Madras High Court
Intelligence Officer vs Anil Bhai Balwant Rai Desai on 25 January, 2008
Author: S.Ashok Kumar
Bench: S.Ashok Kumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25/01/2008 CORAM THE HONOURABLE MR.JUSTICE S.ASHOK KUMAR Crl.A.(MD).No. 844 of 1999 Intelligence Officer Directorate of Revenue Intelligence No.5/1, 11th Street, Tooverypuram, Tuticorin-3 ... Appellant Vs 1. Anil Bhai Balwant Rai Desai 2. Prem Pratap Singh Sisodia alias Prem Singh Sisodia alias Prem Pratap Sisodia 3. H.Nazeer Ahmed Basha 4. D.Nazeer Ahmed 5. S.Kirubaivaram 6. R.Balasundaram alias Sundaram ... Respondents Prayer Criminal Appeal filed under Section 378 Cr.P.C. against the judgment dated 28.5.1999 on the file of the Special District and Sessions Judge, Madurai, in S.C.No. 417 of 1995. !For Appellants ... Mrs.Nisha Banu ^For Respondents ... Mr.B.Kumar, S.C., for Mr.S.Ramalingam :JUDGMENT
The state represented by Intelligence Officer, Directorate of Revenue Intelligence, Tuticorin has preferred this appeal against the acquittal of the respondents herein of the alleged offences under sections 8 (c), 22, 23 r/w 28, 25 and 29 of the NDPS Act by the Special District and Sessions Court (The Narcotic Drugs and Psychotropic Substances Act Court), Madurai in C.C. No.417 of 1995.
2. The charges levelled against the respondents who had been arrayed as A1 to A6 before the trial court was that during the period from June, 1994 to 26.03.1995, at Surat, Madras, Trichy, Tuticorin and other places, A-1 to A-6 herein, with others known and unknown, entered into a criminal conspiracy to do or cause to be done illegal acts, viz, export inter-State, import inter-State, transport, possess, conceal for the purpose of illicitly exporting from India to Quelin, Mocame through Tuticorin Port, Psychotropic substance namely methaqualone Tablets, also known as Mandrax Tablets.
3. In pursuance of the said criminal conspiracy and in the course of the same transaction, A-1 & A-2 exported interstate 7 chlorine gas cylinders containing Mandrax Tablets concealed therein consigned in the name of M/s. Padmini Agencies to self to Madras through M/s.Sakthi Cargo Movers to M/s.Batco Roadways, Madras who warehoused the said chlorine gas cylinders containing Mandrax Tablets concealed therein at M/s.Venus Warehousing Madras.
4. A-3 made arrangements to take delivery of the said chlorine gas cylinders containing of Mandrax Tablets concealed therein by A-4 herein in the name of B.Babu from M/s. Venus Warehousing through M/s.Batco Roadways by producing the Lorry receipt and other connected documents, made arrangements through A-4 for the transport of the said chlorine gas cylinders containing the said quantity of Mandrax Tablets concealed therein from Madras to Trichy by M/s. Shri Iyyappaswamy Transports, made arrangements through A-4 and A-5 to take a premises on rent at Trichy for the purpose of storing the said chlorine gas cylinders containing the said quantity of Mandrax Tablets concealed therein so transported from Madras to Trichy, made arrangements through A-4, A-5 and A-6 to cut open the said chlorine gas cylinders containing the said quantity of Mandrax Tablets concealed therein to take out the said quantity of Mandrax Tablets, made arrangements through A-4, and A-5 for the transport of the said wooden boxes containing the said quantity of Mandrax Tablets concealed therein along with agarbathis from Trichy to Tuticorin, made arrangements through A-6 to take on rent a premises at Tuticorin for storing the said wooden boxes containing the said quantity of Mandrax Tablets concealed therein along with agarbathis, made arrangements for repacking of some wooden boxes containing agarbathis with senna leaves and made arrangement through A-6 to cause filing of documents for the purpose of illicitly exporting the said wooden boxes containing the said with agarbathis and wooden boxes containing therein along with agarbathis and wodden boxes containing senna leave dust to M.L., Quelin, Mocame through Tuticoriin Port declaring the consignment as senna leave dust in the name of Ambika Agencies, Madurai.
5. Accordingly, charges were framed and when the accused were questioned about the same, they denied having committed any of the offence charged against them. Hence the trial was conducted by the Sessions Court.
