Madras High Court
U. Krishnan @ Kittu vs State By : Superintendent, Customs ... on 18 March, 2002
Equivalent citations: 2002CRILJ2887
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
JUDGMENT M. Karpagavinayagam, J.
1. U. Krishnan alias Kittu, the appellant herein was convicted under Section 8(c) read with 21 of the N.D.P.S. Act and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/-, in default to undergo an additional imprisonment for 3 years. This conviction and sentence is the subject matter of challenge before this Court in this appeal.
2. The short facts leading to conviction could be summarised as follows:-
"(a) Smt.Gladys Lily, P.W.1, the Superintendent of Central Excise, Customs Preventive Unit, Nagercoil received the information on 16.9.1994 that one Krishnan alias Kittu of Radhapuram would be arriving near Antony Church on the eastern side seashore of Idinthakarai village with a bag containing about 10 kgs. of heroin in order to smuggle the same to Sri Lanka. The information was recorded under Ex.P1 by P.W.1 at about 9.00 P.M. After sending the said information to the superior officials, P.W.1, the Superintendent, P.W.2, the local mahazar witness along with other officers went to the spot.
(b) Near seashore in Idinthakarai village at about 2.30 A.M. on 17.9.1994, the appellant/accused was found sitting on the eastern side of the Church. He was having a bag and a torch light with him. On interrogation, the accused revealed his name and admitted that he was having the bag containing heroin in order to hand over the same to a person who comes from Sri Lanka through boat. Then, the officers examined the bag in the presence of P.W.2 mahazar witness and the officials and it contained four plastic bags, one inside the other. After removing all these plastic bags, the officers finally found out five polythene covers. While it was opened, it was found to contain brown powder. When it was weighed, the same was found to be 8.1 kgs. The mahazar Ex.P2 was prepared after seizure of the articles, bags and contraband. Then, the accused was taken to the Office of the Customs Preventive Unit, Nagercoil.
(c) On 17.9.1994, he gave a written statement to P.W.1 stating that he had been acting as a carrier of narcotic drugs from Madras to Idinthakarai village and also in loading the narcotic drugs into Sri Lankan boats, which reached at the Idinthakarai Coast regularly for the past three months. Then, he was arrested and produced before the Court along with the remand application and contraband.
(d) The samples were deposited into Court. As per the Court's direction, the contraband drug was sent for chemical analysis. P.W.3 Chemical Analyst analysed the same and sent a report saying that the brown powder was Diacetyl Morphine, namely heroin. On the basis of these materials, P.W.1 Superintendent of Central Excise filed a complaint.
(e) During the course of trial, P.Ws.1 to 3 were examined, Exs.P1 to P13 were filed and M.O.1 to M.O.4 were marked. On the side of the defence, D.W.1 was examined.
(f) The accused in the statement under Section 313 Cr.P.C., stated that a false case was foisted against him and the real culprit was allowed to escape and nothing was seized from him and he was taken to the Customs Office not from the Idinthakarai Coast, but from his house at Thiagarajapuram.
(g) The trial Court on considering the evidence available on record, found the accused guilty for the offence under Section 8(c) read with 21 of the N.D.P.S. Act and sentenced him there under."
3. Mr.V.Padmanabhan, the learned counsel for the appellant, while assailing the judgment impugned, would contend that the conviction and sentence is illegal, in view of the irregularities in the search, the discrepancies in the evidence adduced by the witnesses and also violation of the various mandatory provisions under Sections 100, 165 Cr.P.C. and Section 50 of the N.D.P.S. Act.
4. He would file six typed sets containing several judgments of this Court and the Supreme Court to substantiate the plea supporting his defence. Besides that, he also filed Xerox copies of nine judgments separately mainly for substantiating the grounds of defective investigation and the discrepancies in the evidence. He also filed a memorandum of arguments mainly pleading the violation of Section 50 and referring about the various judgments of the Supreme Court holding that Section 50 is mandatory. He also filed a separate typed set giving details of the discrepancies and contradictions regarding the number of bags seized from the accused, which contained the contraband drug.
5. On the other hand, the learned counsel appearing for the respondent would submit that already the erstwhile counsel Mr. Rajamanicakam appeared for the respondent had filed a written submission and the same can be considered by this Court. He would further point out that Section 50 would not apply to this case, as it is not a personal search and the discrepancies pointed out by the counsel for the appellant are not really the discrepancies and even assuming that there are some discrepancies, those would not affect the credibility of the evidence of P.Ws.1 and 2.
6. During the pendency of the appeal,the appellant filed an application in Crl.M.P.No.4616 of 2000 requesting this Court to order that M.O.1 (Exs.P7 and P8) may be sent to the Chemical Analyst for second analysis in order to find out whether the same is heroin or not.
