Madras High Court
Shaukath Ali @ vs State Represented By on 9 March, 2018
Author: T.Krishnavalli
Bench: T.Krishnavalli
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reservation 09.09.2021
Date of Judgment 24.09.2021
CORAM
THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI
Crl.A.(MD)Nos.143, 174, 219 of 2018 & 309 of 2020
and
Crl.MP(MD)Nos.891, 6311 and 5114 of 2020
Shaukath Ali @
Malaysia Ali : Appellant in Crl.A(MD)No.143 of 2018/A4
Masoud Mosavi : Appellant in Crl.A(MD)No.174 of 2018/A1
Nausad Attar : Appellant in Crl.A(MD)No.219 of 2018/A5
Kalliammal : Appellant in Crl.A(MD)No.309 of 2020/A3
Vs.
State represented by
The Intelligence Officer,
Narcotics Control Bureau,
Madurai Sub-Zone,
Madurai.
NCB F.No.48/1/01/2013-NCB/MDU : Respondent/Complainant
(In all cases)
Common Prayer: Criminal Appeals filed under section
374 of the Criminal Procedure Code, against the judgment of the
Additional District & Sessions Judge/Presiding Officer, Special
Court for EC and NDPS Act cases, Pudukkottai, passed in C.C.No.
44 of 2013, dated 09.03.2018.
For Appellants : Mr.M.Jagadeesh Pandian
(in Crl.A(MD)No.143 of 2018)
: Mr.Anand Grover
Senior Counsel
Assisted by M/s.Tripti Tandon
for Mr.M.S.Charles
(in Crl.A(MD)No.174 of 2018)
https://www.mhc.tn.gov.in/judis/
2
: Mr.D.S.Haroon Rasheed
(in Crl.A(MD)No.219 of 2018)
: Mr.R.Alagumani
(in Crl.A(MD)No.309 of 2020)
For Respondent : Mr.C.Arul Vadivel @ Sekar
Special Public Prosecutor
for NCB Cases.
COMMON JUDGMENT
These Criminal Appeals are directed against the judgment of the Additional District & Sessions Judge/Presiding Officer, Special Court for EC and NDPS Act cases, Pudukkottai, passed in C.C.No.44 of 2013, dated 09.03.2018.
2.According to the prosecution, on 22.03.2013 based on the reliable information, the Intelligence Officer attached to the respondent along with his team, conducted inspection in House No. 4/75C, New No.791, Vairavapuram, Sirukoodalpatti Tirumayam, Pudukottai District and they found A1 to A3 were in possession of 5.77 Kgs of Methamphetamine and same was seized and A1 to A3 were arrested and their statements were recorded under section 67 of the NDPS Act and based on the statement of A1 to A3, Intelligence Officer, NCB, Mumbai (PW9) conducted inspection in https://www.mhc.tn.gov.in/judis/ 3 Flat No.302, R.R Manzil, Meeran Goan, Thane and they found A4/ Shaukath Ali @ Malaysia Ali and A5/Naushad Attar and on enquiry, A4 and A5 admitted that they are aware of the facts and involved in seizure of 5.77 Kgs of Methamphetamine.
3.After completion of investigation, the respondent filed complaint before the trial court for the alleged offences under section 8(c) r/w 22(c), 25, 28, 29 and 30 and Section 9(A) r/w 25A, 21, 27A of the NDPS Act, 1985 as amended along with the RCS Order, 1993 and are punishable under sections 22, 25, 25A, 27A, 28, 29 and 30 of the NDPS Act. The trial Judge took cognizance in CC No.44 of 2013 for the offence under section 8(c) r/w section 22(c), 25, 28, 29 and 30 and section 9A r/w Section 21, 25A, 27A of the NDPS Act.
4.After proper appreciation of the entire materials available on record, both oral and documentary, the trial court found A1 to A5 guilty for the offence under section 8(c) r/w 22(c) r/w section 29 of NDPS Act, 1985 and sentenced to undergo RI for 20 years each and to pay a fine of Rs.1,00,000/- each and in default, to undergo RI for 3 years each; A1 to A3 convicted under section https://www.mhc.tn.gov.in/judis/ 4 8(c) r/w 22(c) of NDPS Act, 1985 and sentenced to undergo RI for 20 years each and convicted A3 for the offence under section 8(c) r/w 22(c) r/w 25 of NDPS Act, 1985 and sentenced to undergo RI for 10 years and to pay a fine of Rs.1,00,000/-, in default to undergo RI for three years and convicted A4 for the offence under section 9(A) r/w section 25-A of NDPS Act and sentenced to undergo RI for 10 years and to pay a fine of Rs.1,00,000/-, in default to undergo RI for three years and convicted A1, A2 and A4, A5 for the offence under section 8(c) r/w 22(c) r/w 28 of NDPS Act and sentenced to undergo RI for 10 years each and pay a fine of Rs.1,00,000/- each, in default to undergo three years each and ordered the sentences to run concurrently. Aggrieved by the judgment of the trial court, the appellants are before this court.
5.Heard both sides and perused the materials available on record.
6.The first contention raised on the side of the appellants is that the search was conducted after sunset and hence, the second proviso to section 42(1) of the NDPS Act has not been complied with and PW8 had deposed that there was growing darkness when the officers tried to nab one Veeramani the https://www.mhc.tn.gov.in/judis/ 5 absconding accused, who was ran away and the evidence of PW6 is totally contradictory and therefore, no reliance can be placed on it and further, PW4 never speaks about sunset or sunrise in his entire evidence and under section 42 of the NDPS Act, the empowered Officer cannot enter and search a private premises between sunset and sunrise without a warrant or in the absence of warrant, without recording his grounds of belief and therefore, what is relevant is the time when the Officer acting under section 42 of the Act enters into and searches the building and not the time when he starts for the search operation and further, the time of entry alone is not sufficient and the timing of search also to be taken into account and if the search is during sunset, the provisions of second proviso of section 42(1) and 42(2) of NDPS Act have to be complied with. For that, the learned counsel appearing for the appellants submitted the decision reported in 2003(8)SCC 449 (M.Prabhulal Vs. Assisant Director, Directorate of Revenue Intelligence).