6. On behalf of the prosecution, Pw1 to Pw28 were examined and several documents were marked as Ex.P1 to Ex.P107.
7. PW-1, Nagarajan, Superintendent of customs Investigating Wing, Trichy in his evidence stated that his Assistant Collector of Customs received a Fax message Ex.P80 on 14.02.1995 from Assistant Collector of Revenue and Intelligence, Chennai and on that basis he and his officers went to Sri Iyyappasamy Lorry Service, Trichy and obtained documents Lorry Bill No.6744, dated 30.06.1994 (Ex.P2), G.V.R No.15 dated 30.06.1994 (Ex.P3) in which the name of the lorry driver is mentioned as Chinnasasmy, Invoice No.2717, dated 30.06.1994 (Ex.P4) and lorry weight certificate (Ex.P5) dated 30.06.1994. In Ex.P2, one Babu's signature is found as the person who received the 7 cylinders. Ex.P2 to Ex.P5 were recovered but not under Mahazar. On investigation, it was found that the address given by Babu was false and Pw11, the driver Chinnasamy was asked to appear before the customs office. Pw11 identified the house where the goods (7 cylinders) were unloaded. On enquiry it was found two muslims stayed there at that time. The statements of the owner of the house Archunan Pw12, house broker Rajalingam Pw13, lorry driver Chinnasamy Pw11, Palanisamy Pw15 who worked as employee under the two muslims were recorded and marked as Ex.P7, Ex.P8, Ex.P6 and Ex.P9, all dated 15.02.1995. A telex message Ex.P10 was sent to Assistant Collector (R & I), Chennai reporting the enquiries made by Pw1. On 28.03.1995, the owner of the house Archunan, Pw12 handed over the rent agreement (Ex.P12) with Babu along with a letter Ex.P12 to Pw11 stating that after search he could find out the rental agreement. On enquiry, the address contained in Ex.P12 was false. Again on 29.03.1995, the cleaner of the lorry Perumal was examined and a statement Ex.P13 was recorded. Pw15 was properly examined on 29.03.1995 and at that time he revealed that out of the two muslims, who stayed in the house of Archunan one was undergone an eye operation in Madurai. The handwriting in the documents Ex.P15 of Aravind Eye Hospital where the muslim had undergone eye operation was compared with the signature in Ex.P12 and they were similar in nature. The address given in the Hospital document was found out and the muslim person was found out and he was A4. On 30.03.1995, the residence of A4 was searched in the presence of A4 and he revealed the real name of Babu who received the 7 cylinders was Basha who was A3. On 31.03.1995, A3 was found out and he said that Balasundaram A6 has helped him in cutting open the 7 cylinders. The statement of A6 was Ex.P16. Photographs of A3 and A6 was Ex.P16. Photographs of A3 and A4 (M.O.1 and M.O.2) were shown to A6 and he identified in that by putting his signature. The statement of A3 was recorded which was marked as Ex.P17. Photographs of A4 and A6 (M.O.3 & 4) were shown to A3 and he identified them by putting his signature on that. Pw1 stated that Pw2 Madhavaraj, Superintendent of Customs, Investigating Wing, Trichy assisted him in his investigation and Pw2 recorded the statement of A4 on 31.03.1995 which was Ex.P28. Under Mahazar Ex.P18, the brush, bucket etc., used for the writing on the boxes were seized from Sri Vinayagar godown, Ariyamangalam, Trichy in the presence of A3 and A4 (M.O.5 and 6). His statement was recorded in Ex.P19. Pw13 was again examined and a statement in Ex.P20 was recorded. Photographs of A3 and A4 (M.O.10 &11) were shown to him and he identified them. Again Pw12 was examined and his statement Ex.P21 recorded. Photographs of A3 and A4 (M.O.12 &
13) shown to him and he identified them. Absconding accused Abdul Razak's house at Trichy was searched on 01.04.1995 and certain photographs were seized under Mahazar Ex.P22.
8. The house of A6 was searched on 01.04.1995 and nothing was recovered. The Mahazar was Ex.P23. Pw1 sent a report under section 57 to Assistant Collector of Customs, Trichy on 01.04.1995. That was Ex.P24. Assistant Collector (R & I), Chennai sent L.R. No.532, dated 19.06.1994 Ex.P25 along with the Telex message Ex.P1 to Pw1 for investigation purpose. All the documents collected were sent to Revenue Intelligence Officer, Chennai along with the letter of Deputy Collector of Customs, Trichy on 01.04.1995. The letter was Ex.P26. On 06.04.1995 one Akramalla, who purchased the iron scraps of the broken cylinders was examined and a statement in Ex.P27 was recorded. He identified the photo (M.O.14) of A6.
9. PW-2, Madhavaraj, Superintendent of Customs, Central Investigating Wing, Trichy stated in his evidence that he investigated the case along with Pw1.On 31.03.1995, the statement of A4 was recorded which was marked as Ex.P28. A4 identified the photos (M.O.15 & 16) of A3 and A6. Statement of lorry cleaner Perumal was again recorded which was marked as Ex.P29 and he identified the photo of A3 (M.O.17). The landlord Murugan in whose land the cylinders were cut opened was examined, but no statement was recorded from him. The house of A3 was searched on 01.04.1995 and nothing was seized. The Mahazar is Ex.P30. Pw2 came to understand that A1 and A2 were in Central Prison, Madurai as remand prisoner in C.C. No.113/95 case and to enquire them, a requisition petition dated, 07.06.1995 was filed in the court and the same was ordered. On 08.06.1995, both A1 and A2 were examined in the presence of Jailer and their statements in Ex.P31 and Ex.P34 were recorded. When A1 was enquired, Xerox copies of Sakthi Cargo Movers (P) Ltd., bill No.532 dated 19.06.1994 (Ex.P32) and Sakthi Cargo Movers Ltd., No.1107 dated 02.07.1994 (Ex.P33) were shown to him and A1 signed on that. On 09.06.1995, Dr.Paramasivam Pw27 was examined in Pw2's office and a statement in Ex.P35 was recorded. On 20.06.1995, one Rekha was examined and she gave a letter Ex.P36. In that, it was stated that there is no firm in the name of Ambiga Exports in No.16, South Masi Street, Madurai. Pw2 admitted that in Ex.P32, the name of Sanjayshah was signed for Padmini Agencies and the name of T.A.Perumbar was found in Ex.P32 as the person who received the goods. But, no question with regard to Shanjayshah and T.A.Perumbar was asked to A1 when he was interrogated in the prison.
