Madras High Court
Mohamed Ali vs The Intelligence Officer on 21 December, 2024
Author: N.Seshasayee
Bench: N.Seshasayee
Criminal Appeal Nos.296, 63, 85 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 08.11.2024
Pronounced on : 21.12.2024
CORAM : JUSTICE N.SESHASAYEE
Criminal Appeal Nos.296, 63 and 85 of 2020
and Crl.M.P. Nos.19212/2023 and 4625, 1259 & 1691 of 2020
1.Mohamed Ali .... Appellant in Crl.A.No.296 of 2020 / Accused-1
2.Noorul Ameen .... Appellant in Crl.A.No.63 of 2020 / Accused-2
3.Imrankhan .... Appellant in Crl.A.No.85 of 2020 / Accused-3
Vs
The Intelligence Officer
Directorate of the Revenue Intelligence
Chennai Zonal Unit
27, G.N.Road
T.Nagar, Chennai.
(F.No.DRI/CZU/VIII/48/ENQ-1/INT-25/2016) .... Respondent in all cases /
Complainant
Prayer in Crl.A.No.296 of 2020 : Criminal Appeal filed under Section 374(2) of
Cr.P.C., praying to call for the records relating to judgment in C.C.No.73 of 2016
dated 19.12.2019 on the file of the Special Judge, II Additional Special Court for
Exclusive Trial of cases under NDPS Act, Chennai and set aside the same and
acquit the appellant from all charges framed against him.
1/20
https://www.mhc.tn.gov.in/judis
Criminal Appeal Nos.296, 63, 85 of 2020
Prayer in Crl.A.No.63 of 2020 : Criminal Appeal filed under Section 374 of
Cr.P.C., praying to set aside the conviction of the appellant in C.C.No.73/2016
dated 19.12.2019 by the learned Special Judge, II Additional Special Court for
Exclusive Trial of cases under NDPS Act, Chennai by allowing this appeal.
Prayer in Crl.A.No.85 of 2020 : Criminal Appeal filed under Section 374 of
Cr.P.C., praying to set aside the conviction and sentence rendered by the learned
II Additional Special Judge for NDPS Act at Chennai dated 19.12.2019 in
C.C.No.73/2016 in DRI/CZU/VIII/48/ENQ-1/INT-25/2016, convicting the
appellant under Section 8(c) r/w. 29 of NDPS Act, and acquit the accused.
For Appellant : Mr.R.Karunakaran
(in Crl.A.296/2020)
For Appellant : Mr.R.C.Paul Kanagaraj
(in Crl.A.63/2020)
For Appellant : Mr.B.Kumar, Senior Counsel
(in Crl.A.85/2022) for Mr.T.S.Sasi Kumar
For Respondent : Mr.N.P.Kumar
(in all cases) Special Public Prosecutor (NDPS)
2/20
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Criminal Appeal Nos.296, 63, 85 of 2020
COMMON JUDGMENT
This batch of appeals are preferred by all the three accused persons who were convicted by the Special Judge, II Additional Special Court for Exclusive Trial of cases under NDPS Act, Chennai in C.C. No.73/2016. A1 and A2 were convicted for offences under Section 8(c) r/w 22(c), 23(c) and 28 and Sec.8(c) r/w. 29 of the NDPS Act and were sentenced to undergo 10 years rigorous imprisonment on three counts and were slapped with a fine of Rs.3,00,000/- each and in default to undergo rigorous imprisonment for one year (3 counts) and A3 is found guilty of the offence under Section 8(c) r/w. 29 of the NDPS Act and he is found not guilty of 8(c) r/w 29, 22(c), 23(c) and 28 of the NDPS Act and was sentenced to undergo 10 years rigorous imprisonment on three counts and were slapped with a fine of Rs.1,00,000/- and in default to undergo rigorous imprisonment for one year. The details of the appeal are as below:
Sl. No. Rank of the Appeal Number Accused 1 A1 Crl.A. No.296 of 2020 2 A2 Crl.A. No.63 of 2020 3 A3 Crl.A. No.85 of 2020 3/20 https://www.mhc.tn.gov.in/judis Criminal Appeal Nos.296, 63, 85 of 2020
2. The case of the prosecution runs as below:
a) On 21.06.2016, A1 and A2 have checked in their baggage before boarding their flight in Malaysian Airlines MH181 from Chennai to Kuala Lumpur. The checked-in baggages were to be passed from the check-in counter through three levels of conveyor belt. The entry point to the check-in baggage is level-1 and the last point is level-3 and the luggage passes through all the three levels and were loaded in the flight.