7.On the other hand, the learned Special Public Prosecutor appearing for the respondent submitted that the search did not take place after sunset and the expression 'darkness' used by PW1 is not the same as sunset and it can be darken even during https://www.mhc.tn.gov.in/judis/ 6 sunrise and with the aid of Google application, it is sought to be shown that on the date of incident, the time of sunset in Sivagangai District was later than 5.30 pm and PW1 to PW3, PW6, PW8 and DW4 deposed that they reached the premises for the search before sunset and since the officers reached the premises for the search at at 5.30 pm and started the search immediately and hence, the ingredients under section section 42 of the NDPS Act is complied with. Further, the learned Special Public Prosecutor submitted that for argument sake, even the search took place after sunset, if the Gazetted Officer is a member of the searching party and he is exercising his duty under section 41 of the NDPS Act, it will not affect the case of the prosecution. But in this case, the search took place prior to sunset and hence, the conditions under section 42 of NDPS Act has been complied with. For that, the learned Special Public Prosecutor submitted the following citations:-
(1)(2004)5 SCC 188 (State of Haryana Vs. Jarnail Singh and others);
(2)(2016)11 SCC 368 (Sekhar Suman Verna Vs. Superintendent of NCB and another);
(3)(2010)1 SCC 149 (Dalel Singh Vs. State of Haryana): and https://www.mhc.tn.gov.in/judis/ 7 (4)(2019)14 SCC 582 (Natha Singh Vs. State of Haryana).
8.In this case, PW1 to PW3, PW6, PW8 deposed that they reached the premises for search before sunset. It is mainly argued on the side of the appellants that PW1 to PW3, PW6 and PW8 deposed that after receipt of the information, they reached the place of incident at 17.30 hours and they alighted from their vehicle and at that time, one person ran away to the back of the house taken advantage of the growing darkness, when the officers tried to nab Veeramani the absconding accused, who fled away. On the contrary, on the side of the respondent, it is argued that there was sunset after 5.30 pm in Sivagangai District during the period of incident by way of producing the Google instrument.
9.Ex.P2 Magazar was carefully perused. On perusal of Ex.P2, it is stated as follows:-
“The officers reached the premises at 17.30 hours. After they alighted from the Car, a man matching the description of Veeramani, “started running towards the back of the house. The NCB officers tried to follow him and stop him from running https://www.mhc.tn.gov.in/judis/ 8 away but he managed to evade them by taking advantage of the growing darkness and bushy land. Thereafter, the officers approached the front door of the house, knocked on it, which was opened by a middle-aged lady, who disclosed her name as Kaliammal...”
10.PW1 to PW3, PW6, PW8 categorically stated that taking advantage of the growing darkness due to the existence of bushy land, one accused Veeramani fled away. On careful perusal of the above evidence, it reveals that when PW8 and his team tried to catch the accused Veeramani, he fled away since nearby the place of occurrence, there was bushy land. Hence, due to the bushy land, there was appearance of darkness. Further, PW1 to PW3, PW6, PW8 deposed that PW8 started search at 5.30 pm.
11.Further, in order to disprove the case, on the side of the accused, DW4 was examined. DW4 during his cross examination stated that the search was started on 22.03.2013 at 5.30 pm. Hence, from the evidence of PW1 to PW3, PW6 and PW8 and from Ex.P2, it reveals that the search was started at 5.30 pm. https://www.mhc.tn.gov.in/judis/ 9 On the side of the respondent, it is proved that the search was started at 5.30 pm. But to disprove it, no contra evidence was let in on the side of the appellants to the effect that the search was started after 5.30 pm. Further, even though DW4 was examined on the side of the appellants/accused, he categorically stated that PW8 started the search at 5.30 pm.
12.At this juncture, it is necessary to refer the cross examination of PW1, PW3, PW6 and DW4 which would run thus:-
(i)PW1 during his cross examination stated as follows:-
“I have started the operation before sunset. We started the entire procedure from 17.30 hours on 22.03.2013 and finished till the arrest of Kaliammal on 24.03.2013 at 9.00 am.
(ii)PW3 during his evidence sated as follows:-
“rk;gt ,lk; bry;Yk;
nghJ ,Ul;ltpy;iy. R{hpad;
m];jkpf;Fk; Kd;ng brd;W tpl;nld;.” https://www.mhc.tn.gov.in/judis/ 10
(iii)PW6 during his evidence sated as follows:-
“mg;bghGJ khiy 5.30
kzp ,Uf;Fk; fhspak;khs; vd;gth; me;j
tPl;L thrg;goapy; epd;W ,Ue;jhh.; rw;W
js;sp tPukzp (v) rpth
vd;gtUk; ,Ue;jhh;.”
khoapy; fjit jl;oa neuk;
R{hpa xsp ,Ue;jJ.”
(iv)DW4 during his evidence stated as follows:-
“,e;j nrhjid khiy 5.30 kzp Kjy; kWehs; fhiy 4.30 Kjy; 5 kzp tiu ele;jJ.”