7. I have given my anxious consideration to the respective submissions and also gone through the records.
8. Though a cartload of authorities have been cited by the counsel for the appellant, I do not propose to refer to those decisions, since I feel that it is unnecessary, as we are only concerned with the relevant points that have been raised by the counsel for the appellant. In the same way, the counsel for the respondent in the reply submission equally referred to a number of judgments of this Court as well as the Supreme Court, probably to show that he would also be able to cite a number of relevant and irrelevant authorities covering all aspects of the various provisions of the N.D.P.S. Act.
9. As I stated earlier, the number of judgments referred to in the reply submission are very many which deal with the various general provisions of Cr.P.C. and various sections of the N.D.P.S. Act. It would be unnecessary to refer to all the judgments. It would be proper to refer to some of the judgments cited by both in order to deal with the specific points raised by the counsel for the appellant.
10. Before dealing with the points, let us recapitulate the short facts in this case.
11. P.W.1, the Superintendent of Central Excise received information about the appellant dealing in smuggling of heroin to Sri Lanka at about 9.00 P.M. on 16.9.1994. The said information was recorded under Ex.P1. Thereafter, she left along with the officers to the spot. On the way, at Nagercoil, she procured two witnesses P.W.2 Jayson and another. All of them went to the seashore at about 2.30 A.M. on 17.9.19194. At that time, they found the accused sitting in the seashore with a torch light and a bag. Since the details in the information Ex.P1 tallied with the identity of the accused person, he was interrogated. He stated that he was having a bag containing the contraband-heroin and he was waiting for a boat for loading the same, which would take it to Sri Lanka.
12. Thereafter, the gunny bag which he was carrying was searched. Inside the gunny bag, a plastic bag was found, which was pasted with the tape. When it was opened, it contained three plastic bags similarly pasted. After removing the last bag, it was found that it contained five polythene packets. The four packets were big and one packet was small. Each packet was containing brown powder. The four polythene packets were weighed. It was found to be 2 kgs. of each and fifth polythene packet was weighed and it was found to be 100 grams. The total worth of the contraband was Rs.16,20,000/-. Thereafter, all the plastic bags and gunny bag were seized under the mahazar Ex.P2. The polythene packets were sealed and two samples were taken from each of the polythene packets. The mahazar was signed by P.W.2 and another. It was written by one Natarajan, the Inspector under the supervision of P.W.1. P.W.1 also signed in the said mahazar. The copy of the same was handed over to the accused. The accused also signed in the mahazar. Thereafter, he was taken to the Customs Preventive Unit Office at Nagercoil.
13. On 17.9.1994 he himself wrote a confessional statement and handed over to P.W.1. The confessional statement is Ex.P3. The same was signed by the accused and also attested by the witnesses including P.W.2. Then, P.W.1 prepared Ex.P5, the report under Section 57 and sent it to the Assistant Collector of Customs on the same day. Then, she sent a remand application Ex.P6 to the Court along with Form 95 Ex.P7. As per the orders of the Court, the contraband was produced before the Special Court on 19.9.1994. Thereafter, the samples were sent to P.W.3 through a requisition Ex.P10. After analysis, P.W.3 sent a report Ex.P11 stating that the contraband was heroin.
14. Firstly, it was contended that Section 50 of the Act has been violated. There is no basis for this contention. As rightly pointed out by the counsel for the respondent, this is not a personal search, but it is only a search conducted on the bag, which the appellant was having in possession.
15. It is held by the Supreme Court in Kalema Tumba's case JT 1999(8) S.C.283 that when the bag which the accused was having was searched and search was not conducted on the person of the accused, Section 50 would not get attracted. In this case, the search was not on the person, but only on the bag and therefore, Section 50 would not apply to this case.
16. The counsel, ultimately, instead of concentrating on Section 50, would strenuously argue on the point that the investigation was faulty and there are various discrepancies with reference to the seizure. He cited the decisions in JAMUNA v. BIHAR STATE OF U.P. v. HARI MOHAN (A.I.R.2001 S.C.142), BAHADUR SINGH v. STATE OF M.P. (2002 S.C.C.(Cri.)172), JAGDISH v. STATE OF M.P. (I (2002) SLT 31), BHOLA RAM KUSHWAHA v. STATE OF M.P. (2001(1) S.C.C. 35), RATAN LAL v. STATE OF M.P. (I (2002) C.C.R. 23(SC), VATSALA v. STATE OF KERALA (1994 CRI.L.J.1 (SC), STATE OF HARYANA v. VIKRAM SINGH (I (2002) SLT 361) and STATE OF H.P. v. FRED ROBINSON (I (2002) CCR 32).
17. On going through the decisions cited by the counsel for the appellant, the Supreme Court found the evidence of the witnesses uncredible and search and search was not in accordance with law. The facts of those cases would not apply to the present case, in view of the fact that P.W.1's evidence is sufficiently corroborated by P.W.2, a mahazar witness and all the procedures, which are to be followed under this Court have been correctly followed during the course of investigation.
