{"id":186188,"date":"2002-06-25T00:00:00","date_gmt":"2002-06-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/abdulla-ibrahim-so-abdulla-vs-state-of-kerala-on-25-june-2002"},"modified":"2018-03-08T12:14:54","modified_gmt":"2018-03-08T06:44:54","slug":"abdulla-ibrahim-so-abdulla-vs-state-of-kerala-on-25-june-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/abdulla-ibrahim-so-abdulla-vs-state-of-kerala-on-25-june-2002","title":{"rendered":"Abdulla Ibrahim, S\/O. Abdulla vs State Of Kerala on 25 June, 2002"},"content":{"rendered":"
Kerala High Court<\/div>\n
Abdulla Ibrahim, S\/O. Abdulla vs State Of Kerala on 25 June, 2002<\/div>\n
Author: M H Nair<\/div>\n
Bench: M H Nair<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
  M.R. Hariharan Nair, J.  <\/p>\n
 1. The challenge in the appeal is with regard to the
\nconviction entered against the appellant as accused in
\nS.C. No. 150 of 1998 of the Special Court for trial of
\nN.D.P.S. Act cases (Sessions Court, Trivandrum) for the
\noffence under Sections 21 and 28 of the N.D.P.S. Act and
\nthe sentence of R.I. for 20 years and fine of Rs. 2
\nLakhs imposed for each of the said two offences.\n<\/p>\n
 2. The prosecution alleged that on 24.3.1998 the
\nfirst accused completed the check in procedure at the
\nTrivandrum Airport for leaving for Colombo and that just
\nbefore he was about to board the Aircraft concerned he was
\nstopped and questioned on suspicion by the Customs
\nSuperintendent. Though the accused originally disowned
\npossession of any contraband, he subsequently conceded
\nthat he had concealed in his body contraband for smuggling
\nout and thereupon he was produced before the Magistrate
\nfor orders for X-Ray screening under Section 103 of the
\nCustoms Act. Since the first accused expressed before the
\nMagistrate his readiness to co-operate with the
\nauthorities in the matter of disgorging the contraband he
\nwas taken to the Medical College Hospital and in
\nsubsequent search conducted through intervention of the
\nmedical officers 102 capsules which had been swallowed by
\nthe first accused and two bigger capsules which had been
\ninserted into his rectum were brought out. The contents
\nof all these were brown sugar of net weight 504 grams.
\nThese items were seized as per Ext. P2 series mahazars.
\nThe identity of the substance seized was confirmed by the
\nAnalyst who examined the sample prepared under Ext. P2 as
\n‘Heroin’.\n<\/p>\n
 3. Though there were four more accused arrayed in
\nthe case, the case against accused 3 and 4 were split up
\nand re-filed. After trial of original accused 1, 2 and 5
\nthe present appellant alone was convicted and original
\naccused Nos. 2 and 5 (re-arrayed as accused Nos. 2 & 3
\nin S.C. 150 of 1998) were acquitted.\n<\/p>\n
 4. Mr. Devaraj of the Chennai Bar, who argued
\nthe case for the appellant, submitted that there is no
\nevidence to show that the accused was in conscious
\npossession of the contraband. Reliance was placed on the
\nconfession statement of the first accused allegedly
\nrecorded by PW1 himself, to show that he was under the
\nbelief that the items handed over to the accused by
\nothers, with instruction to transport it to Sreelanka,
\nwere all dollar notes and that he never knew that the
\ncapsules that he had swallowed and inserted into his
\nrectum contained any narcotic drug or psychotropic
\nsubstance. Based on the said contention it is further
\nargued that even if the prosecution case is believed, the
\naccused has committed the offence under Section 135 of the
\nCustoms Act only by virtue of the operation of Section 79
\nof the N.D.P.S. Act. It is also alleged that the seizure
\neffected in this case was without recourse to the mandate
\nin Section 50 of the N.D.P.S. Act. Lastly it is argued
\nthat the punishment imposed is, in any event, excessive in
\nso far as the Court has inflicted the maximum punishment
\nallowed under the law for both the offences for which he
\nwas convicted. Yet another contention is that when there
\nis a conviction under Section 21 for possessing brown
\nsugar, there is no scope for invoking Section 28, which
\nactually contemplates only an offence of attempt.\n<\/p>\n
 5. I have heard the learned Public Prosecutor,
\naccording to whom, the appellant is a professional
\ncarrier, who had undertaken similar missions in the past
\nalso and his expertise is revealed by the fact that he
\ncould swallow as many as 102 capsules besides the capacity
\nto carry two big capsules in his rectum. As regards the
\ncompliance with Section 50 of the N.D.P.S. Act, it is