13.Further, DW4 has not stated during his evidence that PW8 started the search after sunset. Further, the word “growing darkness” used by the witnesses cannot be equated with sunset and even during the daytime, there may be some darkness due to weather condition. Further, it is pertinent to note that PW8 is the Gazetted Officer and a member of the searching party. PW8 is empowered to authorise any officer subordinate to him, but superior in rank to a peon, sepoy, or a constable to arrest such a person or search a building conveyance or place whether by day or https://www.mhc.tn.gov.in/judis/ 11 night or himself arrest such a person or search a building conveyance or place. Generally the sunset starts after 5.30 pm. Further, PW8 is also a Gazetted Officer. Even after the sunset the search was taken, the ingredients under section 41 of the NDPS Act will be attracted. But in this case, it is proved that search was started at 5.30 pm. Hence, the ingredients under section 42 of the NDPS Act only attracted. But on careful perusal of the evidence of PW1 to PW3, PW6, PW8, DW4 and Ex.P2, it reveals that PW8 started search at 5.30 pm i.e., before sunset. Hence, it is held that there is no violation of section 42 of the NDPS Act and the conditions contemplated under section 42 of the NDPS Act was complied with. Therefore, the argument put forth on the side of the appellants stating that the conditions under section 42 of the NDPS Act was not complied with is not at all acceptable.
14.The second contention raised on the side of the appellants is that PW8 was not the immediate superior officer of PW1 for compliance of section 42 of the Act, since PW1 was posted as Intelligence Officer, NCB, Madurai, at the material time and his immediate superior was the Superintendent, NCB, Madurai, which as per the records, PW8 was not the Superintendent, NCB, Madurai https://www.mhc.tn.gov.in/judis/ 12 and in view of the above, it reveals that the immediate superior of PW1 to whom the information received and recorded on 22.03.2013 was required to be submitted under section 57 of the NDPS Act was PW7, but it was not done and hence, there was non-compliance of section 57 of the Act. But on the other hand, on the side of the respondent, it is submitted that PW8 deposed that on 22.03.2013, he was holding additional charge of NCB, Madurai South Zone and he was camping at Madurai during the relevant period of occurrence and PW7 was officially in charge of Madurai Zone, since PW7 was on leave, on 22.03.2013 he was in charge of Madurai and even there was not a suggestion made by the accused during trial that PW8 was not in charge of Madurai and he was not immediate superior officer and when no such plea was taken during trial, it cannot be raised at this stage and PW8 is the immediate superior officer at the relevant point of time and hence, there was no violation of section 57 of the NDPS Act.
15.PW1 deposed that after receipt of the information, it was reduced into writing and the same was submitted to PW8 at 3.25 pm. In this regard, Ex.P1 was carefully perused. In Ex.P1, PW8 endorsed the said information and it was specifically mentioned that he received the information when he was Camp at https://www.mhc.tn.gov.in/judis/ 13 Madurai. PW2 stated during his evidence that he went to the place of occurrence after receipt of the message from PW8 and on instruction given by PW8, he recorded the statement of Mohamood Zaffrany and then, he submitted the report to PW8 under section 57 of the NDPS Act. PW3 also stated during his evidence that only at the instruction of PW8, he accompanied with the team party headed by PW8. PW8 categorically stated during his evidence that on 22.03.2013, he was holding additional in charge of NCB, Madurai, South Zone and on this day, at around 15.25 hours, on information, note was put up before him and the information was to the effect that one Veeramani @ Siva resident of Konapet, Pudukkottai District along with two foreigners is engaged illicit production of Methamphetamine in a house at Vairavapuram, Sirukoodalpatti, the physical description of Veeramani was given and further the information also reveals that one Rafiddien @ Raffiq of Mannadi, Chennai had engaged the foreigners for this purpose and the information was put up by Syed Syharique Omar, who is PW1 and the Information Report has been already marked as Ex.P1 and he enclosed on the said information stating that a team may be constituted as discussed and he will be also accompanying the team.
https://www.mhc.tn.gov.in/judis/ 14
16.Further, PW8 during his cross examination stated as follows:-
“During the relevant period of
occurrence, I was camping at Madurai.
Mr.Santhanu was officially in-charge of
Madurai Zone since he was on leave I was in-
charge. Ex.P1 described. I Camped at
Madurai. I received the message at 15.25. I
received just put up information by the
office...
..I am aware that the particular team
was constituted. I was the superintendent of the team.”
17.On careful perusal of Ex.P1, it reveals that PW8 was camping at Madurai at the relevant point of time. Further, while cross examining PW8, there was no suggestion put to PW8 that at the relevant point of time, he was not camping at Madurai and he was not the Superintendent, NCB, Madurai and PW7 is the Superintendent, NCB, Madurai and PW7 was not on leave at the relevant period. Hence, this plea cannot be raised at this stage. From Ex.P1, it reveals that PW8 was camping at Madurai and the team party was headed by PW8. No steps were taken on the side of https://www.mhc.tn.gov.in/judis/ 15 the appellants/accused to prove that PW8 was not camping at Madurai during the relevant period and only PW7 is the Superintendent, NCB, Madurai during the relevant period and he was on duty. When PW7 was on duty, Ex.P1 will be submitted only before PW7 and not before PW8. From the evidence of PW1 to PW3, PW6 and PW8, it reveals that during the relevant period, PW8 was camping at Madurai and PW1 sent the information to PW8. Hence, the argument put forth on the side of the appellants/accused stating that PW8 is not superior officer of PW1 and PW7 is the immediate superior officer of PW1 is not at all acceptable.