b) The sequence of events unfolds as follows: on 21.06.2016, the baggages which were checked in the names of A1 and A2 were already loaded in the plane.
c) While so, PW1, a Customs Official attached to the Directorate of Revenue Intelligence got a tip-off through Ext.P1 information that certain contraband was being smuggled through the said flight by A1 to A3. Wasting no time PW1 along with his team of officials would now intercept A1 and A2 after these accused persons had crossed the immigration counter but before they boarded the flight. He would then take them to the Air Intelligence Unit (AIU) room. He also required the air liner to unload the checked-in luggages of A1 and A2. They were made available to the 4/20 https://www.mhc.tn.gov.in/judis Criminal Appeal Nos.296, 63, 85 of 2020 investigating team at that AIU room. PW1 had also made available a certain Baskar, who either is a shopkeeper or runs a shop inside the airport as independent witness.
d) P.W.1 would then search the checked-in luggage of A1 and A2 in the presence of PW2 and PW3. On search, the search-team did not find any contraband in the luggage of A1. However, in the luggage of A2, PW1 found 93 packets of the two different psychotropic substance manufactured under the three brand names. The details are as below:
Brand Name Number Content
Zolfresh 25260 Psychotropic substance - Zolpidem
Warnax 46280 Alprazolam
Trika 1500 Alprazolam
e) These contraband was seized by P.W.1 under Ext.P2, seizure mahazar in the presence of PW3 and one Baskar. PW1 also proceeded to record the statements of both A1 and A2 under Sec. 67 of the NDPS Act, which came to be marked as Exts.P36 and P46 respectively.
f) Thereafter, on 16.08.2016, the officials of DRI arrested A3 and on a search PW4 conducted a search in the premises of A3. The search yielded nothing for the prosecution. However, PW4 obtained the statement from A3 under 5/20 https://www.mhc.tn.gov.in/judis Criminal Appeal Nos.296, 63, 85 of 2020 Sec. 67 of the Act and that came to be marked as Ext.P41.
g) The psychotropic-substance seized were sent for forensic chemical analysis. PW6 examined the same and came out with her Ext.P49 report. In terms of the report, the substance recovered by PW1 from the baggage of A2 is found to contain the prohibited psychotropic substance, which falls under entry 238 and 178 of the NDPS Act.
h) PW9 is the investigating officer and she completed the investigation and laid her final report against all the three accused persons.
i) Taking cognizance of the final report, Special Court for NDPS cases, framed separate charges against all the three accused persons for the offences under Sections as outlined in the earlier paragraph.
3. During trial, the prosecution examined PW1 to PW11 and marked Exts.P1 to P64 and MOs.1 to MO.5. For the defence, one witness was examined as DW1 and produced Ext.D1. Apart from the material evidence which have been referred to already, Ext.P56 carries some importance. It is a call data record of the cellphone calls between PW8, Airport Security Officer and A3. 6/20 https://www.mhc.tn.gov.in/judis Criminal Appeal Nos.296, 63, 85 of 2020
4. On appreciating the evidence before it, the trial court found that all the three accused persons are guilty of the offence they were charged with and sentenced them as stated in the opening paragraph of this judgment. The line of reasoning of the trial court is that:
a) All the three accused persons have tendered their confession statement (Exts.P36, 41 and 460 under Section 67 of the NDPS Act). Therefore, there is a reverse burden cast on them and none of the accused persons were able to offer a rebuttal evidence convincing enough to disprove what these statements suggested.
b) So far as A3 is concerned, notwithstanding the fact that he was not a passenger on that date on which PW1 had seized the contraband. Besides his statement under Section 67 of the NDPS Act, PW1 had also frantically tred to reach PW8 as could be seen from Ext.P56, details of call data which was spoken to by PW10 & PW11 officials of the service provider, This judgement of the trial court is now challenged in this batch of appeals.