\npointed out that the seizure was effected in the presence
\nof PW3, who is a Gazetted Officer, notwithstanding the
\nfact that in a case where contraband is brought out from
\ninside the body through medical help, Section 50 is not
\nattracted. As regards the contention that the appellant
\nwas unaware that what he was carrying in the form of
\ncapsules was any manufactured drug, the learned Public
\nProsecutor points out that the accused is bound by the
\npresumptions contemplated in Sections 35 and 54 of the
\nN.D.P.S. Act. The punishment imposed is also sought to
\nbe justified on the ground that the accused is a
\nprofessional carrier and this is not his first errand.\n<\/p>\n
 6. On the arguments advanced in the case the
\npoints that arise for decision are:\n<\/p>\n
 1) Whether there is reliable evidence to conclude
\nthat the accused was in conscious possession of 504 grams
\nof heroin as alleged?\n<\/p>\n
 2) Whether the seizure is in conformity with the
\nrequirement of Section 50 of the N.D.P.S. Act?\n<\/p>\n
 3) Whether the conviction under Section 28 is
\njustified when there is a conviction for the offence under
\nSection 21 of the N.D.P.S. Act? and   <\/p>\n
 4) Whether the conviction and sentence entered
\nagainst the appellant are justified?\n<\/p>\n
 7.  Point No. 1: The fact that 102 capsules which
\nhad been swallowed by the first accused and two bigger
\ncapsules which had been concealed inside the rectum of the
\nappellant were actually brought out through medical help
\nwhile in the Medical College Hospital is not seriously
\ndisputed before me. There is also the evidence of PW1,
\nwho was the Intelligence Superintendent, Air Customs,
\nTrivandrum to the effect that the apprehension of the
\naccused took place based on Ext. P21 information, pursuant
\nto which surveillance was mounted in the vicinity of
\ndeparture lounge in the International Airport on the
\nparticular day and that at about 8 a.m. the first accused
\nwas seen waiting inside the departure lounge for
\nproceeding to the security check point after completing
\nthe immigration clearance. The first accused was
\nquestioned and when his answer denying possession of any
\nsuch contraband was found unacceptable, he was apprised of
\nhis right under Section 50 of the N.D.P.S. Act to have
\nthe search done in the presence of a Gazetted Officer or
\nMagistrate. Based on Ext.P16 statement to the effect that
\nsearch might be conducted in the presence of a Gazetted
\nOfficer, PW3, who is a Gazetted Officer of the Central
\nExcise Department, was brought and in the subsequent body
\nsearch nothing was found concealed inside his dress nor on
\nhis body outwardly. It was therefore decided to have an
\nX-ray examination.\n<\/p>\n
 8. The fact that the accused was subjected to
\nX-ray examination is spoken to by PW4, who was the Head of
\nthe Department of Radio Diagnosis, Medical College,
\nTrivandrum. His evidence shows that multiple foreign
\nbodies were found inside the stomach and rectum of the
\nfirst accused. Exts.P17 and P18 are the X-ray films
\nshowing the said fact and Ext.P1 certificate issued by PW4
\nshows the relevant details.\n<\/p>\n
 9. PW3, who is a Gazetted Officer, has
\ncorroborated the evidence of PW1 in the above matter. His
\nevidence shows the details of ejectment of capsules from
\ninside the body of the appellant.\n<\/p>\n
 10. PW1 has spoken about the details of sampling
\nand the seizure effected. His evidence shows that the
\ntotal weight of the contraband seized in the case was
\nfound to be 504 grams. Four of the samples produced in
\nCourt were sent over to the Central laboratory at Delhi
\nfor analysis and Ext.P13(a) report confirmed the fact that
\nit contained diacetyl morphine, which is the constituent
\nof heroin. The result revealed by the analysis directly
\nmade by the departmental laboratory evidenced by
\nExt.P14(a) also to the same effect. In these
\ncircumstances there is adequate evidence available in the
\ncase to show that heroin weighing 504 grams was actually
\nfound concealed inside the body of the first accused when
\nhe had completed immigration formalities and was about to
\nsubject himself to security check after having checked in
\nat the Trivandrum International Airport for taking flight
\nto Sreelanka on 24.3.1998.\n<\/p>\n
 11.  Point No. 2:  The trial court has observed
\nthat in a case where contraband is seized from inside the
\nbody of a person Section 50 of the N.D.P.S. Act is not
\nattracted. In the instant case, the medical examination
\nor the X-ray test was not the first step followed by PW1.