18.The third contention raised on the side of the appellants/accused is that according to Mahazar (Ex.P2) and evidence of PW1, the preparation of Mahazar commenced after 5.30 pm, on 22.03.2013 and it was completed on 23.03.2013 at 7.00 am. Further, as per the evidence of PW3, Section 67 statement under NDPS Act was obtained from A3 and the same was completed only on 24.03.2013 at 8.15 am and thereafter, on 24.03.2013 only, A1 to A3 were taken before the Judicial Magistrate at Thiruppattur for remand at 3.55 pm. Whereas PW6, the independent witness relied by the prosecution has adduced https://www.mhc.tn.gov.in/judis/ 16 evidence before the court that everybody left the house of A3 at 7.00 am, on 23.03.2013 itself and handed over the key of the house to him and asked him to do surveillance and take care of the house is totally contrary and falsifies the entire case of the prosecution.
19.But on the side of the respondent, it is argued that the occurrence happened on 22.03.2013. PW6 was examined as witness on 10.06.2016 after 3 years and due to passage/lapse of time, the memories of the witness may fade away and PW6 may not be in a position to recollect the exact date and time and the documentary evidence namely the mahazar (Ex.P2) clearly reveals the search and seizure and besides the Seizing Officer, the mahazar was signed by PW8, A1, A2, PW6 and DW4 and it reaches the concerned court at the time of remand itself and in-fact, DW4 has clearly deposed the events of search and seizure and it is settled law that the documentary evidence will prevail over the oral evidence and minor discrepancies in the testimony of a witness will not affect the credibility of the evidence of the witnesses. For that, the learned Special Public Prosecutor appearing for the respondent relied the judgment reported in (2008)5 SCC 385 (Ram Kumar Vs. Central Bureau of Narcotics).
https://www.mhc.tn.gov.in/judis/ 17
20.Ex.P2 was carefully perused. Besides the Seizing Officer in Ex.P2, PW8, A1, A2 and DW4 signed and Ex.P2 reached the Court on the date of remand of the accused. Further, DW4 also spoke about the search and seizure. Hence, it is held that the seizure was properly prepared and there was no falsification in respect of Ex.P2 and there was no reason to disbelieve Ex.P2.
21.The 4th contention raised on the side of the appellants/accused is that even though the contraband was allegedly seized on 22.03.2013, the same was produced before the concerned Court on 10.04.2013 and there is an enormous delay of 19 days in producing the same before the Court and the contraband and the samples alleged seized in the above case will not hold in safe custody and no records were produced before the Court to show that the contraband/samples were taken from godown after the same was disposed on 25.03.2013 and there are more chances of tempering the contraband/samples and when more particularly the prosecution miserably failed to produce any material regarding the safe custody of the contraband and there are materials to show that contraband itself was tampering and hence, it is fatal to the prosecution.
https://www.mhc.tn.gov.in/judis/ 18
22.On the other hand, on the side of the respondent, it is argued that all the case properties including the samples were produced before court even at the time of remand itself and if the court returned the case properties with a remark to produce the properties with correct description and the omissions were rectified and reproduced before the court with correct description and there is not even a suggestion in the cross examination about the tampering of samples and no such plea was taken during the trial and no suggestion was put to the witness by defense that the case properties were not taken in the godown and further, there was no material to show the tempering of contraband samples and hence, it is not fatal to the prosecution.
23.In this case, the contraband with samples were produced before the District Munsif-cum-Judicial Magistrate, Tirupattur at 3.55 pm, on 24.03.2013, at the time of remanding the accused. As per the order of the learned Judicial Magistrate, the accused and the case properties were produced before the learned Special Judge for NDPS Act cases and the properties were produced before the learned Special Judge for NDPS Act cases at Pudukkottai at 9.00 pm on the same day. The learned Special Judge https://www.mhc.tn.gov.in/judis/ 19 returned the case properties and directed to produce the same on the working days. The next day I.e., on 25.03.2013, the case properties were produced before the Special Court. The Special Court returned the case description. The omissions were rectified and the corrected Annexure-III was produced before the court on 10.04.2013. It is pertinent to note that all the case properties were produced before the court even at the time of remand itself.
24.In this case, the Chemical Examiner was examined as PW5. PW5 deposed that his office on 16.04.2013 received 6 sealed light brown colour paper covers and Test Memo from the Intelligence Officer, NCB, Madurai Zone and all the seals on the sample covers found intact and were tallied with the facsimile of the seals given in the court's letter and Test Memo. Hence, from the evidence of PW5, it reveals that all the seals in the sample pockets were found intact and tallied with the facsimile of the seals given in the Court's Letter and Test Memo. Hence, it is held that there was no tampering in the contraband and samples. Hence, the argument put forth on the side of the learned counsel for the appellants stating that there was delay in sending the contraband. From the evidence of PW1 to PW3, PW6 and PW8, it reveals that https://www.mhc.tn.gov.in/judis/ 20 proper explanation was given for the delay in sending the samples to chemical analysis.
25.The 6th contention raised on the side of the appellants/ accused is that as per the prosecution case, the seized contraband in the above case is white crystallised substance, branded to be Methamphetamine. But PW1 during his cross examination stated that when the contraband was opened before the Special Court shockingly and surprisingly, it was found to be in “Brown Colour”. The change of colour of the contraband is very vital and the same was not explained by the prosecution and the prosecution miserably failed to prove that the contraband allegedly seized was only produced before the court and since the court found that the contraband, which was opened in the court was brown in colour, a second sample was sent for chemical examination and the Lab Report Ex.P84 dated 18.08.2014 given by CFSL, Hyderabad mentioned that Methamphetamine has been deducted in the contents of Exhibits marked as SP1 and SP2. The 2nd sample report is totally contrary to the 1st sample report given by Customs House Laboratory, which is marked as Ex.P56. In the 1st sample report, it was mentioned by the Chemical Examiner as each of the two https://www.mhc.tn.gov.in/judis/ 21 samples answers the tests for the presence of Methamphetamine Hydrochloride.” It is an admitted fact that Methamphetamine Hydrochloride is altogether different from Methamphetamine. PW11 the Senior Scientific Officer, who examined the 2nd sample sent by the court, in his evidence has categorically admitted that if any of the components of phenylephrine or methenamine group or dimethyl phenethylamine is not found in the alleged substance, then it cannot be Methamphetamine. PW10 the Chemical Examiner, who examined the 1st sample has given evidence that Phenylephrine or Dimethyl Phenethylamine is not found in the sample examined by him. Therefore, the 1st sample sent for chemical examination failed to contain any chemical ingredients of Methamphetamine. It can be very well concluded that the sample received by PW9 and PW10 are not the same substance and they differ from each other. The aforesaid circumstances clearly prove the case of the defence that the prosecution miserably failed in proving the seizure of alleged contraband from the accused in the above case.
