Madras High Court
Karupasamy And Anr. vs State By Superintendent, Customs on 18 February, 2004
Equivalent citations: 2004CRILJ2935, 2004(2)CTC507, 2004(94)ECC306
Author: A.K. Rajan
Bench: A.K. Rajan
ORDER A.K. Rajan, J.
1. This is an appeal filed against the conviction and sentence imposed on the appellants for the offence punishable under Sections 8(c) read with Sections 21 and 28 of Narcotic Drugs and Psychotropic Substances Act, 1985 and Section 135A of the Customs Act.
2. The case of the prosecution is as follows:
On 24.7.1992, on the basis of an information received by P.W.1, he made a search at Melmarudhur; that during such search, the contraband of unit was seized from the accused; that the entire operation was done on the previous intimation given by the authorities concerned; that the contraband was said to have been seized from the haystack of one Ekali, who is the father of A1; that the contraband contained 81/2 kgs. of brown sugar; that the same was seized; that a case was registered and investigation was taken up; that A1 and A2 were arrested; that when examined, A1 gave a confession stating that he has concealed the contraband in the haystack, which was given to him by A2; that therefore, charges were framed against A1 and A2 under Sections 29, 8(c) read with Sections 20(1)(21) of NDPS and Section 135 of the Customs Act.
3. At the time of trial, P.Ws.1 to 6 were examined; Exs.P.1 to P.49 were marked, M.Os.1 to 13 were produced and Ex.D.1 marked.
4. The trial Court, on the basis of the materials, both oral and documentary, found both the accused guilty and convicted each one of them for the offence punishable under Section 8(c) read with Section 21 of NDPS Act and acquitted them under the charges framed under Section 29 of NDPS Act as well as under Section 135 of the Customs Act. No appeal was filed against the acquittal.
5. Learned counsel appearing for the appellants submitted that in this case, there is absolutely no evidence as to the overt act of A2 and the only evidence to prove the case against A2 is the confession given by A1 that A2 handed over the contraband to him and A1 concealed the same in the haystack and except this, there is no other acceptable evidence. The counsel has further submitted that therefore, on the basis of the confession of the co-accused alone, it cannot be said that the charge against A2 has been proved. Hence, the conviction has to be set aside so far as A2 is concerned.
6. Learned Public Prosecutor Mr. Prakash contended that the confession cannot be the sole basis for proving the case of co-accused but the fact that A2 was absconding from the date of seizure and he did not say anything and kept silent when he was examined by the police as well as by the Court. So, this circumstantial evidence will go to prove the guilt of the A2 and hence conviction of A2 cannot be set aside.
7. Learned counsel appearing for the appellants took me through entire evidence adduced before the Court below. P.W.1 the Investigating Officer has stated in the cross examination that he does not know as to who gave the information and he did not also enquire as to who is the owner of the haystack and from where the contraband was seized. In the above circumstances, the counsel submit that there is no evidence to link either A1 or A2. Though there is some evidence to hold that the haystack was on the backyard of the house of the father of A1, that is not sufficient to connect A2 in this case. Except the confession of A1 that A2 gave the contraband to him and he concealed it in the haystack, there is absolutely no evidence against him. It is well settled law that in a case of purely circumstantial evidence, all the links in the chain of circumstances must prove the guilt of the accused. When applying this principle, it is seen that the evidence on record is not sufficient to complete the chain of circumstances, which could prove, without any reasonable doubt, the guilt of A2. As stated already, there is absolutely no evidence except the evidence of A1. Therefore, in so far as A2 is concerned, the evidence available is not sufficient to hold that the charge against him has been proved. The fact that A2 was absconding for a long time cannot be considered as a circumstance against him. The failure to answer question also cannot be held as a circumstance against A2. Therefore, there is no circumstance to connect A2 with the offence. Hence, the findings of the trial Court that A2 was convicted of the offence is not legally sustainable. Hence, the said finding is set aside. Consequently, A.2 is acquitted.
8. So far as A1 is concerned, learned counsel appearing for the appellant contends that the only evidence available against him is the confession given by him and even that was retracted subsequently. There is no sufficient evidence to hold that the charge has been proved against the A1. Even though the confession is retracted, still it is proved that A1 has given confession. In that confession he has clearly stated that he gave the contraband and concealed it in the haystack. Though it is retracted, the retraction is due to ulterior motive and that cannot, in any way, reduce the evidentiary value of his confession corroborating the evidence with the seizure of contraband from the haystack. Therefore, there is sufficient evidence to prove that A1 has concealed 8.5 Kgs. of heroin in the haystack. Therefore, the offence under Sections 8(c) and 20(1)(21) is attracted and proved. Hence, the charge against A1, for which he has been convicted, is proved beyond reasonable doubt and there is no reason to set aside the conviction. Consequently sentence of imprisonment of A1 also cannot be modified.
9. In the result, the appeal against A2 is allowed and the conviction and sentence imposed on him is hereby set aside and he is directed to be set at liberty forthwith. It is represented that A2 is in Central Prison, Palayamkottai. As far as A1 is concerned, this appeal is dismissed and the conviction and sentence imposed against him is confirmed.