Arguments:
5. Heard Mr.Karunakaran, for A1, Mr.R.C.Paul Kanagaraj for A2 and 7/20 https://www.mhc.tn.gov.in/judis Criminal Appeal Nos.296, 63, 85 of 2020 Mr.B.Kumar. learned senior counsel for A3 and also Mr.N.P.Kumar, Special Public Prosecutor for prosecution.
6. Mr.B.Kumar made the following submissions and the large part thereof was also echoed in the submissions of the learned counsel for A1. It is as follows:
a) So far as the two pieces of the evidence which the trial court had relied on for entering its verdict of guilt against these two accused persons is its on Exts.P36 and P46, both statements recorded by PW1 under Section 67 of the Act. However, a majority view of a three judges bench of the Hon'ble Supreme Court in Tofan Singh Vs State [(2021) 4 SCC 1)] has held that an official of the DRI while functioning to enforce the NDPS Act, is a police official, and therefore, any confession statement made before them will not pass scrutiny under Section 25 of the Indian Evidence Act, 1872. This judgement of Tofan Singh's decided by a majority of 2:1, was approved in a subsequent case in Balwinder Singh and Another Vs The Narcotics Control Bureau [(2023 SCC Online SC 1213)] where a three Judges Bench has unanimously upheld the majority view in Tofan Singh's case. 8/20
https://www.mhc.tn.gov.in/judis Criminal Appeal Nos.296, 63, 85 of 2020 Therefore, neither Ext.P36 nor Ext.P46 is admissible in evidence, and therefore, no conviction can be handed over based on these statements alone.
b) Turning to A3, on facts, even though the prosecution had examined PW10 and PW11 and also marked Exts.P56 call data record, yet these documents were not backed by a certificate of the service provider as required under Section 65-B of the Evidence Act. Reliance was placed Panditrao Khotkar Vs Kailash Kushanrao Gorantyal [(2020) 7 SCC
1)], followed in Sundar @ Sundarrajan v. State by Inspector of Police [(2023 SCC Online SC 310)].
7. Arguing for A2, Mr.R.C.Paul Kanagaraj, made the following submissions:
a) After bringing both A1 and A2 to the AIU room in the airport, PW1, began his interrogation of both A1 and A2. Even though both they did not admit that they were transporting the contraband, eventually they gave up when they were enquired persistently. And Ext. P2 further records that during this interrogation, A1 had stated that he was carrying two check-in luggages and one hand luggage whereas A2 said 9/20 https://www.mhc.tn.gov.in/judis Criminal Appeal Nos.296, 63, 85 of 2020 he was carrying two hand luggages and the one luggage which was checked in, which A2 claims as belonging to A1, and that he had checked-in the same as a favour to A1, since A1 had already checked-in two luggages in his name, he could not check-in one more luggage in an international flight, and hence he requested A2 to do him a favour since A2 did not carry any check-in luggage.
b) It was thereafter all the checked-in luggage of both A1 and A2 were opened in the presence of PW1 and Baskar, and this was during this search, PW1 found psychotropic substance in the bag checked-in in the name of A2. In essence, the baggage belonged to A1 and A2 was only an innocent carrier, and since A2 did not possess or attempt to transport the psychotropic substance in question consciously then he may not be mulct with criminal liability. Indeed, he himself makes a similar statement in Ext.P46 statement recorded under Section 67. The prosecution case thus proceeds on the basis that the baggage checked in in the name of A2 belonged to A1.
c) A2 has made a further statement that when he enquired A1 as to the content of the baggage, the latter had told him that it carried certain 10/20 https://www.mhc.tn.gov.in/judis Criminal Appeal Nos.296, 63, 85 of 2020 tablets for certain common illness. Indeed, even A2 was carrying some tablets (not 'drugs') in his hand luggage. This apart, since these tablets carried a brand name, A2 possibly could not know that the contents of the baggage in essence was a psychotropic substance and the above version of A2 was spoken to by PW1 to PW4, PW7 and PW8. Even the investigating agency initially suspected of P.W.8's involvement in the offence.