26.But on the other hand, the learned Special Public Prosecutor argued that the seizure of Methamphetamine from the https://www.mhc.tn.gov.in/judis/ 22 possession of A1 and A2 has been clearly proved by the evidence of PW1 to PW3, PW6, PW8 and DW4 and the seizure mahazar Ex.P2 is an unshaken evidence to prove the seizure of the contraband. The contention of the appellants/accused about the change in colour of the samples and the discrepancy in weight are untenable. The contraband was seized on 22.03.2013. Admittedly, it is a chemical substance. At the time of seizure, the contraband was white in colour. MO1 was opened in the Court during trial on 24.08.2015 I.e after two years and five months. Since, it is a chemical substance, the while colour turned brown. Such colour change, nearly after two and half years will not disprove the case of the prosecution. Likewise, the minimal and ignorable variation in the weight of the 2nd sample sent for chemical analysis will not affect the prosecution case, when the seals are intact and further, PW10 and PW11 have deposed that the seals of the sample covers were found intact and tallied with the facsimile of the seals given by the Court and such plea of difference in the weight of the sample was rejected by the Hon'ble Supreme Court in Madan Lan and another Vs. State of H.P (2003)7 SCC 465 and further, the presence of Methamphetamine was also conferred in the chemical analysis reports given by the PW10 and PW11. The evidence of https://www.mhc.tn.gov.in/judis/ 23 PW5 and his chemical analysis report would clearly reveal that the samples tested by him are the raw materials used to prepare Methamphetamine and hence, the presence of Methamphetamine is clearly proved by the prosecution.
27.In this case, PW1 to PW3, PW6, PW8 and DW4 deposed that Methamphetamine was recovered from the possession of A1 and A2. Further, it was recovered by way of Ex.P2, seizure magazar. The contraband was seized on 22.03.2013 and at the time of seizure, the contraband was white in colour and it was opened in the trial court on 24.08.2015 I.e., after 2 years and 5 months. But the white colour turned brown. It is admitted fact that MO1 is a chemical substance. Further, PW1 and PW11 deposed that the seals of the sample cover found intact and tallied with facsimile of the sample given by the court.
28.At this juncture it is necessary to refer the decision reported in 2003(7) SCC 465 (Madan Lan and another Vs. State of H.P), wherein it has been held that the plea of difference in weight of the sample was rejected by the Hon'ble Supreme Court. On perusal of the chemical reports given by the PW10 and https://www.mhc.tn.gov.in/judis/ 24 PW11, the presence of Methamphetamine was confirmed. Though PW10 deposed that the sample answered for Methamphetamine Chloride and PW11 deposed “Methamphetamine detected”, in both their evidence, the presence of Methamphetamine was clearly spoken. Methamphetamine is a psychotropic substance listed in S.No.159 of the table of Narcotics Drugs and Psychotropic substance in S.O.1055(E), dated 19.10.2001. As per S.No.239 of the table, any mixture or preparation that of with or without any natural material, of any of the Narcotic or Psychotropic substance is also an offending drug under the Act. As per the amended notification, dated 18.11.2020, the entire mixture or any solution or anyone or more narcotic drugs of psychotropic substance of that particular drug in dosage form or isomers, esters, ethers and salts of the drugs including salts of esters, ethers and isomers has to be taken into account for the purpose of calculating the quantity of the offending drug. PW10 deposed that he confirmed the presence of Methamphetamine Hydrochloride in this samples. He also stated that Methamphetamine is clearly proved by the prosecution. Moreover the evidence of PW5 and his chemical analysis report Ex.P71 would clearly reveal that the samples tested by him are the raw materials/chemicals used to prepare Methamphetamine. On https://www.mhc.tn.gov.in/judis/ 25 perusal of the evidence of PW5 and the chemical analysis report Ex.P71, it reveals that the samples taken by him are the raw materials used to prepare Methamphetamine. Hence, the argument put forth on the side of the appellants/accused stating that the prosecution failed to prove the seizure of Methamphetamine is not at all acceptable.
29.The next contention put forth on the side of the appellants/accused is that as per the evidence of PW1 and Mahazar (Ex.P2), it is alleged that A1 and A2 jointly handed over one Jute Bag having two plastic pockets, which contained a crystalline substance purported to be Methamphetamine and during his chief examination, PW1 stated that on further questioning, they handed over a Jute Bag having two plastic packets containing crystalline substance and on further enquiry, both Masound and Mahmood handed over one ordinary Jute Carry all bags containing two transparent plastic sachets containing crystalline substance purported to be Methamphetamine. Whereas as per the evidence of PW6/VAO, who was procured as independent witness by the prosecution, in his chief examination has stated that the contraband was produced by A1 alone. Whereas as per the remand report, the https://www.mhc.tn.gov.in/judis/ 26 contraband was never recovered from the possession of A1 or A2 and the same was found on thorough search of the room. On perusal of Ex.P14, two Iranians opened the door allowed the team entry inside. A thorough search of the room resulted in the recovery of 5.77 kgs of crystalline substance believed to be Methamphetamine. The above contents of the mahazar was categorically admitted by PW1 himself in his cross examination. Further, it is the case of the prosecution that A1 and A2 were residing in the house of A3 and are manufacturing Methamphetamine. Whereas on the contrary not even a single personal belonging of A1 or A2 were seized or recovered from the house of A3, when 56 material objects were recovered by the prosecution from the place of occurrence and hence, the possession of contraband was not proved on the side of the prosecution.