10. PW-3, Paul Mohammed, Senior Intelligence Officer, DR1, Chennai in his deposition stated that his Senior Officer Rajendran (Pw26) called him on 24.03.1995 and informed him that he received an information from the intelligence officer Christy Pw23 and in that it was mentioned Mandrax tablets were concealed in a house at Ganesh Nagar Extension, Tuticorin. The information report is Ex.P37. On 25.03.1995, Pw3,Pw26 and other officers went to the house and enquired the owner of the house Sudalaimuthu and he informed that one Kirupaivaram (A5) approached him through a house broker for rent and the house was rented out to him after receiving the advance. He also informed that Kirupaivaram was the owner of Santosham & Co. The house was searched from 25.03.1995 to 26.03.1995 in the presence of Pw10, Pw11 and A5 and 124 boxes in gunny bags were found to contain Mandrax tablets of 3000 kg. in packets in between Agarbathis and Senna leaves. On each bag SC India to ML Qulin Moqalime was written. The contraband was seized under Mahazar Ex.P38. The statement of Suddaimuthu under Ex.P39 was recorded. On 26.03.1995 in the presence of A5, his house was searched and nothing was seized. Ex.P40 was the Mahazar. A statement Ex.P41 was recorded from A5. A report u/s 57 was submitted on 26.03.1995 to Pw26 which was Ex.P42. The seized goods were submitted to Madurai special court on 27.03.1995 by a report Ex.P44. The balance of the goods handed over to one Senthil Kumar Excise godown keeper on 25.03.1995 and the receipt is Ex.P45. Ex.P47 and Ex.P48 were the Test Memo to Laboratory and the Laboratory Report. On 31.03.1995, the house of absconding accused Abdul Razak at Madras was searched and some documents were seized under Mahazar Ex.P52. A report u/s 57 was submitted to Pw26. That was Ex.P53. On 01.04.1995, Pw3 and his officers reached their Trichy office and the documents collected by the Trichy Customs Office along with the letter Ex.P26 were handed over to them by the Deputy Collector of Customs, Trichy. On 01.04.1995 A4, Pw12, Perumal Pw13, Pw15 and A6 were examined by Pw3 and their statements under Ex.P54, Ex.P55, Ex.P56, Ex.P57, Ex.P58 and Ex.P59 were recorded respectively. On 02.04.1995, A5 was examined and a statement Ex.P60 was recorded. On 02.04.1995, the accused 4, 5 and 6 were arrested. The arrest memos are Ex.P61, 62 & 63. Pw26 arrested A3 and a remand report in Ex.P64 was prepared and remanded to J.M.No.1, Trichy on 02.04.1995. A report under section 57 was submitted to Pw26. That was Ex.P66. On 08.04.1995, Pw16 was examined and a statement in Ex.P67 was recorded, Photo of A3 (M.O.18) was shown to him who identified the same. Pw10 of Venus Warehouse Corporation was examined and his statement in Ex.P68 was recorded and he identified the photo of A3 as the person who deposited the 7 cylinders to him. The partner of M/s.Batco Roadways Corporation M.H.Batni (Pw8) was examined and his statement in Ex.P69 was recorded. Ex.P70 and Ex.P71 were the Xerox copies of Ex.P32 and Ex.P33. One Ismail, a witness to the search of the absconding accused Abdul Razak was examined and his statement was recorded in Ex.P72. After getting the order of the Court, A3 was examined in Central Prison, Madurai on 18.04.1995 and a statement in Ex.P73 was recorded. The photos of A1 and A2 were shown to A3 and he stated that he never met them. The letter dated 30.06.1994 written by Batco Roadways Corporation to Venus Warehousing Ex.P74 was shown to A3 and he admitted the signature. Ex.P75 was the statement of Pw6 who let out his crane to A3 to lift the 6 cylinders into the lorry and Ex.P76 was the receipt dated 27.08.1994. Pw3 admitted that in his statement Ex.P41, and in the Mahazar Ex.P38, A5 denied knowledge about the Mandrax tablets in the boxes and he also said he did not know whether A5 has taken delivery of the goods at Tuticorin.
11. Pw4, Sankaravadivelu, Assistant Commissioner (R & I) Customs House, Chennai in his evidence stated about the receipt of Fax Ex.P77 dated 24.01.1995 from the Collector of Customs Preventive Unit, Ahmadabad. A fax message Ex.P80 was sent to Collector of Customs Preventive Unit, Trichy on 13.02.1995. Pw1 has submitted a report Ex.P10 to Pw4 on 15.03.1995.
12. Pw5, Jayakumar, Intelligence Office, DRI, Madras in his evidence stated about the recording of the statement Ex.P81 dated 08.04.1995 of Zairuddin, Proprietor of M/s.Venus Warehousing, Madras.
13. Pw6, Saidalavi, who let out his crane to A3 stated that he has given a statement, Ex.P75 and he identified the photo of A3.
14. Pw7, Akramullah, in his evidence stated that he purchased the iron scraps from A6 for Rs.31,000/-. He has given a statement, Ex.P27 on 06.04.1995 and identified the photo of A6 which is M.O.14. He admitted that he has not given any receipt for the purchase of the iron scraps from A6 and did not mention in their Account Note Book.
15. Pw8, M.H.Patni, working partner of Batco Roadways Corporation, Madras in his evidence stated that he was examined by the officers on 08.04.1995. Ex.P70, Ex.P71, Ex.P74, Ex.P78 and Ex.P79 were shown to him and he has given a statement in Ex.P69 .
16. Pw9, Mohd. Jabarullah, Typist in Batco Roadways Corporation, Chennai in his evidence stated that he was interrogated with regard to the clearance of 7 cylinders and a statement Ex.P82 was recorded from him on 08.04.1995. He identified the photo of A3 M.O.18 dated 08.04.1995. Later on, he identified A3 in the Madurai Central Prison on 18.04.1995.
17. Pw10, Arumugam, Clerk in Venus Warehousing in his deposition stated about the delivery of two consignments on 30.06.1994 and 19.09.1994 respectively. He was shown the photo of A3 on 08.04.1995 and later on he identified him in the Central Prision.
18. Pw11, Chinnasamy, lorry driver in Iyyappasamy Lorry Service, Trichy in his evidence stated about the transport of 7 cylinders in his lorry from Chennai to Trichy on 30.06.1994 and A3 has taken delivery at Trichy and signed in Ex.P2. He has given a statement in Ex.P6. He admitted that the photo of A3 was shown to him at the time of interrogation.
19. Pw12, Archunan, owner of the house wherein it is alleged that A3 and A4 stayed. He has stated that statements Ex.P21 and Ex.P55 were recorded from him on different dates. The photos of A3 and A4 were shown to him and he identified M.Os.12, 13. Ex.P11 and Ex.P12 were handed over by him to the officers on 28.03.1995.
20. Pw13, Rajalingam, House broker has stated that he had fixed the house of Pw12, for A3 and A4. Photos of A3 and A4 were shown to him and he identified M.Os.10 & 11.
21. Pw14, Viveganandam, of lorry booking office, Trichy stated that he booked two lorries from Rajalingam lorry service for A3 and A4. Photos of A3 and A4 were shown to him on 31.03.1995 and he identified M.Os.28 and M.O.29.
22. Pw15, Palanisamy, in his evidence stated that he worked as a servant for A3 and A4 and photos of A3 and A4 were shown to him and he identified M.Os.5 and M.O.6. He has given three statements Ex.P9, Ex.P19 and Ex.P58.
23. Pw16, Gnanasekar, Proprietor of Sri Iyyappasamy Lorry Service, Chenna has stated in his evidence that one Babu approached him on 30.06.1994 for the transport of cylinders to Trichy. He was examined on 08.04.1995 and a statement Ex.P67 was recorded from him. A photo of A3 M.O.18 was shown to him and he identified them.