18. P.W.1 is a Gazetted Officer. Even though Section 41(2) of the Act would apply to her, she has recorded the information and sent it to the superior officer, the Assistant Collector at about 9.00 P.M. itself. She went to the spot, recovered the contraband from the bag which was in possession of the accused and seized the contraband with large quantity of heroin weighing about 8.100 grams and immediately, on the same day, the report under Section 57 was sent by P.W.1 to the superior officer, namely the Assistant Collector of Customs.
19. Similarly, the contraband was produced before the Court without any delay and on the basis of direction from the Court, he sent the contraband sample for analysis and P.W.3 Analyst analysed the same and sent a report Ex.P11 without any further delay stating that the sample was heroin. Under those circumstances, I am unable to find any defect in the manner of investigation.
20. On the other hand, Ex.P-3, the statement given by the accused on the same day, i.e. on 17.9.1994, in his own handwriting would give the wealth of details about his involvement in the smuggling of heroin from Idinthakarai Coast to Sri Lanka by loading the same into the boat.
21. Nothing has been elicited from P.W.1 that she was inimically disposed of towards the accused. Similarly, P.W.2 who belongs to nearby village was also procured as a witness by P.W.1 at Nagercoil Bus Stand and he also deposed by fully corroborating the evidence of P.W.1 regarding the search and seizure. He would also speak about the written confessional statement given by the accused to P.W.1.
22. The main point urged by the counsel, as indicated above, is that there are discrepancies and contradictions regarding the nature and number of bags from which contraband drug was seized. On going through the entire evidence of P.Ws.1 and 2 and the records, I do not find any major discrepancy.
23. It is the case of the prosecution that when P.W.1 and others went to the spot, the accused was sitting in the seashore with a plastic white gunny bag. After interrogation, the gunny bag was searched and it was found to contain three plastic bags, one inside the other. When they were removed one after another, the last bag contained four big polythene packets and one small polythene packet. Each big packet was found to contain 2 kgs. of brown powder and small packet was found to contain 100 grams of brown powder. This is mentioned in all the relevant exhibits.
24. P.Ws.1 and 2 both would refer to gunny bag, which contained all the other plastic bags. P.W.2 would admit that there is no writing on the plastic bag. But, the reading of the entire portion of his evidence would show that the writings were made only on the plastic bag and not on the gunny bag. Furthermore, all these bags were seized and marked as M.O.1.
25. Under those circumstances, there is no reason to hold that there are discrepancies with reference to the nature of the gunny bag and the number of plastic bags, kept concealed inside the gunny bag.
26. On perusing the evidence of P.Ws.1 and 2 in chief and cross, it is obvious that their evidence is in consonance with Ex.P2 mahazar, Ex.P5 report and Ex.P6 remand application. It may be true that in Form 95 Ex.P7, it is mentioned that heroin (brown sugar) weighing about 8.05 kgs. This is purely a mistake as explained by P.W.1, since the remand application, which was sent along with Form 95 would correctly contain the weight of the heroin as 8.1 kgs. Therefore, there is neither contradiction nor discrepancy as pointed out by the counsel for the appellant.
27. On the side of the defence, D.W.1 Sivan, the friend of the appellant was examined. According to him, on 16.9.1994 at about 9.00 .M. when the appellant and D.W.1 were sitting in the Kandasamy's house along with one Nathan and Sivanadaintha Perumal, the Superintendent of Central Excise along with the officers came to the house and beat the appellant and took him forcibly. But, in the cross-examination, he would admit that with reference to the act of the officers in forcibly taking the appellant from the house of Kandasamy, no report was sent either to the Police Officers or to the Customs Officers. When P.W.1 was cross-examined, though it was suggested that the accused was arrested by P.W.1 when he was at the house of Nathan and Kandasamy at Thiagarajapuram, no suggestion was made that D.W.1 Sivan also was present at that time.
28. Under those circumstances, we cannot place any reliance on the case of the defence as well as the evidence of D.W.1. Consequently, the prosecution case has to be held to be proved.
29. In view of the reasonings given by the trial Court for convicting the accused for the offence referred to above, which are valid, I do not find any merit in the appeal.
30. As in my view the materials available on record would clearly show that the contraband drug, which was seized from the appellant was sent to P.W.3 in the light of Ex.P7, I do not find any valid ground to entertain the application for sending to the Chemical Analyst for second analysis. Therefore, Crl.M.P.No.4616 of 199 is dismissed.
31. As indicated above, the appellant has been sentenced to undergo R.I. for 10 years and to pay a fine of Rs.1,00,000/-, in default to undergo R.I. for 3 years. It is stated that the appellant is a Diploma-holder in Engineering and therefore, some mercy can be shown to him.
32. The imposition of 10 years imprisonment and the fine of Rs.1,00,000/-, the minimum punishment, cannot be reduced. However, this Court feels that there may be reduction in respect of the sentence in default clause. Therefore, in the event of failure to pay the fine amount of Rs.1,00,000/-, the appellant has to undergo additional imprisonment for six months.
33. With the above modification of the sentence in default clause, the appeal is dismissed in other respects.