d) Based on Ext.P1 tip off, P.W.1 intercepted and collected the checked-in luggage of A1 and A2. When the luggage which was checked-in in the name of A2 was opened, it contained 93 packets all wrapped in newspaper which later found to contain Psychotropic substances in tablet form. However, in his earlier statement recorded by P.W.2 vide Ext.P2, he had made a categorical statement that he was only checked-
in the luggage which he was entrusted with by A1. Where any statement is recorded with the officials administering NDPS Act, at the time of seizure which is incriminatory in character will be inadmissible vide ratio in Tofan Singh vs. State [(2021) 4 SCC 1)], that portion of the statement which is not incriminatory but explanatory aiding the 11/20 https://www.mhc.tn.gov.in/judis Criminal Appeal Nos.296, 63, 85 of 2020 defence then the defence can rely on it. Inasmuch as this is the earliest statement made by A2, which he does not disown not because it may be considered as exculpatory, but because it explains what happened at the earliest point of time. Hence, he is entitled to view with greater credibility.
e) The baggage in question contained only 93 packets and there is no case for the prosecution that the said baggage also contained the personal belongings of A2 to connect the baggage to A2.
f) The significant factor which is relevant to ascertain whether the baggage in question belonged to A1 or A2, is to ascertain who among them had the keys to the baggage becomes relevant. After all, P.W.1 and his team had opened the said baggage containing the contraband. Here, Ext.P2 seizure mahazar is silent as to who provided the key to the baggage, but merely says when the baggage was opened and 93 packets were found.
g) Even P.W.1 in his testimony does not explain as to who had the keys of the black bag from which the contraband was seized. Even though, this bag was seized under Ext.P2, during trial it was not produced. 12/20 https://www.mhc.tn.gov.in/judis Criminal Appeal Nos.296, 63, 85 of 2020 Therefore, on a critical point, the prosecution case leaves a space to doubt its quality to fix criminal liability on A2. Reliance was placed on the authority in Abdul Rashid Ibrahim Mansuri V. State of Gujarat [(2000) 2 SCC 513)].
h) This apart, both P.W.2 (Officer who arrested him) and P.W.5, who actually recorded Ext.P46 statement of A2 have testified that to the effect that A2 might not have been involved in the crime.
7. Arguing for A1, Mr.R.Karunakaran, learned counsel submitted as below:
a) The baggage apparently was checked in by A2 and it is he who is liable for the offence and he is attempting to deflect his criminal liability on A1.
b) So far as A1 is concerned, except Ext.P31 statement recorded by P.W.1 under Section 67 of NDPS Act and a self serving statement of the Investigating Agency in Ext.P2, seizure mahazar, there is nothing to fasten criminal liability on A1. Indeed, A1 had retracted Ext.P31, statement.
c) This apart, A1 was detained by P.W.1 immediately after the seizure on 22.06.2016 and he was remanded to judicial custody on the same date at 13/20 https://www.mhc.tn.gov.in/judis Criminal Appeal Nos.296, 63, 85 of 2020 07.30 p.m., and during the time when A1 was in the custody of P.W.1, he was physically ill treated. This is borne out by the evidence of D.W.1, the prison doctor and Ext.D1, the medical record prepared by D.W.1. This implies that Ext.P.36 statement was obtained by torturing A1.
8. The learned Prosecutor made the following submissions:
a) It is not in dispute that P.W.1 received an intimation Ext.P1. While A3 was not physically present, he indeed was the mastermind for whom A1 and A2 were working for smuggling contraband seized, from India to Malaysia. True to intimation so received P.W.1 and his team intercepted a black bag which was checked-in in the name of A2 and it did contain psychotropic drugs. It may be that in a subsequent search made nothing was seized from A3, but that by itself will not be adequate to doubt his involvement.
b) Turning to statements of A1 and A2 recorded by P.W.1, as disclosed in Ext.P2, they are incriminatory in character but they were recorded before their arrest which implied that those statements cannot be affected by 14/20 https://www.mhc.tn.gov.in/judis Criminal Appeal Nos.296, 63, 85 of 2020 Section 25 of the Indian Evidence Act. A1 has indeed admitted that the consignment of psychotropic substances belonged to him and since this statement was made before his arrest and since this statement is not hit by Section 25 of Evidence Act, necessarily he must be found guilty, which the trial Court has found rightly.
c) Turning to A2, admittedly the baggage was checked-in in his name, unlike, the facts of the case in Abdul Rashid Ibrahim Mansuri Vs State of Gujarat [(2000) 2 SCC 513)], A2 does not claim himself to be involved in some kind of courier activities, therefore he cannot escape merely through his exculpatory statement in Ext.P2.