24. Pw17, Sornavelkumar @ Sham, Customs Clearance Agent, Tuticorin stated that he was examined on 02.04.1995 and a statement in Ex.P84 was recorded from him.
25. Pw18, Subbulakshmi, Asst. Chemical Examiner- Customs House, Chennai stated about the receipt of Test Memo Ex.P47 and letter of Pw3 Ex.P85 and the report Ex.P48.
26. Pw19, Kumarasamy, was one of the witnesses to the seizure of Mandrax tablets Ex.P38 on 25.03.1995 at Ganesh Nagar Extension, Tuticorin and he deposed about the seizure.
27. Pw20, Runstide, care taker of Sugam Hotel, Tuticorin has stated that he was examined on 15.06.1995 and a statement in Ex.P88 was given by him. He was interrogated with regard to the absconding accused Abdul Razak who had stayed in his hotel.
28. Pw21, Gnanasekar, Superintendent of Customs, Preventive Unit, Tuticorin has stated about the apprehension of A1 and A2 on 15.12.1994 in Patel Roadways,Tuticorin, the seizure of documents from them, recording of statements Ex.P89 and 90 from A1 and A2 on 16.12.1994 and the statements Ex.P91 and 92 on 17.12.1994 and 18.12.1994. He examined A5 in his office on 01.04.1995 and a statement in Ex.P93 was recorded from him. He admitted that A1 and A2 were under their custody from 15.12.1994 to 19.12.1994. He also admitted that two statements were obtained from A1 and A2 on 04.01.1995 and 12.01.1995 when they were inside prison and both of them denied their involvement and they had no connection with the alleged seizure of the goods.
29. Pw22, B.C.Patel, Superintendent Customs Preventive, Customs Task Force, Valsad, Gujarat in his evidence has stated that as per the instructions of Assistant Commissioner of Customs he proceeded to the factory at Hari Om Engineerss at Chikhli on 19.12.1994 and interrogated the workers in the factory and they told the name of the owner Vijaya Singh who was in the factory M/s.Lakshmi Gems and search was conducted there and certain incriminating documents were recovered. He found from his investigation that two consignments of chlorine gas cylinders containing Mandrax tablets dispatched from M/s. Hari Om Engineerss, Chikli during June 1994 and July 1994 through Sakthi Cargo Movers of Surat and on interrogation of Sakthi Cargo Movers Director it was found out that on 19.06.1994 and 02.07.1994, two consignments each contained 7 cylinders were transported from Surat to Madras through M/s.Batco Roadways, Madras and the consignor name was Padmini Agencies and the consignee self. The information was forwarded to D.R.I Madras and Commissioner of Customs, Tuticorin from Commissioner of Customs.
30. PW-22, interrogated A1 in the Central Prison on 16.02.1995, 17.02.1995, 18.02.1995 and 20.02.1995 and his statements in Ex.P94, 95,96 and 97 were recorded from him. Similarly, on 21.02.1995 and 22.02.1995, A2 was interrogated by Pw22 and his statements in Ex.P98 and 99 were recorded. He came to the conclusion that A1 and A2 did not depose wholly the right answers and therefore he has closed the statements.
31. Pw23,Christy, Senior Intelligence Officer, DRI, Madras has stated that he recorded an information in Ex.P37 on 24.03.1995 at Tuticorin and communicated it to Pw26. He submitted an information report Ex.P37 to his superior officers at Tuticorin.
32. Pw24, Chinnasamy, lorry driver in Rajalingam lorry booking office, Trichy has stated about the transport of boxes containing Agarbathis from Vinayaga complex godown, Ariyamangalam to Tuticorin. He identified A3 and A4 on their photos M.O.28 and 29. He admitted that there was no proof for the transport of the goods from Trichy to Tuticorin except their oral evidence.
33. Pw25, Mathiazhagan, Loadman in Vinayaga complex godown, Ariyamangalam has stated about Mahazar Ex.P18.
34. Pw26, Rajendran Assistant Director, DRI, Chennai has stated about the receipt of information from Pw23 and receipt of Ex.P37. He corroborated the evidence of Pw3 with regard to the seizure of Mandrax tablets at Ganesh Nagar Extension, Tuticorin on 25.03.1995. A statement in Ex.P104 was recorded from A3 on 02.04.1995 and he was arrested on 02.04.1995 as per arrest memo Ex.P.105. Report under section 57 Ex.P106 was submitted to Deputy Director.
35. Pw27, Dr.Paramasivam, stated that he was interrogated with regard to the seizure of Mandrax tablets on 12.12.1994 and 25.03.1995 and the statement of A1 (Ex.P31) was shown to him and he denied the contents in that. He stated that on 16.12.1994, he was examined in Customs Office, Tuticorin and he has seen A1 and A2 for the first time at Customs Office,Tuticorin.
36. Pw28, Ernest Ravi, Intelligence Officer, DRI, Tuticorin has filed the complaint Ex.P107 before the court on 26.06.1996.
37. The accused were questioned under section 313 Cr.P.C. with reference to the incriminating materials found against them in the evidence of the prosecution witnesses. They denied having committed any office and their complicity in the case.
38. On behalf of the accused, DW1, S.Thangam, Assistant Prison Officer, Madurai and DW2, Dr.K.sundararajan, Prison Doctor, Madurai were examined and the prison records were marked as Ex.D1 to Ex.D6.
39. DW-1, in his evidence stated that on 19.12.1994, both the accused were brought to Central Prison, Madurai as remand prisoners. Ex.D1 was the prisoners' register book maintained in the prison. A1 was given the number 1171 and A2 was given the number 1172. Both A1 and A2 were brought late night to the prison and at that time both complained of leg pain and noted the same in Ex.D1 which note was marked as Ex.D2. It was mentioned in that A1 complained of contusion on his left leg and pain on his palms because of beating. The note with regard to No.1172 mentions that A2 complained of pain on his both palms and he was unable to walk. Dw1 denied that Ex.D2 was subsequently written in Ex.D1 after deleting the original writing. He also denied the suggestion that it was written in some other pen. Since the ink was exhausted, new ink was filled up and Ex.D2 was written.
