{"id":19723,"date":"2007-01-11T00:00:00","date_gmt":"2007-01-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/joseph-micheal-rajamani-fernando-vs-state-of-kerala-on-11-january-2007"},"modified":"2016-05-31T16:36:03","modified_gmt":"2016-05-31T11:06:03","slug":"joseph-micheal-rajamani-fernando-vs-state-of-kerala-on-11-january-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/joseph-micheal-rajamani-fernando-vs-state-of-kerala-on-11-january-2007","title":{"rendered":"Joseph Micheal Rajamani Fernando vs State Of Kerala on 11 January, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
Joseph Micheal Rajamani Fernando vs State Of Kerala on 11 January, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL A No. 1270 of 2003(A)\n\n\n1. JOSEPH MICHEAL RAJAMANI FERNANDO,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA, REPRESENTED BY A\n                       ...       Respondent\n\n                For Petitioner  :ADV.LIJU V STEPHEN(STATE BRIEF)\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice K.THANKAPPAN\n\n Dated :11\/01\/2007\n\n O R D E R\n                              K. THANKAPPAN,  J.\n\n                                --------------------------------------\n\n                            Crl.A.No.1270 OF 2003\n\n                              ---------------------------\n\n                 Dated this the  11th   day of  January,  2007.\n\n\n                                   J U D G M E N T\n<\/pre>\n
      Appellant is the  1st  accused in S.C.No.151\/1998     on the<\/p>\n
file of the  1st   Additional   Sessions  Court,   Trivandrum.       The<\/p>\n
prosecution allegations  against the appellant are as follows:<\/p>\n
      In furtherance of a  criminal conspiracy hatched between<\/p>\n
A1 and A3 in Sree Lanka, A1   came to India from Sree Lanka<\/p>\n
on   20.3.1998   with   the   intention   to   illegally     export     narcotic<\/p>\n
drugs from India to Sree Lanka.  A1 checked into room No.308<\/p>\n
of Om Tourist Home at Thampanoor, Thiruvananthapuram on<\/p>\n
20.3.1998  itself.   Thereafter A1 informed his house about his<\/p>\n
stay at the  said     tourist  home.    After making enquiries  about<\/p>\n
the stay of A1, A3 came to Thiruvananthapuram and met A1 on<\/p>\n
22.3.1998 in his room.  A3 was then having in his possession a<\/p>\n
bag   containing     narcotic     drug   which   has   to   be   sent   to   Sree<\/p>\n
Lanka,   and   packing     materials   like   cellotapes,   black   leather<\/p>\n
sheets   and   also   an   electronic   weighing   machine.     A1   had<\/p>\n
purchased   a     soldering   iron   for   packing   the   narcotic   drug   as<\/p>\n
per   the   directions   of   A3.       In   room   No.308   of     Om   Tourist<\/p>\n
CRL.A.NO.1270\/2003                       2<\/span><\/p>\n
  Home, A3 weighed the narcotic drug he had brought  with the<\/p>\n
  help of electronic weighing machine in the presence of A1 and<\/p>\n
  together they  concealed the narcotic drug in a black coloured<\/p>\n
  bag,   with   the   help   of   polythene,   cellotapes   and   resin.<\/p>\n
  Thereafter     A3     left     after   informing   A1   that     he   would   send<\/p>\n
  somebody to take the same to Sree Lanka and that A1 should<\/p>\n
  contact his residence on 23.3.1998.   Accordingly,  A1  rung up<\/p>\n
  his   residence   in   the   night   of   23.3.1998   from   where   he   was<\/p>\n
  informed by his family members that a friend of A3 has passed<\/p>\n
  on   a   message   that   a   lady   would   be   come   to<\/p>\n
  Thiruvananthapuram   by   Air   Lanka   Flight   on   23.3.1998.     The<\/p>\n
  colour of the dress the lady would wear and her features  were<\/p>\n
  also   informed.                 Accordingly,         A1   went   to   the<\/p>\n
  Thiruvananthapuram Air   Port  and   the   lady  who is   A2  herein<\/p>\n
  and   took   her   to   Hotel     Thamburu   in   room   No.405.     The   said<\/p>\n
  room was taken in the name of A1.   The   sole intention of A1<\/p>\n
  was     to   illegally   export   the   narcotic   drug     kept     concealed<\/p>\n