30.On the other hand, the learned Special Public Prosecutor argued that in so far as the NDPS Act is concerned, section 18 has a reference to the concept of conscious possession. The legislature while enacting the said Law was absolutely aware of the aid element and that the “word possession” refers to mental state as is noticeable from the language employed in Sec.35 of the https://www.mhc.tn.gov.in/judis/ 27 Act. (Presumption of Mental State) “Possession” is a polymorphous term. In the context of Section 18 of the Act, once possession is established, the accused, who claims that it was not a conscious possession, has to establish it, because it is within his special knowledge and he has to account for the possession satisfactorily. The contraband was recovered from the possession of A1 and A2. Further, the learned Special Public Prosecutor argued that in this case, there was conscious possession of the contraband by the accused and the conscious possession may be either sole possession or joint possession. The appellants failed to adduce any evidence to account satisfactory for the possession of the said materials and hence, there is a presumption of culpable mental stage under section 35 of the NDPS Act. For that proposition, on the side of the prosecution relied upon the following rulings:-
(1)(2015)6 SCC 222 (Mohanlal Vs. State of Rajasthan); and (2)2015 SCC Online Mad. 6525 ( Ponmuthuvel and others Vs. The Intelligence of Officer, NCB).
31.As per section 54 of the NDPS Act, it is to be presumed that a person has committed an offence under the Act, if he fails to https://www.mhc.tn.gov.in/judis/ 28 account satisfactorily for the possession of Narcotic Drug, a psychotropic substance or controlled substance or any apparatus or any group of utensils separately adopted for the manufacture for any narcotic drug or psychotropic substance or controlled substance. Besides the recovery of the contraband, MO19 to MO56 were also recovered during seizure. The said materials articles, chemicals and apparatus are meant for the manufacture of the psychotropic substance. The appellants have not adduced any evidence to account satisfactorily for the possession of the said materials. There is a presumption of culpable mental stage under section 35 of the NDPS Act. Further, the appellants/accused failed to produce any document to show that they are in lawful possession of the contraband. Hence, it is held that at the time of occurrence, the appellants/accused were not in lawful possession of the contraband and they are illegally in possession of the contraband.
32.The further contention of the appellants/accused is that the voluntary statement of the appellants under section 67 of the NDPS Act is not admissible in evidence and hence, they are entitled to the benefit of acquittal. For that, the learned Senior counsel appearing for the appellants/accused submitted the ruling reported https://www.mhc.tn.gov.in/judis/ 29 in (2021) 4 SCC 1 (Tofan Singh Vs. State of Tamil Nadu). But on the other hand, on the side of the respondent, it is argued that even in the Tofan Singh's case, one of the Judges did not agree with the majority view taken by the other two judges and an officer can be deemed to be a “police officer” only if he has got power to file a final report under Section 173 of Cr.P.C. Though as per Section 53 of the NDPS Act, the respondent has got the power of an officer in-charge of the police station, he cannot file a final report before the Court under section 173 of Cr.P.C. Only a complaint procedure is followed by the respondent under section 190 of Cr.P.C and it cannot be equated with the power of police filing report under section 173(2) of Cr.P.C. For that, the learned Special Public Prosecutor appearing for the respondent submitted the following citation:-
1.AIR 1966 SCC 1746 (Badaku Joti Savant Vs. State of Mysore);
2.AIR 1970 SC 940 (Ramesh Cahdnra Mehta Vs. State of West Bengal); and
3.AIR 1970 SC 1065 (Illias Vs. Collector of Customs, Madras Behramji Merwanji Damania-Intervener).
https://www.mhc.tn.gov.in/judis/ 30
33.In this case, no final report was filed under section 173 of the Criminal Procedure Code and only a complaint procedure is followed by the respondent under section 190 of Criminal Procedure Code. Even though the statement under section 67 of NDPS Act is not admissible in evidence, but there was corroboration of evidence of PW1 to PW3, PW6 and PW8 in respect of seizure of the contraband from the accused. Further, PW1 to PW3, PW6 and PW8 deposed that the contraband was seized in the place of occurrence from the accused and the contraband was seized from the accused by way of seizure mahazar and the contraband was sent for chemical analysis and the report was received and from the report, it reveals that the contraband contains Methamphetamine.
34.The next contention put forth on the side of the appellants/accused is that the conspiracy was not proved by the prosecution and hence, the accused are entitled to acquittal. But the learned Special Public Prosecutor appearing for the respondent submitted that there cannot be any evidence for conspiracy and conspiracy is an agreement between two or more persons to commit an unlawful act at sometime in the future and the https://www.mhc.tn.gov.in/judis/ 31 agreement may be implied from the circumstances and the conduct of that persons and a person may be convicted for the charge of conspiracy even actual crime was never committed and it is settled law that if the ultimate offence constitutes of a chain of action, it would not be necessary for the prosecution to establish that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the good or service to an unlawful use and in this case, the conspiracy is proved by the prosecution and hence, the accused are not entitled to acquittal.