Discussion & Decision:
9. The reasoning of the trial court having been founded fundamentally on the admissibility of the statements of the accused persons recorded under Sec.67 of the NDPS Act, the ratio of the judgements of Hon'ble Supreme Court in Tofan Singh case [(2021) 4 SCC 1)] (which was delivered after the trial court judgement), followed by Balwinder Singh case [(2023 SCC Online SC 1213)] to the effect that such statements of the accused made even to a DRI official will be 15/20 https://www.mhc.tn.gov.in/judis Criminal Appeal Nos.296, 63, 85 of 2020 rendered inadmissible under Sec.25 of the Act, the core basis of judgment the trial court is lost. Its immediate effect is that A3 cannot be convicted for the charges framed against him since (i) he was not even physically present at the SOC on the date when the prosecution claims to have busted the crime at the airport; (ii) the search of his premises yielded nothing for the prosecution; and
(iii) except the Sec.67 statement there is no other evidence to connect him to the crime.
10. So far as A1 is concerned, unlike A3, he was physically present, as he was travelling in the same plane along with A2 to Malaysia. P.W.1 did not recover anything from the check-in luggage of A1, but he was convicted on the solitary foundation of Sec.67 Statement. In that sense his case is identical to that of A3.
11. However, he faces one challenge from A2. The contraband seized by P.W.2 was recovered exclusively from the baggage checked-in the the name of A2. He in his statement would disown it and would allege that it belonged to A1, and that he was merely was doing a favour on his request. The issue now would be whether the uncorroborated statement of A2 is adequate to fasten liability of A1? 16/20
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12. That the baggage from which the contraband was recovered belonged to A1 was A2's exculpatory statement, and unless there are other material which can either independently or in combination with others establishes the same, this Court may not act on it. Necessarily the plea of A2 has to fail, and A1 will now join A3.
13. Turning to A2, his route to liberty is tightly closed since the entire recovery of the psychotropic substances are made only from the baggage which was checked in his name. He made a valiant effort to distant himself from the crime when he raised a contention that neither Ext.P2 nor P.W.1 could expoain who held the key of the said baggage and how it was opened. It is true. But the baggage admittedly checked in his name. His obligation to rebut the evidence against him cannot be ignored. Here, except attempting to shift the blame on A1, he plainly has no defence. Therefore, A2 may not share company with A1 and A3 for the reminder of the prison-term.
14. To conclude, Crl.A.No.296 of 2020 and Crl.A.No.85 of 2020 are allowed and the judgement of the trial court in Spl C.C.No.73 of 2016, dated 19.12.2019, on 17/20 https://www.mhc.tn.gov.in/judis Criminal Appeal Nos.296, 63, 85 of 2020 the file of the Special Judge, II Additional Special Court for Exclusive Trial of cases under NDPS Act, Chennai convicting and sentencing A1 and A3 is set aside and they are set free. So far as Crl.A.No.63 of 2020 is concerned, it is dismissed and the conviction of A2 and the sentence imposed on him by the trial court is confirmed. Consequently, connected miscellaneous petitions are closd.
21.12.2024 Index : Yes / No Speaking order / Non-speaking order Neutral Citation : Yes / No Asr/Anu/ds 18/20 https://www.mhc.tn.gov.in/judis Criminal Appeal Nos.296, 63, 85 of 2020 To:
1.The Special Judge, II Additional Special Court for Exclusive Trial of cases under NDPS Act Chennai.
2. The Public Prosecutor High Court, Madras.
19/20
https://www.mhc.tn.gov.in/judis Criminal Appeal Nos.296, 63, 85 of 2020 N.SESHASAYEE.J., ds Pre-delivery Judgment in Criminal Appeal Nos.296, 63 and 85 of 2020 21.12.2024 20/20 https://www.mhc.tn.gov.in/judis