Madras High Court
L.H.Karunapala vs State By on 24 March, 2010
Author: G.M.Akbar Ali
Bench: G.M.Akbar Ali
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24/03/2010 CORAM THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI CRL.A.(MD)No.984 of 2003 and CRL.A.(MD)No.1313 of 2003 and M.P.(MD)No.1 of 2010 Crl.A.No.984 of 2003: 1.L.H.Karunapala 2.L.H.Charlie Silva 3.J.Kamalroy 4.Chandrana Kumara ... Appellants/ Accused 1 to 4 Vs State by Superintendent of Customs, Customs Preventive Division, Tuticorin. ... Respondent/ Complainant PRAYER The appeal is filed under Section 374 of Cr.P.C.against the order dated 20.06.2003 passed in C.C.No.110 of 2000 on the file of the learned Special Judge for NDPS Act, Madurai. Crl.A.No.1313 of 2003: Meeran @ Meerathambi alias Ahamed Meerathambi ... Appellant/ Accused 5 Vs State by Superintendent of Customs, Customs Preventive Division, Tuticorin. ... Respondent/ Complainant PRAYER The appeal is filed under Section 374 of Cr.P.C. against the order dated 20.06.2003 passed in C.C.No.110 of 2000 on the file of the learned Special Judge for NDPS Act, Madurai. !For Appellant ... Mr.R.Rajan in Crl.A.No.984 of 2003 Mr.B.Kumar (Senior Counsel) for Mr.M.Ramasamy in Crl.A.No.1313 of 2003 ^For Respondent ... Mr.C.Arulvadivel Sekar :COMMON JUDGMENT
Both the appeals are filed against order dated 20.06.2003 passed in C.C.No.110 of 2000 on the file of the learned Special Judge for NDPS Act, Madurai.
2.The brief facts of the cases are as follows:
On 20.01.1999, when P.W.1 was working as Assistant Commissioner, Customs Preventive Division, Tuticorin received information that 50 kgs. of narcotic drugs is about to be transported in a fishing boat to Sri Lanka and he forwarded the information to his superiors. P.W.12 the Superintendent deputed P.W.2 Ravi, Inspector of Customs to gather particulars of the illegal transportation of the drugs. A team of officers were sent to apprehend the persons concerned in the illegal transaction at the coastal area between Kayalpattinam and Oodakarai. In the early hours of 21.10.1990, P.W.2 noticed a fishing boat reaching the seashore of Kayalpattinam and he immediately informed P.W.2 by wireless. The Customs team intercepted the fishing boat. On noticing the customs boat, the Srilanka fishing boat suddenly turned and sped towards high seas. P.W.2 team chased it and signalled the boat to stop but the fishing boat did not stop. Rifle shots were fired and the boat stopped. PW.2 and his team entered into the boat and found that accused 1 to 4 and three gunny sakes in the said boat. On direction from P.W.2 through wireless the fishing boat was brought to the shore and a through search was made and 4 sakes were seized. The team had also seen some persons who were waiting to unload the boat ran away from the shore. The boat was taken to Tuticorin Customs Jetty and it was searched in the presence of independent witness. The name of the boat was "Saluja Sandi No.1010" and on enquiry the name of the persons were found out to be Karna Bala, S/o Charless, Neelame S/o Kribnantha, Kamalrao Joseph and Chandra Kumara, S/o Gonsonponseka they are Sri Lankan citizens. In the presence of independent witnesses, the sakes were numbered and was opened. Each sake contained 11 pockets of polythene bag contained pale brown powers and they were weighed 52.840 kgs. Each pocket was opened and testing kit and found to be heroin and samples were taken from the pockets and necessary procedures were adopted for sealing and were marked. The fishing boat was seized under magazor along with the contraband. The accused were examined through P.W.10 who acted as a translator and statement were recorded in the presence of P.W.3 and P.W.4. Through the translator the statements were recorded. The seized property were sent for customs godown and the samples were sent for chemical analysis. After obtained the statements of A1 to A4 under section 67 of NDPS Act, they were arrested and the reasons for arrest were explained by them. As their statement reveals the involvement of A5, who was shown as absconding accused and later he was arrested in connection with some other case and was produced under P.T. warrant.
3.On laying of charge sheet for offences under Section 8(c) r/w 21, 23, 28, 29 and also of NDPS Act and under Section 135(1)A r/w 11 of Customs Act and also under Section 3(2) of Foreign Trade (Development and Regulation) Act. The learned Special Judge for NDPS, Madurai framed charges and the accused were questioned and they pleaded not guilty. On trial, the prosecution examined as many as 12 witnesses and marked 22 documents and produced M.O.1 serious photos and negatives were seized contraband.
