. gopal, 1998 Supreme
Court Cases (Cri) 1587, State of Orissa v. Laxman Jena, 2002(4) Crimes 29 (SC)
and Orissa High Court in Dwarika @ Tarini Patra and Anr. v. State of Orissa,
2001(1) Crime 540 to impress upon this Court to the importance of compliance of
mandatory provisions of Sections 41, 42 and 50 of NDPS Act.
15. He also relied on the decision of the Hon’ble Supreme Court in Valsala
v. State of Kerala, AIR 1994 Supreme Court 117 and contended that the delay in
sending the samples for chemical examination had caused prejudice to the
accused. Again pressing the submission on the contraband having been in private
hands for three days, the learned counsel relying on the decision of this Court
in Ananthi v. State rep. by N.I.B., C.I.D., Trichy, (2002)1 MWN(Cr.)118,
submitted that it must be taken that the prosecution has failed to establish
that the material, which was seized from the accused was the material sent to
the laboratory for chemical examination. The learned counsel submitted that in
the instant case, the facts do not warrant the conclusion that the accused was
in continuous possession of the contraband and in this regard the learned
counsel relies on the decisions of the Hon’ble Supreme Court in Avtar Singh &
Ors. v. State of Punjab, 2003-2-L.W.(Crl.)651, Gopal v. State of M.P., 2002(2)
Crimes 168(SC), Orissa High Court in Pitabas Pradhan v. State of Orissa, 2002(2)
Crimes 250 and this Court in K.Mani v. The Asst. Collector, Customs Prosecution
Unit, Customs House, Chennai, 2002(2) MWN(Cr.) 322. Relying on the above
decisions cited, the learned counsel submitted that the present appeal was one,
which deserved to be allowed.
16. On the other hand, the learned Special Public Prosecutor submitted
that the information received in the case had been marked as Ex.P1 and pursuant
thereto, the accused has been duly apprehended and recovery of contraband
effected. As no physical search of the accused was made in this case, no
question of compliance with Section 50 of the Act arose, but despite that a
consent letter of the accused Ex.P2 towards conducting search was obtained. In
any event when a gazetted officer was present on the scene, no further
requirement stood to be met. The statement recorded under Section 67 of the Act
was in the handwriting of the accused himself and the confession contained
therein was in itself sufficient to attract conviction. The seizure made in
this case was beyond doubt. That what was sent for analysis were the samples of
what was seized from the accused was proved through Ex.P9, the requisition
seeking qualitative analysis, the samples which had been marked as P1S1 to P9S1,
the bearing of three seals in each of such samples, the departmental specimen
seal thereon and the test report Ex.P7 showing that the seals were found intact
and that the same tallied with the specimen seal given in Ex.P9. Ex.P9 also
reveals that the contraband was seized from the accused on the alleged date and
from the vehicle in which he was travelling. The learned Special Public
prosecutor also took the Court through the evidence of P.W.6, Senior
Intelligence Officer, who spoke to having sent the S1 samples for chemical
examination to the Chief Chemist, Customs House Laboratory, Chennai, upon
requisition of the Intelligence Officer, under Ex.P9. P.W.6 also explained that
between 01.02.2004 to 03.02.2004 i.e., the dates on which according to the
counsel appearing for the appellant, the contraband was in private hands, the
contraband was in his custody. He deposed that when the same was produced
before the learned Judicial Magistrate, Trichy on 01.02.2004, the same was
neither weighed nor opened, but was returned by the learned Judicial Magistrate
with the direction to produce before the trial Court. Thereafter, the same was
produced before the trial Court on 13.02.2004. According to him, between
03.02.2004 and 13.02.2004, the contraband was in the customs warehouse. Thus,
according to the learned Special Public Prosecutor the due custody of the
contraband stood proved and there was nothing to suspect the veracity of the
prosecution case. The learned Special Public prosecutor also submitted that
Sections 41 and 42 of the N.D.P.S. Act, had no application in this case as the
seizure was effected on the road i.e., in a public place.
17. The contention of the learned counsel for the appellant/accused that
the officer conducting search could not be the Investigating Officer, is met by
placing reliance on the decision of this Court Thirumallar v. The Inspector of
Police, N.I.B.C.B.C.I.D., Trichy, (2001) M.L.J.(Crl.) 707.