  inside  the black coloured bag through A2.  A2 had come down<\/p>\n
  to Thiruvananthapuram from Sree Lanka as instructed by one<\/p>\n
  Antony Joseph who is her  brother  who had promised her that<\/p>\n
  A1   would   help  her financially  if she could carry some trade<\/p>\n
CRL.A.NO.1270\/2003                      3<\/span><\/p>\n
  goods   on   behalf   of   A1   from   Thiruvananthapuram     to   Sree<\/p>\n
  Lanka.   While   A2 was staying   in the said Hotel, A1 informed<\/p>\n
  her that on 27.3.1998 she will   have to proceed to Sree lanka<\/p>\n
  with a bag which would  contain some trade items and that the<\/p>\n
  said bag should be handed over to a person who approach her<\/p>\n
  at Colombo Air Port.\n<\/p>\n<\/p>\n
  2.    On  the   above    allegations,  a  charge  was framed  against<\/p>\n
  the  appellant  and  the  2nd  accused   under Sections  21,  23,  29<\/p>\n
  and    Section  135 of the  Customs   Act, 1962.              As the    3rd<\/p>\n
  accused   was reported   absconding, the appellant and   the 2nd<\/p>\n
  accused faced trial.     To prove the   case against the appellant<\/p>\n
  and   the  2nd  accused,    the   prosecution     examined   Pws   1   to  8<\/p>\n
  and relied on Exts.P1 to P21.   MOs 1 to 5  were also produced.<\/p>\n
  On the closing of the prosecution evidence, the appellant  and<\/p>\n
  the   other   accused   were   questioned   under   Section   313   of   the<\/p>\n
  Code   of   Criminal   Procedure.       The   appellant   denied   the<\/p>\n
  allegation     levelled   against   him   and   had   stated   that   on<\/p>\n
  26.3.1998,   the     3rd  accused     came     to   his   room   and   told   him<\/p>\n
  that he had  a bag with him as  more than the  excess quantity<\/p>\n
  permissible     to   carry   in     the   plain   and   he   had   asked   that<\/p>\n
CRL.A.NO.1270\/2003                      4<\/span><\/p>\n
  whether the appellant could carry the bag in the plain.       The<\/p>\n
  appellant   further   had   stated   that   he     had   stated   to   the   3rd<\/p>\n
  accused that he was having  enough luggage    with him.  The<\/p>\n
  3rd  accused   asked him   whether  he  could take the bag up to<\/p>\n
  the Airport  and to handover the same to another.   Further the<\/p>\n
  appellant had stated that the  3rd accused came to his room on<\/p>\n
  27.3.1998 in the early morning and     entrusted   a bag to him<\/p>\n
  and said that the bag  would be  collected at the Airport by one<\/p>\n
  Balamurukan.     The appellant   agreed to carry   the bag up to<\/p>\n
  the Airport  and    when  the appellant and A2  were waiting   at<\/p>\n
  the Airport for  the said Balamurugan,  Customs Officers came<\/p>\n
  there and asked about the  bag and the  contents therein.    He<\/p>\n
  said  that  his bag contained  only  cloths  and the 3rd accused<\/p>\n
  had given    a bag to him to handover to Balamurugan.     Then<\/p>\n
  the Customs Officers  asked him whether they could check the<\/p>\n
  said   bag   and   the   appellant   agreed   for   that.       However,   the<\/p>\n
  Customs Officers  questioned him   about  the bag entrusted by<\/p>\n
  the   3rd  accused.       When   the     Customs   Officers     insisted   for<\/p>\n
  checking     of   the   bag   entrusted     by   the     3rd  accused,       the<\/p>\n
  appellant     said that,       that shall be done   only     on   coming<\/p>\n
  Balamurugan   or   the   3rd  accused.       But   the   Customs   Officers<\/p>\n
CRL.A.NO.1270\/2003                         5<\/span><\/p>\n
  threatened   him   and   had   taken   the   bag   and   thereafter     the<\/p>\n
  Customs Officers   had   got his signature and he and   the   2nd<\/p>\n
  accused were  produced  before  the  court and they were  sent<\/p>\n
  to jail.   However,  on relying on the evidence   adduced  by the<\/p>\n
  prosecution,  the trial court  found that  the  2nd accused is not<\/p>\n
  guilty   of   any   of   the   offences   charged.       But   the     trial   court<\/p>\n