4.On analysing the oral and documentary evidences, the learned trial judge found that the prosecution has proved the offences beyond reasonable doubt and has imposed the maximum sentence of 10 years for each offence and imposed a fine amount of Rs.1 lakh and in default three years for each offence.
5.Aggrieved by the conviction and sentence, the accused 1 to 4 preferred criminal appeal in Crl.A.No.984 of 2003 and 5th accused preferred an appeal in Crl.A.No.1313 of 2003. Both the appeals were taken together by this Court and the point for consideration in this appeal is the conviction and sentence of the trial court is sustainable.
6.Mr.B.Kumar, learned Senior Advocate for appellants in Crl.A.No.1313 of 2003 submitted that the sentence was passed as early as 10th June 2003 and the accused were arrested and they are in custody from 21.10.1999 and they have already undergone the maximum sentence of 10 years which were ordered to be run concurrently by the Trial Court. The learned counsel restricted his argument only to the fine and default sentence of 3 years for a fine of Rs.1 lakh for 3 offences. The learned counsel pointed out that as such, the accused have to undergo another 9 months to complete the default sentence. The learned counsel also submitted that the accused are Sri Lankan nation and they are aged and spent 10 years in the prison and they have family to take care of at Sri Lanka.
7.Heard Mr.C.Arul Vadivel Sekar for respondents, who has no objection to consider the default sentence.
8.As far as the appellants in Crl.A.No.984 of 2003, who were Sri Lankan nation is concerned, without going into the merits of the case, I am of the opinion that the default sentence of 3 years for each offence has to be modified in the interest of justice. Therefore, the default sentence is modified into the period already undergone as the appellants have completed 10 years on October 2009 and now they are in prison more than 5 months which is enough.
9.As far as appellant in Crl.A.No.1313 of 2003 is concerned, Mr.B.Kumar, learned Senior Advocate submitted that there is no material evidence to show that he is involved in the offence. The learned counsel pointed out that even according to the prosecution, the accused has to contact one Meeran at the sea- shore and the code word is to call him as Meeran and if he replies calling A1 as Karnabala and he has to be identified and the contraband has to be given to him. The learned counsel pointed out that there is no identification for A5 from the statement of A1. The learned counsel pointed out that on examining the defence witness A5 was proved to be one Ahamed Meera Thambi. The learned counsel further pointed out that there are 100 of Meerans in Kayalpattinam and without any identification, A5 was implicated in this offence.
10.Mr.Arul Vadivel Sekar, learned counsel for the respondent submitted that A5 was involved in another crime and he was found to be the person who involved in the import of the contraband.
11.The learned counsel for the appellant pointed out that the Trial Court has observed that "As the above prisoner is involved in sensational cases, the escort party should be suitably instructed to be more vigilant during transit to avert any untoward incidents like escape and also very cautious to prevent any attempt to rescue the custody of prisoners ....
The statements of A.1 to A.4 also would reveal that the 5th accused is very much concerned in this case. Their statements recorded u/s.67 of N.D.P.S.Act is admissible in law."
12.Heard both and perused the entire records and documents.
13.Admittedly the name of the 5th accused is Ahamed Meera Thambi as per the records produced by him. The satement of A1 to A4 would reveal that the contact person at the shore is to be called as Meeran and he will pass the code by calling A1 by his name. A mere code name like Meeran is not identifying any person. The identity of the said Meeran was not revealed by any of the witnesses. The 5th accused was escorted from the Central Prison, Palayamkottai, was remanded for having contact with banned LTTE and without any identification, he was made involved in the present case and the reason given by the Trial Court is untenable. The Trial Court has stated that he has involved in sensational case and therefore, he must be concerned in the present case. There is no iota of evidence to involve the appellant herein for the charges levelled against the prosecution.
14.Therefore, the conviction and sentence against the 5th accused who is the appellant herein, is without basis and liable to set aside and accordingly set aside. In the result, the appeal is disposed of accordingly.
15.M.P.No.1 of 2010 is filed by the prosecution to direct the Special District and Sessions Court for EC and NDPS Act cases, Madurai in C.C.No.110 of 2000 to initiate confiscation proceedings and confiscate the wooden fishing launch and fishing nets more fully described in the petition schedule after notice and publication is allowed.
nbj To The Special Judge for NDPS Act, Madurai.