“20.Though the learned counsel for the appellant would contend that the
said observation of the Honourable Supreme Court cannot be applied for the said
proposition inasmuch as the said issue was not really canvassed before it, I am
unable to accept the said submissions of the learned counsel. The judgment
rendered in State of Pubjab v. Balbir Singh, 1994 S.C.C. (Crl.) 634, arose
directly under the provisions of the NDPS Act and while considering the various
provisions of the NDPS Act vis-a-vis, the provisions of the Code of Criminal
Procedure, their Lordships were pleased to rule that an investigation carried on
by an empowered officer who caused the search, seizure an arrest was proper.
Further in the Judgment reported in Gopal Gani Ram and others v. Superintendent
of Customs and Central Excise, C.T.U., Tiruchirapalli, 1999 M.L.J. (Crl.) 387,
the learned Judge of this Honourable Court following the Honourable Supreme
Court reported in 1994 S.C.C. (Crl.) 634, held that under the provisions of the
NDPS Act, the officer who is empowered to conduct search is also empowered to
make further investigation and complete the investigation in accordance with law
and therefore the fact that the complainant himself conducted the investigation
examined the witnesses would not vitiate either the trial or investigation or
the conviction. The Judgment reported in 1999 M.L.J. (Crl.) 387 being one
rendered in a case which arose under the NDPS Act itself, as against the
judgment rendered in 1995 M.L.J. (Crl.) 410, I prefer to follow the ration of
the former to that of the later”.
18. For the proposition that neither Section 42 nor 50 of the Act had any
application in this case, the learned Special Public Prosecutor relied on the
decision of the Hon’ble Supreme Court in K.Chithhayan v. State of Tamil Nadu,
(2008)11 Supreme Court Cases 363.
“9. So far as Section 42(2) is concerned it is to be noted that search was
made in a public place and not in a building and as such what was applicable was
Section 43 and not Section 42(2) of the Act. The decision of this Court in State
of Punjab v. Baldev Singh is clearly applicable to the facts of the present
case. The view in Baldev Singh case was reiterated in State of Haryana v.
Jarnail Singh.
10. So far as the applicability of Section 50 of the Act is concerned, it
is to be noted that there was search of the bag carried by the appellant and
there was no personal search. It has been held in State of H.P. v. Pawan Kumar
that when there is no personal search and the search is effected in relation to
a bag, Section 50 of the Act has no application”.
19. For the proposition that when the seals were in tact and it was
certain that it was the contraband seized, which has been sent for analysis,
then the prosecution case would not suffer even if there was any delay in
sending samples for examination, the learned Special Public Prosecutor relied on
the decision of the Hon’ble Supreme Court in Hardip Singh v. State of Punjab,
(2008)3 Supreme Court Cases (Crl.)590.
“17. The then Station House Officer, Inspector Baldev Singh, who was
examined as PW 1, was posted at Police Station Ajnala on the date of occurrence.
He received the said samples of opium along with case material, being produced
before him by PW 5. It has come on evidence that Inspector Baldev Singh kept the
entire case property with him till it was deposited in the office of the
Chemical Examiner, Amritsar on 30-9-1997 through ASI Surinder Singh (PW 3). It
has also come on evidence that till the date the parcels of sample were received
by the chemical examiner, the seal put on the said parcels was intact. That
itself proves and establishes that there was no tampering with the aforesaid
seal in the sample at any stage and the sample received by the analyst for
chemical examination contained the same opium which was recovered from the
possession of the appellant. In that view of the matter, delay of about 40 days
in sending the samples did not and could not have caused any prejudice to the
appellant. The aforesaid contention, therefore, also stands rejected”.
20. The learned Special Public Prosecutor also submitted that Section 67
statement given by the accused in the case was a voluntary one and in such was
the case, the conviction could follow thereon. In support of his contention, he
relied on the decision of the Hon’ble Supreme Court in Kanhaiyalal v. Union of
India, (2008)4 Supreme Court Cases 668.
“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.
47. … … … Since a conviction can be maintained solely on the basis
of a confession made under Section 67 of the NDPS Act, we see no reason to
interfere with the conclusion of the High Court convicting the appellant”.