  found the appellant guilty   under Sections 21     and 30 of the<\/p>\n
  NDPS   Act,   1985,     and   he   was     convicted   thereunder     and<\/p>\n
  sentenced to undergo R.I for  ten years  and a fine of Rs. One<\/p>\n
  lakh with default  sentence of  fine a further period of  R.I  for<\/p>\n
  one more year and   he was further sentenced   to undergo R.I<\/p>\n
  for five years and a fine of Rs.50,000\/=   with default sentence<\/p>\n
  of     R.I     for   a   period   of     six   months   under   Section   30   of   the<\/p>\n
  NDPS   Act.     However,   the   trial   court   directed     that   the<\/p>\n
  substantive  sentences  shall run concurrently.   The benefit of<\/p>\n
  Section   428   was also allowed to the appellant.       The above<\/p>\n
  conviction and  sentences are  challenged in the appeal.<\/p>\n
  3.      Since the appeal is  filed through the jail authorities and<\/p>\n
  the   appellant   is   not   having     a   counsel   of     his   own   choice,   a<\/p>\n
  State brief member has been appointed to argue the case   for<\/p>\n
CRL.A.NO.1270\/2003                      6<\/span><\/p>\n
  the appellant.   This Court heard the counsel appearing for the<\/p>\n
  appellant   as   well   as   the     learned   Public   Prosecutor.       The<\/p>\n
  counsel  appearing  for  the  appellant raised  three   contentions<\/p>\n
  before this Court.   Firstly, the learned counsel submitted that<\/p>\n
  the trial court went wrong in placing reliance on the evidence<\/p>\n
  adduced by the prosecution  to find the appellant guilty under<\/p>\n
  Sections   21     and     30   and   as   there   was  no   independent     and<\/p>\n
  reliable     evidence     to   prove   the   case     against   the   appellant.<\/p>\n
  Secondly,   the   learned   counsel   submitted   that   the   trial   court<\/p>\n
  committed  serious error  in finding the appellant guilty of the<\/p>\n
  offences only on the basis of Ext.P21 confession  statement as<\/p>\n
  the   confession statement   has not been  recorded   as per the<\/p>\n
  provisions of the Criminal Procedure Code and the provisions<\/p>\n
  of the NDPS Act.   Thirdly, the learned counsel submitted that<\/p>\n
  the sentence awarded against the appellant is excessive.<\/p>\n
  4.    The   prosecution   examined     Pws 1  to 4  to  show  that   on<\/p>\n
  27.3.1998   the appellant   and the 2nd  accused   were found at<\/p>\n
  the       Trivandrum   International   Airport   with   MOs   1   to   5   and<\/p>\n
  thereafter the  appellant  and  the 2nd  accused were questioned<\/p>\n
  by PW1.   Body of the appellant and the 2nd  accused had been<\/p>\n
CRL.A.NO.1270\/2003                       7<\/span><\/p>\n
  searched   in   the   presence   of   a              Gazetted   Officer   as<\/p>\n
  contemplated under Section 50  of the NDPS Act.  Further the<\/p>\n
  prosecution had proved that  the appellant had given  Ext.P21<\/p>\n
  statement under Section  67 of the N.D.P.S.  Act  to PW1 which<\/p>\n
  was recored by PW1    as the officer  authorised under  Section<\/p>\n
  42   of   the     NDPS   Act.     Further   the   prosecution   had   tried   to<\/p>\n
  establish  that the appellant and the 3rd accused entered  into a<\/p>\n
  conspiracy   at   Sree   Lanka   and     in   consequence   of   that<\/p>\n
  conspiracy,     the   appellant   and   the   3rd  accused   came   to   India<\/p>\n
  and thereafter the appellant and the 3rd  accused had obtained<\/p>\n
  MO1  bag and filled  up    the same with  the  contraband article<\/p>\n
  namely   Morphine     weighing   about   1218.75   grams   of   heroin.<\/p>\n
  PW1  was the Air Customs  Intelligence Superintendent during<\/p>\n
  the   relevant     time.     He   had   given   evidence   before   the   court<\/p>\n
  that on 27.3.1998 while   he was   waiting at the  International<\/p>\n
  Airport, Trivandrum, the appellant and the 2nd accused came to<\/p>\n
  the Airport at about 9 a.m and he  got the information that  the<\/p>\n