40. DW-2, in his evidence stated that during December 1994 he was working as prison doctor in Madurai Central Prison and has given medical treatment to A1 and A2 in the Central Prison. Both were in-patients in Central Prison hospital. Dw2 has given letters Ex.D3 and Ex.D5 to Superintendent, Central prison, Madurai mentioning the nature of complaint by A1 and A2. O.P. Chits Ex.D4 and Ex.D6 were also enclosed. As per the records Ex.D4 to Ex.D6, A1 was complaining body pain, chest pain and giddiness. He was examined thoroughly and on examination, there was a contusion mark in his left calf muscles. He was detained in jail hospital and treated from 22.12.1994 to 02.01.1995. He was produced before the Chief Medical Officer and seen by him. He was advised to take same line of treatment. Similarly, A2 was complaining of low back pain, body pain and pain over both feet. He was examined thoroughly and on examination and with his past history he was diagonised as known case of diabetic and treated with suitable drugs from 22.12.1994 to 02.01.1995 as in-patent in jail hospital. He was produced before the Chief Medical Officer and seen by him and was advised to take same line of treatment.
41. The learned Special Judge after analysing the evidence, both oral and documentary available on record and after hearing the counsel appeared on both sides had acquitted the respondents herein of all offences on various grounds. Aggrieved of the said acquittal, this appeal is preferred by the Directorate of Revenue Intelligence.
42. The learned Special Public Prosecutor appearing for the appellant contended that the learned Special Judge has committed grave errors in acquitting the accused without properly considering the evidences on record. She put-forth her contentions as follows:
(i) The confession statements of A1 and A2 Ex.P90 and 89 and Ex.P92 & 91 are in their own handwriting and they made endorsements at the foot of the statements that they are voluntary and they did not retract the statements at the time of prosecution before the Judicial Magistrate.
(ii) The evidence of Dw1 and Dw2 and the jail records Ex.D1 to Ex.D6 ought not to have been taken into consideration.
(iii) The statements of A1 and A2 in Ex.P94 to 99 given to Pw22 long after the alleged torture given by customs department of Tuticorin and therefore such statements have to be considered as voluntary.
(iv) The statements of A1 and A2 in Ex.P31 and 34 given on 08.06.1995 to Pw2 long after the alleged torture given by customs department of Tuticorin and ought to have been taken into consideration as true and voluntary.
(v) The witness Pw11, Pw12, Pw13 and Pw15 are genuine and their evidences ought not to have been rejected.
(vi) Failure to hold test identification parade has no relevance because witnesses are familiar with the accused 3 to 6 and they identified A3 to A6 in court.
(vii) Identification of A3, A4 and A6 through photographs are only corroborative piece of evidence and their identity has been established through other sources.
(viii) Ex.P11 and Ex.P12 are genuine documents and ought not to have been rejected.
(ix) A5 could not offer any explanation for illicit possession and the explanation in Ex.P41statement is not correct.
(x) There is no violation of section 42 of the NDPS Act.
43. On the other hand, Mr.B.Kumar, the learned Senior Counsel appearing for the respondents would strenuously argue that the prosecution has miserably failed to prove its case and therefore the trial court has rightly acquitted the accused.
44. According to the learned senior counsel, the statements of the accused are involuntary in nature and were obtained after they were detained illegally for more than four days and therefore the statements are inadmissible in evidence. A3 catagorically denied that he had any connection with A1 and A2. The photographs of A3 to A6 were shown to various witnesses Pw6, Pw7, Pw11, Pw12, Pw13, Pw15 and Pw16 and the witnesses had signed on the photos as a mark of identifying the accused for their role in the case. It is not admissible in evidence and no identification parade was conducted. The later identification in the court is useless. It is also not correct to contend that the witnesses and A3 to A6 were known to each other earlier or had acquaintance with them. There is no such evidence produced by the prosecution. The learned senior counsel had relied upon the judgment of the Supreme Court reported in AIR 2004 SC. 4965. The evidence of Pw12 and Pw15 are highly improbable in nature and as per prosecution, the actual investigation starts from Pw12 and Pw15 to trace out the accused A3 to A6. If the evidence of Pw12 and Pw15 are eschewed from consideration, the case of he prosecution fails in toto.
45. According to the learned senior counsel, the foremost material relied upon by the prosecution is the confession statements of the accused. But, the confession statements are not voluntary and truthful and therefore they are not admissible in evidence. The confession statements of A1 and A2 were recorded on 16.12.1994 and 17.12.1994 and 18.12.1994 when they were under the custody of the customs officers in customs office, Tuticorin. According to them, they were severely beaten up and involuntary statements were recorded from them. The findings of the trial court recorded in that regard are unexceptional.
46. The learned senior counsel for the respondents has prefaced his submissions to show how the statements recorded from A1 and A2 are involuntary and could not be taken into consideration by referring the leading decision of Supreme Court in Sankaria -vs- State of Rajasthan reported in AIR 1978 SC 1248. The Supreme Court stated while considering the confession statement, the statement must satisfy two tests.
(a) if the statement is perfectly voluntary.
(b) if the first test is satisfied on a true reading, it could be considered as truthful. If both tests are satisfied and where the statement is retracted, the court must find if there is corroboration atleast on general particulars. It is only if all the above three test are satisfied the statements could be relied upon against the accused. This decision of the Supreme Court has been quoted and followed in the decision in State (NCT of Delhi) - vs- Navjot Sandhu (Parliament attack case) reported in 2005 SCC (Cr.) 1715. Therefore, the statements of A1 and a2 have to be tested in the light of the above three principles.