21. In support of his contention that when the gazetted officer was
present, no further requirement under Section 42 or Section 50 was required to
be met, learned Special Public Prosecutor relied the decision of the Hon’ble
Supreme Court in State of Haryana v. Jarnail Singh and others, (2004)5 Supreme
Court Cases 188.
“10. In the instant case there is no dispute that the tanker was moving on
the public highway when it was stopped and searched. Section 43 therefore
clearly applied to the facts of this case. Such being the factual position there
was no requirement of the officer conducting the search to record the grounds of
his belief as contemplated by the proviso to Section 42. Moreover it cannot be
lost sight of that the Superintendent of Police was also a member of the
searching party. It has been held by this Court in M. Prabhulal v. Asstt.
Director, Directorate of Revenue Intelligence that where a search is conducted
by a gazetted officer himself acting under Section 41 of the NDPS Act, it was
not necessary to comply with the requirement of Section 42. For this reason
also, in the facts of this case, it was not necessary to comply with the
requirement of the proviso to Section 42 of the NDPS Act.
11. We, therefore, hold that in the facts of this case Section 50 of the
NDPS Act was not applicable since the contraband was recovered on search of a
vehicle and there was no personal search involved. The requirement of the
proviso to Section 42 was also not required to be complied with since the
recovery was made at a public place and was, therefore, governed by Section 43
of the Act which did not lay down any such requirement. Additionally, since the
Superintendent of Police was a member of the search party and was exercising his
authority under Section 41 of the NDPS Act, the proviso to Section 42 was not
attracted”.
22. I have considered the rival submissions.
23. The conviction by the lower Court rightly ought to have been under
Section 22(c) of the N.D.P.S. Act. Though the lower Court has convicted the
accused for offence under Section 21(c) of the Act, the same is hardly of any
material consequence in the facts and circumstances of the case. It may be
mentioned that Section 21 of the Act deals with any manufactured drug or any
preparation containing any manufactured drug while Section 22 deals with
psychotropic substances in general.
24. In the facts and circumstances of the case, it is seen that on receipt
of information, a record thereof was made in Ex.P.1 and in pursuance thereof,
the search party apprehended the accused and recovered the contraband from him.
The custody of the contraband from the time of recovery to the time, it reached
the trial Court stands sufficiently explained. The samples have been taken and
requisite seals have been affixed. It is clear that it is the samples, which
were taken from the seized contraband that had been sent for analysis. The test
report has confirmed that what was seized was contraband. In the above scenario
the finding of conviction and the sentence imposed, given the quantum of
contraband involved in this case viz., 11.364 Kgs cannot be faulted. The
application of Section 22(c) is attracted and thereby the sentence of 11 years
rigorous imprisonment stands imposed. This Court cannot show any indulgence or
leniency towards reducing the sentence imposed. However, on the question of
showing leniency in the quantum of sentence for failure to pay the fine imposed,
this Court finds it fit to follow the earlier decision of this Court in
Crl.A(MD)No.227 of 2005, which is relied upon by the learned counsel for the
appellant/accused, wherein it has been held that as against the default sentence
of two years on failure to pay the fine, this Court reduced the same to one of
one month. Similarly, in this case, this Court is of the view that on failure
to pay the fine of Rs.1,00,000/-, the accused shall be required to undergo
default sentence of one month rigorous imprisonment instead of two years.
25. In the result, this Criminal appeal deserves dismissal and accordingly
is dismissed and the conviction and sentence passed in C.C.No.334 of 2004 by the
learned Additional Sessions Judge cum Special Judge for EC and NDPS Act Cases,
Pudukottai are confirmed and the default sentence of two years rigorous
imprisonment alone is reduced to one month rigorous imprisonment. The trial
Court is directed to take appropriate action so as to have the accused serve out
the remainder of the sentence.
smn
To
1.The Additional Sessions Judge cum Special Judge
for EC and NDPS Act Cases,
Pudukottai.
2.The Senior Intelligence Officer,
Directorate of Revenue Intelligence,
17, Reynolds Road,
Cantonment,
Tiruchy – 620 001.
3.The Special Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.