  appellant     and   the   2nd  accused   were   having     narcotic   drugs<\/p>\n
  with   them.       After   recording   the   information     in       DRI     form<\/p>\n
  No.1 and     entrusted the same to the Assistant Commissioner<\/p>\n
  of   Customs,     who   was   the     immediate     Superior   Official.<\/p>\n
CRL.A.NO.1270\/2003                       8<\/span><\/p>\n
  Ext.P1 is the  copy of the same information.   According to this<\/p>\n
  witness,     A1     and     A2   came     to   the     Trivandrum   Airport     at<\/p>\n
  about   10.30   a.m   and   they   came     to   the   X-ray     counter   of<\/p>\n
  International Airport and  brought their luggages for  the X-ray<\/p>\n
  test.   PW1 along with PW2 and other  two witnesses went near<\/p>\n
  the appellant and the 2nd  accused       and identified himself as<\/p>\n
  the  Air Customs Intelligence  Superintendent and asked about<\/p>\n
  the Passport and other travel documents of A1 and A2.   It was<\/p>\n
  understood  that the appellant  came to India on 20.3.1998 and<\/p>\n
  the     2nd  accused     came   to   India   on   24.3.1998.     Both   the<\/p>\n
  appellant and the 2nd accused  were having their air tickets  to<\/p>\n
  Sree   Lanka   on   27.3.1998.       Approaching     the   appellant     and<\/p>\n
  A2,   PW1   asked   them   whether     their     bags   contained     any<\/p>\n
  contraband article.       They have answered that     nothing with<\/p>\n
  them.  However, PW1 asked the appellant and the 2nd accused<\/p>\n
  that   he   wants to   make a search of the body of the appellant<\/p>\n
  and     the   2nd  accused.     Further   he   asked   that   whether   they<\/p>\n
  want   the presence of any Gazetted Officer  or    Magistrate as<\/p>\n
  required  under Section 50 of the NDPS Act.  To this question<\/p>\n
  both   the appellant and the 2nd  accused   said that   they want<\/p>\n
  the presence of  two witnesses.  Pws 2 and 3 were also present<\/p>\n
CRL.A.NO.1270\/2003                       9<\/span><\/p>\n
  at   the   time   when   the   appellant   and   the   2nd  accused   were<\/p>\n
  questioned   and     prepared   Ext.P2   seizure   mahazar.     On<\/p>\n
  preparing  Ext.P2 mahazar,   MOs 1 to 5 were recovered from<\/p>\n
  the   appellant   and   the   2nd  accused.       Subsequently,       the<\/p>\n
  appellant had  given Ext.P5 (Ext.P21) under  Section 67 of the<\/p>\n
  NDPS Act and thereafter  at about 11.30 the appellant and the<\/p>\n
  2nd  accused   were   arrested.       This   witness   has   further   stated<\/p>\n
  that   he continued further  investigation  of the case and    sent<\/p>\n
  Ext.P11   report     to   PW4,   the   Additional   Commissioner   of<\/p>\n
  Customs at Trivandrum Airport.       This witness has         stated<\/p>\n
  that   further   investigation   of   the   case   has   been   conducted   by<\/p>\n
  PW   5.           This   witness   has  further   stated   that   PW7  recorded<\/p>\n
  Ext.P5   statement     in     Tamil   and     translated   the     same       into<\/p>\n
  English  as Ext.P21.       PW8,  the    Additional   Superintendent  of<\/p>\n
  Customs,   Trivandrum,     had   stated     that   he   continued   the<\/p>\n
  investigation and questioned other witnesses in  the case.   He<\/p>\n
  completed   the   investigation   and     complaint   was  filed     before<\/p>\n
  the court.  PW2 is the  witness,  who accompanied PW1, while<\/p>\n
  the appellant and the  2nd accused were questioned  and  at the<\/p>\n
  time of preparation of Ext.P2 mahazar by PW1. He had stated<\/p>\n
  that   he   attested     Ext.P2.     PW3,   the   other   witness   who   had<\/p>\n
CRL.A.NO.1270\/2003                     10<\/span><\/p>\n
  proved   that   he   was   also   present   on   27.3.1998   when   PW1<\/p>\n
  questioned the appellant and   the   2nd  accused.     This witness<\/p>\n
  has   further   stated   that   he   was   also   present   when   PW1<\/p>\n
  prepared   Ext.P2   seizure   mahazar.       PW4,   who   was   the<\/p>\n