\nInitially the appellant was alerted of his right under
\nSection 50 of the N.D.P.S. Act and the body search was
\nconducted, but that was futile. But before doing so, the
\nnecessary formalities had been followed and in Ext.P9
\nstatement the appellant had stated that presence of any
\nMagistrate was not essential. The examination was in fact
\nmade in the presence of PW3. During the recovery of the
\nitems at the hospital also he was present. In such
\ncircumstances the appellant cannot be heard to contend
\nthat there is violation of Section 50 of the N.D.P.S. Act
\njustifying acquittal.\n<\/p>\n
 12. The appellant has a contention that he was
\nnot in conscious possession and that hence the offence is
\nnot complete. In this regard it is pointed out that even
\nbefore the Magistrate he had mentioned that he was having
\ndollar notes concealed in his body and that this indicates
\nthat the accused was under the belief that what he had
\nswallowed and concealed in the rectum were only dollar
\nnotes. Pursuant to the said contention the M.Os. in the
\ncase were brought down and examined. What is seen is that
\nthe capsules were not factory made. Actually the heroin
\nwas inside a plastic packet. That was covered with yellow
\ninsulation tape and to cover it further an outer balloon
\nwas used. This is presumably to avoid contamination of
\nthe substance while inside the body of the first accused.
\nIt may be that the accused did not have an opportunity to
\nsee what was inside the capsules before they were put into
\nhis body. That, however, is not sufficient to conclude
\nthat he had not knowledge of the contents.\n<\/p>\n
 13. Section 35 of the N.D.P.S. Act provides that
\nin such a prosecution requiring culpable mental state of
\nthe accused, the Court shall presume the existence of such
\nmental state but it shall be a defence for the accused to
\nprove the fact that he had no such mental state with
\nrespect to the act charged as an offence. The accused did
\nnot go to the box to speak about the knowledge that he
\nhad. Nor was any other witness examined or documents
\nproduced to show that his knowledge was otherwise. On the
\nother hand, the statements recorded by the authorities go
\nto indicate that the accused had in fact the information
\nas to the contents. It is to be mentioned here that even
\naccording to his statement he had gone abroad thrice and
\nthis is not the first occasion when he was acting as a
\ncarrier. Again, Section 54 of the Act enables this Court
\nto presume that unless and until the contrary is proved
\nthat the accused has committed the offence under the Act
\nin respect of any narcotic drug or psychotropic substance
\nas long as possession of the item is not accounted for
\nsatisfactorily by the accused.\n<\/p>\n
 14. The Apex Court had occasion to deal with the
\nscope and ambit of Section 35 of the N.D.P.S. Act in
\n Abdul Rashid Ibrahim Mansuri v. state of Gujarat  (2000
\nCrl. L.J. 1384). A Bench of three Judges held therein
\nthat when it is shown that a narcotic drug was in the
\npossession of a person or vehicle driven by him, the
\nburden is on him to prove that he had no knowledge about
\nthe fact that the item carried was a substance under the
\nN.D.P.S. Act. The standard of proof required is proof
\nbeyond a reasonable doubt. If the Court, on an appraisal
\nof the entire evidence does not entertain doubt of a
\nreasonable degree that the accused had real knowledge of
\nthe nature of the substance concealed, then the appellant
\nis not entitled to acquittal. However,if the Court
\nentertains strong doubt regarding the accused’s awareness
\nabout the nature of the substance carried by him, it would
\nbe a miscarriage of criminal justice to convict him
\nkeeping such strong doubt undispelled. Even so, it is for
\nthe accused to dispel any doubt in that regard. The
\nburden of proof cast on him under Section 35 can be
\ndischarged through different modes, viz. (1) he can rely
\non the materials available in the prosecution evidence;
\n(2) he can elicit answers from prosecution witnesses
\nthrough cross examination to dispel the doubt; and (3) he
\nmay adduce other evidence at the stage of defence