47. In the instant case, the customs officers are not police officers. Hence, the confession statement recorded by them is not hit by the prohibition under section 25 of Evidence Act. Nevertheless, the statements have to be tested under section 24 of Evidence Act. The officers being person in authority within the meaning of section 24 of Evidence Act, the burden of establishing that the statements recorded by customs officers are involuntary is on the accused. However, the burden is very light. An accused is only need to show the circumstances from "which it appears to the court" to have been caused by inducement, threat or promise. This aspect is also emphasized by the Supreme Court in Pyare Lal Bhargava -vs- State of Rajesthan reported in AIR 1963 SC 1094 and also in the decision in state (NCT of Delhi) - vs - Navjot Sandhu reported in 2005 SCC (Cr.) 1715. It is stated that "The expression "appears" connotes that the court need not go to the extent of holding that the threat, etc., has in fact been proved. If the facts and circumstances emerging from the evidence adduced makes it reasonably probable that the confession could be the result of threat, inducement or pressure, the court will refrain from acting on such confession even if it be a confession made to a Magistrate or a person other than a police officer". Another decision is Sevantilal Karsondas Modi -vs- State of Maharashtra reported in AIR 1979 SC 705 on the same point.
48. The evidence in this case has to be viewed in the light of the above position of law. The Sessions Court while arriving at its conclusion that the statements of A1 and A2 are involuntary is well supported by circumstances as well as the evidences given by the defence witnesses.
49. It is also contended by the learned senior counsel for the respondents/accused that while recording a statement of confession in nature under section 164 Cr.P.C., by a Magistrate, the code itself provides series of safeguards. However, there is no safeguard while recording a statement under NDPS Act by the Officers of customs. Therefore, according to him, the statements require to be "closely scrutinised" whether it was voluntarily obtained or not. In a decision of Supreme Court in Francis Stanley @ Stalin -vs- Intelligence Officer, NCB, Tiruvanathapuram reported in 2007 (2) SCC (Cr.) 618 in paragraph 15, it is held that "while it is true that a confession made before an officer of the department of Revenue Intelligence under the NDPS Act may not be hit by section 25 in view of the aforesaid decisions, yet such a confession must be subject to closer scrutiny than a confession made to private citizens or officials who do not have investigating powers, under the Act." This decision is followed in Mohtesham Mohd. Ismail -vs- Spl.Director, Enforcement Directorate reported in 2007 (8) SCC 254. There is also force in this submission made by the counsel for the respondent/accused.
50. There is another startling feature in this case. PW-1 in his cross examination has accepted that two further statements of A1 and A2 were recorded on 04.01.1995 and 12.01.1995 in Central Prison, Madurai and in that both the accused totally denied their involvement in the alleged seizure of Mandrax tablets in seven cylinders at Patel Roadways, Tuticorin. The criticism by the Sessions Court that the prosecution has suppressed these two materials and not marked them in court is also justifiable.
51. The learned Senior Counsel for the respondents in supporting the judgement of the trial court has emphasised the following aspects to show that the statements recorded from the accused are involuntary and have to be eschewed from consideration. A1 and A2 were cited as accused in four cases in C.C.No.113/95, C.C.No.417/95, C.C.No.325/95 and C.C. No.562/98 and both of them were implicated in the cases on the basis of their apprehension on 15.12.1994 at Patel Roadways, Tuticorin and the seizure of documents under Mahazar. For the purpose of convenience and for better appreciation of evidence, it is to be mentioned here that Gnanasekar, Superintendent of Customs, Tuticorin who was instrumental in apprehending A1 and A2 at Patel Roadways, Tuticorin has been examined as PW-1 in C.C.No.113/95 (C.A. 712/99), as PW-21 in C.C. No.417/95 (C.A. 844/99), as PW-2 in C.C. No.325/95 (C.A. 976/99) and as PW-4 in C.C.No.562/98 (C.A.985/99) and he has spoken about the seizure of documents under Mahazar which was marked as Ex.P.24 in C.C. No.113/95 and as Ex.P42 in C.C. No.325/95. The statements of A1 and A2 recorded by Gnanasekar on 16.12.1994 was marked as Exs.P41 and 42 in C.C. No.113/95, as Exs.P90 and 89 in C.C. No.417/95 and as Ex.P37, 38, in C.C. No.562/98. The statements of A1 and A2 dated 17.12.1994 and 18.12.1994 were marked as Exs.P.48 and 49 in C.C. No. 113/95, as Exs.P92 and 91 in C.C.No.417/95, as Exs.P.46 and 47 in C.C. No.325/95 and as Exs.P.41 and 43 in C.C. No.562/98. Thirugnanasundaram, Customs Inspector, Tuticorin who assisted Gnanasekar was examined as PW-30 in C.C. No.113/95 and as PW-16 in C.C. No.325/95. Firstly A1 and A2 have been kept under illegal confinement for over 4 days. It is the case of the prosecution itself that A1 and A2 were apprehended at Patel Roadways at 11.45 a.m on 15.12.1994. They were taken to the Customs Office and kept there in the night. Infact seizure Ex.P24 Mahazar was signed by A1 and A2 on the night of 15.12.1994. Both Pw-1 Superintendent of Customs and another officer of customs Pw-30 both admitted in evidence that the accused were in their custody from 15.12.1994 till they were produced for the purpose of remand on 19.12.1994. There was no explanation, nor could there be any for the prolonged confinement of A1 and A2 in the customs office at Tuticorin. This is more so, when no summons has been issued either under NDPS Act or under customs Act for their appearance before the customs authorities. The three statements from each of the accused were written when they were under such patently illegal custody. The contention that statements of the accused are therefore stamped with involuntariness has force and acceptability.
52. Secondly, there is inherent material to show that the accused were subjected to prolonged interrogation that too in the night time. In both Exs.P48 and 49 which are said to have been recorded on 17.12.1994. The statement begins on 17.12.1994 and ends on 18.12.1994. These dates are mentioned in the statements itself. The prosecution witness Pw-1 & Pw-30 have also accepted the same. It was contended before me that the only logical inference is, the accused were continuously interrogated during night time and statements were recorded. In this regard, serious reliance was placed in the judgments of the constitution bench of the Supreme Court in Kartar Sing - vs- St.of Punjab, reported in 1994(2) JT SC 423 in paragraph 419. The said judgment was followed by A.Packiraj,J., in an unreported judgement of this court in Criminal Appeal No.139/95 dated 26.09.2001. Though the judgment of the Supreme Court on the safe guards to be observed while recording confession statements was in the context of interpreting section 15 of TADA, they are also of general observation where statements of confession in nature are recorded by the officials who are not police officers. The Supreme Court has observed in para 149 that "Equally it is settled law that confession would not be recorded during nighttime or late hours after the accused has been subjected to interrogation by the police officers for 3 or 4 hours and had broken down under the continued interrogation". Thus, the judgments cited on behalf of the respondents clearly apply to the facts of this case. Thirdly, the accused have more than probablised that they were subjected to ill-treatment and were subjected to serious coercion which have no sanction of law. The evidence of Pw-20 in C.C.No.113/95 is relevant in this respect. It is an admitted case that only three persons were taken to the office of customs on 15.12.1994. They were A1, A2 & Pw20. Pw-20 was kept for four days in one room of the customs office while A1 and A2 were kept in the next room and he has deposed that he heard screaming noise. Since, no other person than A1 and A2 were brought for the purpose of interrogation, the screaming noise could have come only from A1 and A2. Though Pw-20 was treated as hostile in C.C. No.113/95, his evidence was not disputed by the prosecution.