  Additional Commissioner of Customs during the relevant time,<\/p>\n
  had   given   evidence   before   the   court   that     PW1   was   his<\/p>\n
  subordinate   and   on   21.3.1998   he   had   received   a   report   –<\/p>\n
  Ext.P12 from PW1.   PW5 was working as the  Superintendent<\/p>\n
  of     Central   Excise,   Trivandrum   and   he   had   stated   that   he<\/p>\n
  searched the  Om Tourist   Home at Trivandrum  and  prepared<\/p>\n
  Ext.P19    mahazar.     PW6  was examined to prove that he  had<\/p>\n
  sent   the   samples   for     chemical   analysis   and   had     obtained<\/p>\n
  Ext.P20   chemical   report   from     C.R.C.L,   New   Delhi   and<\/p>\n
  according   to   him,   Ext.P20   reveals   that   the   sample   is   Acetyl<\/p>\n
  Morphine of 48.5%.  According to this witness, he had received<\/p>\n
  the   sample   from   PW1   and     sent   the   sample   for     testing   and<\/p>\n
  got   the   result.         PW8   was     working   as   the   Additional<\/p>\n
  Commissioner   of   Customs,   Trivandrum.   He   had   also   given<\/p>\n
  evidence before the court that as per  the  information and the<\/p>\n
  report furnished by PW1 it is revealed  that on 27.3.1998 PW1<\/p>\n
  had     detected   the   offence   against   the   appellant   and   the   2nd<\/p>\n
CRL.A.NO.1270\/2003                     11<\/span><\/p>\n
  accused.     He   had   further   stated   that   PW7   had   filed   a   report<\/p>\n
  with  regard  to the  action  he  had taken   at the Airport   while<\/p>\n
  the     appellant   and   the   2nd  accused   were   questioned.         This<\/p>\n
  witness   has   further   stated   that   he   had   continued     the<\/p>\n
  investigation  of  the  case   and    filed       final  charge   against  the<\/p>\n
  appellant and the 2nd accused.   Relying on the above evidence,<\/p>\n
  the   trial   court   found     the   prosecution   had     succeeded   in<\/p>\n
  proving   the   case   against   the   appellant     that   he   had     in<\/p>\n
  possession of 1218.75 grams of Morphine (heroin) out of which<\/p>\n
  PW1 had taken sample and got   analysed   and as per Ext.P20<\/p>\n
  report it was established that the  sample  is  Acetyl Morphine<\/p>\n
  of 48.5 %.         From the evidence adduced by the prosecution,<\/p>\n
  it   was   proved   that   the   appellant   had             made   certain<\/p>\n
  preparations   to  export  Morphine  substances from  India to<\/p>\n
  Sree Lanka and   had brought the  same  to   the Airport.     But<\/p>\n
  due   to   the     interference   of     PW1   and   the   Customs   Officers,<\/p>\n
  that was not exported to Sree Lanka.  Hence, the appellant had<\/p>\n
  also committed an offence punishable under Section 30 of the<\/p>\n
  NDPS   Act.     On   the   above   finding,   the   trial   court     correctly<\/p>\n
  came to the conclusion that the prosecution  had succeeded in<\/p>\n
  proving   that   the   appellant   had   committed     the   offences<\/p>\n
CRL.A.NO.1270\/2003                        12<\/span><\/p>\n
  punishable under Sections 21  and  30 of the NDPS Act.<\/p>\n
  5.       In   the   light   of   the   contentions   raised     by   the   learned<\/p>\n
  counsel, this Court considered  the evidence of the prosecution<\/p>\n
  witnesses     once   again.     On   an   over   all   appreciation     of   the<\/p>\n
  entire  evidence  adduced  by the   prosecution,  it   could  be seen<\/p>\n
  that   the   trial   court   is     fully   justified   in   holding   that   the<\/p>\n
  appellant   was   found   in   possession   of   MO1   black   bag   which<\/p>\n
  contained 1218.75 grams of Morphine.  Hence, this Court is of<\/p>\n
  the  view   that    appreciation   of the  evidence    and the   findings<\/p>\n
  entered   by   the   trial   court   are     fully   justified.         The     second<\/p>\n
  contention   is   that     no   evidence     was   adduced   by   the<\/p>\n
  prosecution   other   than   Ext.P5   (Ext.P21   statement   which   has<\/p>\n