35.In the instant case, A1 and A2 were found together in the place of search and seizure. The passport (Ex.P7), the hotel receipt (Ex.P12), the mobile phone (MO.10), 5 Sim Cards (MO15) belong to A1 were recovered during search and seizure, besides recovery of the contraband, the raw materials for the production of the contraband and the apparatus meant for the manufacture of the Narcotic Drug. The voluntary statement of A1 (Ex.P37), the voluntary statement of A2 (Ex.P52), the voluntary statement of A3 (Ex.P57), the voluntary statement of A4 (Ex.P63) and the voluntary statement of A5 (Ex.P66) would clearly establish the roles of https://www.mhc.tn.gov.in/judis/ 32 everyone in the crime. The Car used by the accused to travel from Chennai was also seized and marked as MO.59, based on the voluntary statements. Unless the conspiracy has been hatched among the appellants/accused, the raw materials could not have reached Sirukoodalpatti from Mumbai, which was procured and supplied by A4 and A5. A3/Kaliyammal facilitated the manufacture of the contraband by providing accommodation to A1 and A2 to set up a Laboratory in the 1st Floor of her house.
36.In the decision reported in (1988)3 SCC 609 (Kehar Singh and others Vs. State (Delhi Administration), it was held that where there is reasonable ground to believe that two or more persons conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. On careful perusal of the records, it reveals that the conspiracy is proved on the side of the prosecution.
https://www.mhc.tn.gov.in/judis/ 33
37.The next contention put forth on the side of the appellants/accused is that the sentence imposed by the trial is disproportionate and no reason was given by the trial court for awarding maximum punishment. For that, the learned counsel appearing for the appellants/accused submitted the decision reported in (2019)6 SCC 492 (Rafiq Qureshi Vs. NCB, Eastern Zonal Unit).
38.On the other hand, the learned Special Public Prosecutor appearing for the respondent argued that the quantity of Narcotic substance recovered may be relevant factor to impose higher punishment and in this case, the appellants/accused were found in possession of 5.77 Kgs of psychotropic substance, which is 115 times more than the minimum commercial quantity and hence, the quantity of contraband has been taken into account. For that, the learned Special Public Prosecutor appearing for the respondent submitted the unreported decision of the Hon'ble Apex Court made in CA No.375 of 2021, dated 06.04.2021 (Gurdev Singh Vs. State of Punjab).
https://www.mhc.tn.gov.in/judis/ 34
39.Further, the learned Special Public Prosecutor appearing for the respondent submitted the 155th Report of the Law Commission of India, on NDPS Act, 1985, wherein it has been held as follows:-
The crimes are generally of two kinds:
(a)Traditional Crimes affecting individual persons, like murder, theft, assault, ect;
(b)White-Collar Crimes or Socio Economic Crimes affecting the public at large like smuggling, hoardings, adulteration, illicit trafficking and sale of narcotic drugs and psychotropic substances etc. White-collar crimes are of recent origin and may be defined as all illegal acts committed by unlawful means-the purpose being to obtain money or property or business or personal gain or profit. Such crimes are committed by the organized gangs having influence. Some of the salient features of the white-collar crimes are as under:
(a)there is no social sanction against such white-collar crimes;
https://www.mhc.tn.gov.in/judis/ 35
(b)these crimes are committed by organised gangs equipped with most modern technology;
(c)there is generally a nexus between the politicians law enforcing agencies and the offenders indulging directly in such crimes:
(d)there is no organized public opinion against such crimes; and
(e)the traditional crimes are isolated crimes, while the white collar crimes are part and parcel of the society.
40.In this case, the offence committed by the accused comes under socio-economic crimes and they are also such as white collar crimes. Hence, it will affect the health and material welfare of the community as a whole. On perusal of the judgment of the trial court, it is not stated that why maximum sentence was imposed.
41.At this juncture, it is necessary to refer Section 32B of the NDPS Act, which would run thus:-
“Where a minimum term of imprisonment or amount of fine is prescribed for https://www.mhc.tn.gov.in/judis/ 36 any offence committed under this Act, the court may, in addition to such factors as it may deem fit, take into account the following factors for imposing a punishment higher than the minimum term of imprisonment or amount of fine, namely:
(a)the use or threat of use of violence or arms by the offender;
(b)the fact that the offender holds a public office and that he has taken advantage of that offence is committing the offence;
(c)the fact that the minors are affected by the offence or the minors are used for the commission of offence;
(d)the fact that the offence is committed in an educational institution or social service facility or in the immediate vicinity of such institution or faculty or in other place to which school children and students resort for educational, sports and social activities;
https://www.mhc.tn.gov.in/judis/ 37
(e)the fact that the offender belongs to organized international or any other criminal group which is involved in the commission of the offence; and
(f)the fact that the offender is involved in other illegal activities facilitated by commission of the offence.
42.On coming to the instant case on hand, section 32B(e) is applicable. But as per the version of the prosecution, the accused were found in possession of 5.77 Kgs of Methamphetamine. Hence, this court is of the view that the maximum sentence imposed by the trial court is excessive. Considering the age ailments of the appellants/accused, the sentence imposed by the trial court may be reduced to some extent. Hence, this court is of the view that the sentence imposed on the appellants/accused for the offence under section 8(c) r/w 22(c) r/w 29 of the NDPS Act and 8(c) r/w 22(c) of NDPS Act to undergo 20 years RI each may be reduced to each 12 years RI.
https://www.mhc.tn.gov.in/judis/ 38
43.The next contention raised on the side of the appellants/accused is that the injuries sustained by A1 and A2 were suppressed by the prosecution and A1 and A2 sustained injuries at the hands of the respondent officials and the same is proved by substantial evidence before the trial court and it is fatal to the prosecution. On the other hand, on the side of the respondent, it is submitted that when the team party entered into the place of occurrence and on seeing them, A1 started running around the room and by his action, a 10 liters glass condenser fell down and thereby he slipped over the floor and sustained injury on his head behind the left side of his ear and it was not due to their action and hence, the injuries sustained by A1 was properly explained and hence, it is not fatal to the prosecution.