53. In this regard, the learned senior counsel also relied on the evidences of Dw1, the Assistant Prison Officer, Central prison, Madurai and Dw2, the prison doctor who has treated the accused from 22.12.1994 to 02.01.1995 in the jail hospital as in-patients. Ex.D1 to Ex.D6 were also marked to prove the injuries and pain found on the accused at the time of their admission in Central prison, Madurai and also their treatment taken there from 22.12.1994 to 02.01.1995.
54. This aspect is probablise nay even establish by the evidence of Dw1 and Dw2 and production of Ex.D1 to Ex.D6. These materials were produced to show that they had physical injuries upon them at the time of remand which are not explainable except on the hypothesis that they were caused when they were under the custody of the customs officers.
55. The analysis of evidence of Dw1 and Dw2 in this regard and notings in the jail records that the accused had contusions on their body and could have been caused when they were in the custody of customs offices clearly go to show that the accused had been coerced to give confession statements. Therefore, the findings recorded by Sessions Court cannot be said to be in any way unacceptable or wrong.
56. The learned special public prosecutor has contended that Dw1 and Dw2 were not reliable witnesses and they have given false evidence in order to support the accused. He further contended that the note Ex.D2 in Ex.D1 was written in a different ink after the original writing was erased. He further contended that Dw2 has given treatment to the accused from 22.12.1994 onwards only and therefore the injuries might have been caused by some other source and not because of the beating of the officers as alleged by the accused. However, it is very pertinent to mention here, that Pw1 in his evidence admitted that after the accused were remanded on 19.12.1994, custody was sought for by filing petition and three days custody was ordered by the Court. He has not mentioned the date of the petition and the date of the order. But the fact is that the accused were remanded on 19.1.21994 and the first fifteen days expired on 02.01.1995. After that, the customs officers could not seek custody of the accused. As per the jail records Ex.D4 and Ex.D6, the accused were in jail hospital as in patients from 22.12.1994 to 02.01.1995. Therefore, it is quite evident that the accused ought to have been taken custody on 20th December 1994 and reproduced before court on 22.12.1994 after the three days custody period was complete. It is the duty of the prosecution to prove that the accused were inside the prison on 20.12.1994 and 21.12.1994 also by letting evidence.
57. In this regard, the argument of the learned Special Public Prosecutor requires to be considered. According to him, the deposition of Dw1, Assistant Prison Officer, Central Prison, Madurai and Dw2, the doctor attached to the jail are not acceptable and the jail records are not reliable due to overwriting. It is submitted that the entry Ex.D2 in Ex.D1 appears to be over writing and in different ink and therefore, it has been brought much later. Secondly it was contended that even though jail authority has noted physical injuries like contusions found on the accused at the time they were admitted to prison after remand, the jail doctor examined them only 3 days later, that is, on 22.12.1994, hence defence witness are not to be accepted.
58. But, on a careful consideration of the documents and the evidence of Dw1 and Dw2, this Court finds that the contention of the learned special public prosecutor cannot be accepted. Both Dw1 and Dw2 are Government Servants. The entries made were in the course of official duties and in a regularly kept register. That the entry Ex.D2 is in different ink and therefore it must be a later addition, made much later is also not acceptable since the entries are made at different times. Entries are made as and when the prisoners are admitted in jail and the entry will be made whoever was in prison during the job at that particular time. Hence, difference in the colour of the ink could not be a factor to discredit Ex.D2 in Ex.D1. The counsel for the accused has explained that after remand they were taken into customs custody on the following morning for 3 days and that is why after they came back to prison at the end of police custody, the doctor examined them on 22.12.1994. Moreover, if the writings are disputed, it is the prosecution which could have sent it for scientific analysis by an expert. But the same was not done. The injuries noted are all shown to have been caused when the accused were in the custody of customs authorities for a period of 4 days. This circumstance taken together with other circumstances pointed out, have been relied upon by the Sessions Court to come to the conclusion that the statements of confessional nature recorded for A1 and A2 in Ex.P41, 42, 48 and 49 as involuntary and therefore require to be eschewed entirely is proper and correct conclusion.
59. The learned senior counsel for the respondents also contended that Pw-1 admitted in his cross examination that photographs of A1 and A2 were taken while they were in their custody. However, the photographs were not produced before the court. It is the contention of the learned senior counsel for the respondents that A1 and A2 were severely beaten up particularly at the foot, that they were unable to stand and they were made to lean against the wall and photos were taken. Because of this reason, the officers have not produced the photos to the court and therefore adverse inference should be drawn against the prosecution. After going through the evidence of Pw1 and Dw1 and Dw2 and considering the other circumstances mentioned above, the contention of the defence counsel appears to be acceptable.
60. However, the prosecution heavily relied upon the statements of A1 and A2 dated 16.12.1994, 17.12.1994 and 18.12.1994 to implicate A1 and A2 in this case seizure at Ganesh Nagar Extension on 25.03.1995 also. Therefore, the retraction in the statements dated 04.01.1995 and 12.01.1995 cannot be ignored. The learned special public prosecutor nextly contended that further confession statements Ex.P94 to Ex.P97 from A1 dated 16.02.1995, 17.02.1995, 18.02.1995 and 20.02.1995 were recorded in prison by Pw22 and also on 08.06.1995 and a statement Ex.P31 was recorded from A1 by Pw2 in central prison to implicate A1 in this case. Similarly, confession statements Ex.P98 and 99 from A2 dated 21.02.1995 and 22.02.1995 and Ex.P34 dated 08.06.1995 were recorded from A2 by Pw2 in central prison to implicate A2 in this case. However, A1 and A2 have completely denied their involvement in the seizure in their statements dated 08.06.1995 recorded under Ex.P31 and Ex.P34. As far as Ex.P94 to Ex.P99 are concerned, Pw22 who recorded their statements came to the conclusion that they were not deposing wholly the right answers and therefore he closed the statements. Therefore, no importance need be given to the statements also as rightly found by the trial court.