  been recorded  under Section 67 of the NDPS Act)  to find the<\/p>\n
  appellant   guilty   of   the   offence.       The   learned   counsel<\/p>\n
  appearing   for   the   appellant     contends   that     a   reading   of<\/p>\n
  Ext.P21   would   not   show   that   the   above   statement   was<\/p>\n
  recorded in accordance with Section 28 of   the Evidence Act.<\/p>\n
  The   learned   counsel   is   of   the   view   that   Ext.P21   can   be<\/p>\n
  considered  as a    confession  statement   given   by   the  appellant<\/p>\n
  while   he   was   in   the   custody     of   PW1   and   other   Customs<\/p>\n
CRL.A.NO.1270\/2003                    13<\/span><\/p>\n
  Officials.   Hence, it is the duty of the prosecution to prove that<\/p>\n
  the statement has been recorded by PW1  after  clearing of any<\/p>\n
  inducement or threat as per Section 28 of the Evidence Act.  In<\/p>\n
  this context,  the learned counsel submits that the prosecution<\/p>\n
  has     actually failed to prove that the appellant was having in<\/p>\n
  possession   of   MO1   bag     with   the     knowledge   that   the   bag<\/p>\n
  handed   over   by   A3   contained   contraband   article   alleged   to<\/p>\n
  have been  seized by PW1.  To substantiate this contention, the<\/p>\n
  learned   counsel     relied     on   a   judgment   of   the   Apex   Court<\/p>\n
  reported   in        Narcotics   Control   Bureau,   Jodhpur   v.<\/p>\n
  Murlidhar Soni<\/a>  (2004(5)  SCC 151).   In the above judgment,<\/p>\n
  the Apex Court had  held that the prosecution  to show that the<\/p>\n
  accused   is   in   conscious   possession   of   the   contraband.     The<\/p>\n
  Apex Court had considered the   factual situation   in that case<\/p>\n
  where the father of the accused came with a bundle   of cloths<\/p>\n
  and   the   accused   took   his   father   on   a   motor   bike     without<\/p>\n
  knowing     that   the   cloth   bundle   contained     the   contraband<\/p>\n
  article and   prosecution  had not  placed any material to show<\/p>\n
  that   the   accused   was   in     conscious     possession   of   the<\/p>\n
  contraband   and hence,   the Apex Court held the above view.<\/p>\n
  In this  context,  the  case  set up by the prosecution  that the<\/p>\n
CRL.A.NO.1270\/2003                        14<\/span><\/p>\n
  appellant was  found in possession of the contraband  article is<\/p>\n
  on the basis of Ext.P5 statement given  under Section 67 of the<\/p>\n
  NDPS Act.   The contention  of the learned counsel   that since<\/p>\n
  Ext.P21   is   a     confession   statement,   it   is   the   duty   of   the<\/p>\n
  prosecution   to   prove   that     the    statement  was    recorded     in<\/p>\n
  accordance with the provisions of Section   164 of the   Cr.P.C<\/p>\n
  and Section 28 of the Evidence Act.         For such a contention,<\/p>\n
  the statement recorded by PW1 under Section 67 of the NDPS<\/p>\n
  Act  shall be considered as  a confession  statement  recorded<\/p>\n
  under   Section   24     of   the   Evidence   Act   and   Section   164   of<\/p>\n
  Cr.P.C.    The contention  of the learned counsel is that Ext.P5<\/p>\n
  (Ext.P21)  statement was given  by  the appellant when he was<\/p>\n
  under   the   custody   of     PW1   and   other     Customs   Officials.<\/p>\n
  Hence, it has to be considered as a confession statement  given<\/p>\n
  by   an   accused   as   contemplated   under   Section   24   of   the<\/p>\n
  Evidence   Act   while   he   is   in     custody.       In   this   context,       the<\/p>\n
  specific  case of the   prosecution  is     that after  questioning   the<\/p>\n
  appellant     and  the    2nd  accused,       PW1   had     recorded   Ext.P5<\/p>\n
  statement     of   the   appellant   at   about   9.15   on   27.3.1998<\/p>\n
  whereas     Ext.P8   arrest   memo   would   show   that   the   appellant<\/p>\n
  and the 2nd  accused were   arrested   only after 11.30.     Hence,<\/p>\n
CRL.A.NO.1270\/2003                     15<\/span><\/p>\n