44.In this case, PW1 to PW3, PW6 and PW8 deposed that when they reached the place of occurrence, on seeing them, A1 started running around the room and by his action, 10 liters glass condenser fell down and thereby he slipped over the floor and sustained injuries on his head behind the left side of his ear. The above witnesses have not spoken that A2 sustained injuries in the place of occurrence after their search. Hence, it is held that A2 https://www.mhc.tn.gov.in/judis/ 39 sustained injuries at the hands of the NCB officials is not proved on the side of the appellants/accused.
45.On the side of the appellants/accused to prove the injuries sustained by A1 and A2, they examined the Doctors, who gave treatment to A1 and A2, namely DW2 and DW1. DW1 gave treatment to A2 and DW2 gave treatment to A1. A2 was given treatment as out patient. The Xerox copy of the OP sheet was marked as Ex.D1. On perusal of Ex.D1, the nature of the injuries were not stated. The original of Ex.D1 was not filed. DW1 has not deposed that A2 told him, how he sustained injuries. But during the cross examination, DW1 stated that he did not know about Ex.D1. Hence, from the evidence of DW1, it is not possible for the court to come to the conclusion that A2 sustained injuries due to the officials of the NCB. In this case, A1 was also treated as out patient and OP sheet was marked as Ex.D3. On perusal of Ex.D3 also, it was not stated that how A1 sustained injuries. Further, the nature of the injuries was not stated in the OP Sheet.
46.At this juncture, it is necessary to refer the cross examination of DW2, which would run thus:-
https://www.mhc.tn.gov.in/judis/ 40 “xU egh; fPnH tpGk; nghJ Th;ikahd bghUs; kPJ tpGe;jhy; me;j egUf;F nkny brhd;d btl;Lf;
fhaq;fs; Vw;gl tha;g;g[s;sJ. mt;thW
fPnH tpGk;nghJ fz;zpa fhaq;fs;
Vw;glt[k; tha;g;g[s;sJ. tpGe;j jiuia
bghWj;J KJfpy; nfhLtot fhak;
Vw;gl tha;g;g[s;sJ. mtUf;F Vw;gl;l
fhaq;fs; moj;jjpdhy; Vw;gl;l fhak;
vd;W Twpdhh.; mij ehd;
gjpt[ bra;atpy;iy. moj;jjhf Vw;gl;l
fhak; vd;W brhd;dhy; mij
gjpt[ bra;antz;Lkh vd;why;
gjpt[ bra;antz;Lk;. Mdhy; v.rh.M.4y;
mJnghd;W Columns ,y;iy vd;gjdhy;
ehd; gjpt[ bra;atpy;iy. ifjpf;F
moj;jjhy; fhaq;fs; Vw;gl;oUg;gjhf
vd;Dila nkyjpfhhpfSf;nfh
rpiwj;Jiw mjpfhhpfSf;nfh
bjhptpf;ftpy;iy.
Hence the evidence of DW2 and Ex.D3 reveals that it is not proved on the side of the appellants/accused that A1 sustained injuries only due to the assault by the officials of NCB. Hence, it is held that on https://www.mhc.tn.gov.in/judis/ 41 the prosecution side, it is proved that how A1 sustained injury. Further, in this case, the remand report was carefully perused. On perusal of the remand report of A1 to A3, it is seen that A1 and A2 have not stated before the Magistrate that they are subjected to assault by the NCB officials and thereby sustained injuries. Further, A1 and A2 took treatment only in the Jail. Hence, the argument put forth on the side of the appellants/accused stating that A1 and A2 sustained injuries only due to the assault by the NCB officials and the injuries sustained by A1 and A2 were not properly explained and it was not considered by the trial court is not at all acceptable.
48.For all the reasons stated above, this court is of the view that the punishment imposed as against A1, A3 to A5 for the offence under section 8(c) r/w 22(c) r/w 29 of the NDPS Act and under section 8(c) r/w 22(c) of NDPS Act as against A1 and A3 is reduced to 12 years RI each. The fine imposed by the trial court for the said offences is confirmed. In respect of other offences, the findings of the trial court is confirmed. It is seen from the records that in respect of A2, Crl.A(MD)No.171 of 2018 was filed and on 09.10.2020, it was dismissed as withdrawn.
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49.In the result, all the Criminal Appeals are partly allowed. The punishment imposed as against A1, A3 to A5 for the offence under section 8(c) r/w 22(c) r/w 29 of the NDPS Act and under section 8(c) r/w 22(c) of NDPS Act as against A1 and A3 is reduced to 12 years RI each. The fine imposed by the trial court for the said offences are confirmed. In respect of other offences, the findings of the trial court conviction and sentence imposed thereunder are confirmed. The modified above sentences imposed on the appellants/A1, A3 to A5 are directed to run concurrently. The period of sentence, if any, already undergone by the appellants/accused shall be given set off under Section 428 of Cr.P.C. Consequently, connected Miscellaneous Petitions are closed.
24.09.2021 Index:Yes/No Internet:Yes/No er Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
https://www.mhc.tn.gov.in/judis/ 43 T.KRISHNAVALLI,J er To,
1.The Additional District Judge/Presiding Officer, Special Court for EC and NDPS Act cases, Pudukkottai.
2.The Intelligence Officer, Narcotics Control Bureau, Madurai Sub-Zone, Madurai.
3.The Special Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
Crl.A.(MD)Nos.143, 174, 219 of 2018 & 309 of 2020 24.09.2021 https://www.mhc.tn.gov.in/judis/