61. As far as the statements of A3 to A6 are concerned, it is an admitted fact by Pw3 and Pw1 that they were under the custody of the officers from 30.03.1995 till they were remanded to custody on 02.04.1995. Therefore, for four days A3 to A4 were under the illegal custody of customs officers and DRI officers. During their custody, their photographs were shown to Pw6,Pw7, Pw11,Pw12, Pw13,Pw15 and Pw16 and their signatures were obtained on the photos. This procedure of showing photos to witness for the purpose of identification is strongly disapproved by the supreme court in its decision D.Gopalakrishnan -vs-Sadanand Naik reported in AIR 2004 SC 4965. Therefore, the confession statements of A3 to A6 are not admissible in evidence and implicating A3 to A6 on the basis of the photo identification by the witnesses without conducting identification parade is not acceptable and safe and on that basis this court cannot come to a conclusion that A3 to A6 are guilty and therefore the trial court rightly came to the conclusion that they are not guilty and acquitted them. I do not find any reason to interfere with the findings of the trial court.
62. The finding of the trial court disbelieving the evidence of Pw11, P12 & Pw15 does not call for any interference. Pw12 the owner of house at Trichy where the cylinders were brought there and Mandrax tablets allegedly taken out after cutting open the cylinders, had given statements to the officers under Ex.P21 and Ex.P55. He had specifically stated that he had a written rental agreement with one Babu whose full name and address is not known to him. He had further clearly stated that he torn and had thrown away the rental agreement as his house was subsequently vacated. The same witness Pw12 was later examined and he says that he is voluntarily producing the written rental agreement between his daughter-in-law and Babu. This is unbelievable. It is not the case of the prosecution that there were two rental agreements originally even after one was torn and thrown away the second one was available. The prosecution evidence on these crucial aspects is totally unbelievable.
63. A3 before the court is Nazeer Ahmed Basha @ Basha. If the prosecution case that the said A3 Basha had signed under the assumed name Babu, then, his signature on the rental agreement ought to have been sent to handwriting expert to establish that A3 alone had signed it as Babu. This basic exercise was not done. The evidence of Pw15, Palanisamy is also vague. He does not name A3 and A4 the persons who worked for A3 and A4. From him also three statements Ex.P9, 19, and 58 were recorded on three different occasions. His first statement is very vague and does not identify A3 and A4. No reliance could be placed on their evidence.
64. The prosecution has not produced acceptable evidence to link A1 and A2 with other group of accused A3 to A6. When the arrest of A3 to A6 were made, A1 and A2 were already in prison. Even according to the prosecution, it is not their case that A3 to A6 had dealings with A1 and A2 or with Rajendra Sharma or Anil Bhai. When A3 was interrogated on 18.04.1995, photographs of A1 and A2 were shown to him but A3 has stated that he had not seen these persons and he never met them. Thus, prosecution has not produced any evidence connecting A1 and A2 with seizure of Mandrax tablets at Ganesh Nagar Extension, Tuticorin, concealed between the Agarpathis.
65. In view of the above, the charge of conspiracy u/s 29 of Act, that A1 to A6 conspired for committing offences under the Act in respect of Mandrax tablets seized is not established since there was no meeting of mind as A3 to A6 had not known A1 and A2 at any point of time.
66. In this case, the prosecution has let in evidence about the manufacturing unit namely, Hari Om Engineers, at Chikli, Surat, Gujarat. Only Pw22, B.C. Patel, Superintendent of Customs, Valsad is examined in this regard. According to his evidence, he had inspected the factory at Hari Om Engineers, Chikli, and seized a quantity of Mandrax tablets and some machinery for its manufacture. He had come to Madurai and recorded the statements of A1 and A2 which were marked as Ex.P94 to Ex.P99. But in his evidence he had stated that "At the time of interrogation, I also showed the documents collected by me to A1 and after perusing it he gave that statement. My investigation discloses after recording those statement and connected materials, I came to the conclusion that they are not deposing wholly the right answers". Thus when the Superintendent of Customs himself states that the statements recorded under Ex.P94 to 99 are not true statements, question of relying upon them to convict A1 and A2 cannot at all arise. Further, Pw22 had not produced what documents and materials he had shown to A1 while recording his statement. He had not produced the documents which he had collected and Valsad. Hence, the charge that A1 and A2 had manufactured Mandrax tables at a factory called Hari Om Engineers at Chikli, Surat, Gujarat has not been established at all.
67. The acquittal of the other accused A3 to A6 is also based on proper appreciation of the evidence produced by the prosecution. Infact, A5 in his statement Ex.P41 has stated that he was told that the boxes contained only Agarbathis and he has no knowledge about the Mandrax tablets in the boxes. His statement is only exculpatory. In the above circumstances, the findings of the trial court does not call for interference.
68. This being an appeal against acquitted, unless the findings of the trial court are perverse, highly unreasonable, based on no evidence on record or made in ignorance of relevant evidence on record, this court is not inclined to interfere with the findings of the trial court and will not set aside the order of acquittal.
69. For the reasons stated above, I do not find any ground to interfere with the well considered findings of the Sessions Court. Therefore, the judgment of the trial court in acquitting the accused of all the charges is sustained. In the result, this Criminal Appeal is dismissed confirming the judgement dated 28.5.1999 on the file of the Special District and Sessions Judge, Madurai, in S.C.No.417 of 1995. The material objects concerned in this case shall be confiscated by the Government after the Appeal period is over or Appeal if any is over.
gkv Copy to:
1. The Spl.District and Sessions Judge (NDPS Act Cases) Madurai.
2. The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.