  this Court is not inclined to accept that  Ext.P21  be  termed or<\/p>\n
  to   be   considered   as   a   confession   statement   given   by   an<\/p>\n
  accused   while   he   was   under   custody   or   after   arrest.     In   the<\/p>\n
  above   circumstances,   the     confession   statement   made   by   an<\/p>\n
  accused and  the statement recorded by an  Officer authorised<\/p>\n
  under   Section   67   of   the   NDPS   Act   is     different   and   distinct<\/p>\n
  from  a statement  recorded under Section 24 of the  Evidence<\/p>\n
  Act and   under Section 164 of   the Cr.P.C.         That apart,   the<\/p>\n
  legislative   intention     of   the   Parliament   while     enacting<\/p>\n
  Sections   53   and     67   of     NDPS   Act   is   very   clear     that   the<\/p>\n
  statement     to   be     recorded   by   an   officer   empowered   under<\/p>\n
  Section   42   of   the   NDPS   Act   may   include   a   confession<\/p>\n
  statement by an accused   but it cannot be taken as a portion<\/p>\n
  of the  confession statement.    In this context,     the judgment<\/p>\n
  of   the   Apex   Court   reported   in    Nathu   v.   State   of   Uttar<\/p>\n
  Pradesh  (AIR<\/a> 1956   SC 56)     is   relevant   in which the Apex<\/p>\n
  Court  had considered Section 28 of the Evidence Act and held<\/p>\n
  that       the question of confession statement   voluntarily given<\/p>\n
  or     on   threat   or   any   promise   or   any   inducement   unless   and<\/p>\n
  until   it   is   proved   that   Ext.P21   is   a   confession   statement<\/p>\n
  recorded   by   an   investigating   officer   and       the   question   of<\/p>\n
CRL.A.NO.1270\/2003                       16<\/span><\/p>\n
  clearing of any threat or  an inducement or   promise does not<\/p>\n
  arise   as   this   Court   had   already   found   that   the   statement<\/p>\n
  recored under Section 67 of the NDPS Act by PW1 cannot be<\/p>\n
  termed as a confession.   Hence the contention of the learned<\/p>\n
  counsel on  Ext.P21 cannot be  acted  on  without  clearing any<\/p>\n
  threat   or   promise     alleged   to   have   been   given   by   PW1   and<\/p>\n
  other customs officials.   From the above discussion, this Court<\/p>\n
  is   of   the   view   that   the     contention   of   the   learned   counsel   on<\/p>\n
  this   aspect   is   not   tenable.     Hence,   the   trial   court   found     the<\/p>\n
  appellant guilty of the offence  and imposed punishments.<\/p>\n
         Considering     the     nature     and   gravity   of   the   offence<\/p>\n
  committed   by   the   appellant,     this   Court   is     not   inclined     to<\/p>\n
  interfere   with the   sentences   awarded against the appellant.<\/p>\n
  Accordingly, the appeal fails and it is dismissed.<\/p>\n
                                                   K. THANKAPPAN, JUDGE.\n<\/p>\n
  cl<\/p>\n
CRL.A.NO.1270\/2003    17<\/span><\/p>\n
                            K. THANKAPPAN, J.\n<\/p>\n
                            CRL.A.NO.1270 OF 2003<\/p>\n
                            JUDGMENT<\/p>\n
                            11th January, 2007.\n<\/p>\n
\nCRL.A.NO.1270\/2003    18<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Joseph Micheal Rajamani Fernando vs State Of Kerala on 11 January, 2007 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL A No. 1270 of 2003(A) 1. JOSEPH MICHEAL RAJAMANI FERNANDO, … Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY A … Respondent For Petitioner :ADV.LIJU V STEPHEN(STATE BRIEF) For Respondent :PUBLIC […]<\/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-19723","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nJoseph Micheal Rajamani Fernando vs State Of Kerala on 11 January, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/joseph-micheal-rajamani-fernando-vs-state-of-kerala-on-11-january-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Joseph Micheal Rajamani Fernando vs State Of Kerala on 11 January, 2007 - 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