\nevidence. If the circumstances appearing in prosecution
\ncase or in the prosecution evidence are such as to give
\nreasonable assurance to the Court that the appellant could
\nnot have had the knowledge or the required intention, the
\nburden cast on him under Section 35 of the Act would stand
\ndischarged even if he has not adduced any other evidence
\nof his own when he is called upon to enter on his defence.\n<\/p>\n
 15. Applying the said decision to the facts of
\nthis case, I do not find any reason to accept the defence
\ncontention that the accused has discharged his burden
\narising under Section 35 of the Act. The mere statement,
\nwhen questioned by PW1 that he was under the impression
\nthat what was conveyed to him was dollar notes is
\ninsufficient to discharge the burden arising under this
\nsection.\n<\/p>\n
 16. In the circumstances the conviction for the
\noffence under Section 21 of the N.D.P.S. Act is certainly
\njustified and the alternative suggested by the accused
\ni.e. to alter the conviction to one under Section 135 of
\nthe Customs Act involving Section 79 of the N.D.P.S. Act
\nis unacceptable.\n<\/p>\n
 17.  Point No. 3: It is true that when there is a
\nconviction for the offence under Section 21 an attempt to
\ncommit the same offence does not deserve any separate
\nconviction or sentence. But in the present case Section
\n28 is invoking against the accused not because he was
\ntrying to possess the contraband. On the other hand, the
\nallegation is that he was trying to export the items by
\nboarding the Sreelanka Flight, which was to take off
\nwithin minutes of his check in at the Airport after
\nloading himself with the contraband. Section 21 does not
\ncover merely possession. Export is also one of the
\ningredients mentioned in Section 21. As far as that
\naspect of Section 21 is concerned, only an attempt stands
\nestablished. If the accused had not been apprehended at
\nthe particular time and he could manage to get into the
\nAircraft, the office of ‘export’ also would have been
\ncompleted. In that perspective there was scope for
\ninvolving Section 28 also as far as the offence ‘attempt to
\nexport’ was concerned. That the appellant has accepted
\nthe contraband given to him by other persons and was
\nacting only as a carrier does not alter the situation. In
\nthe circumstances the conviction entered against the
\naccused for the offence under Section 21 and 28 of the
\nN.D.P.S. Act cannot be assailed.\n<\/p>\n
 18.  Point No. 4:  What remains is the aspect of
\nsentence. The learned Public Prosecutor submitted that
\nthere is no justification for reducing the sentence
\nimposed by the trial court in so far as it is established
\nthat the accused had engaged himself in activity as
\ncarrier even earlier and since the quantum of brown sugar
\nseized in the case is substantial. He however, concedes
\nthat there is no previous conviction against the accused
\nfor any offence under the N.D.P.S. Act. The value of the
\ncontraband seized in the case, according to the market
\nprice prevailed in India, is said to be around
\nRs. 50,000\/-. Taking into account this aspect I think some
\nreduction is called for in the matter of sentence. The
\nsubstantive term of imprisonment for the offence under
\nSections 21 and 28 of the N.D.P.S. act are hence brought
\ndown from R.I. for 20 years to R.I. for a period of 12
\nyears. Both will be suffered concurrently. The fine
\nimposed in the case, which is the maximum under Section
\n21, is also brought down to Rs. 1 Lakh for each of the
\ntwo offences with alternative term of R.I. for one year
\neach.\n<\/p>\n
 The appeal is disposed of with this reduction in
\nsentence.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Abdulla Ibrahim, S\/O. Abdulla vs State Of Kerala on 25 June, 2002 Author: M H Nair Bench: M H Nair JUDGMENT M.R. Hariharan Nair, J. 1. The challenge in the appeal is with regard to the conviction entered against the appellant as accused in S.C. No. 150 of 1998 of the Special […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-186188","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nAbdulla Ibrahim, S\/O. 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