Madras High Court
Ponmuthuvel vs The Intelligent Officer on 12 March, 2015
Author: M.Sathyanarayanan
Bench: M.Sathyanarayanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 12.03.2015 CORAM THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN Criminal Appeal (MD)No.208 of 2013 and M.P(MD)No.1 of 2013 1.Ponmuthuvel 2.Pitchai @ Gandhi 3.Murugan 4.Muniasamy @ Kuripatti Muniasamy ... Appellant/A.1 to A.4 Vs. The Intelligent Officer, Narcotic Control Bureau, Chennai - 90. (F.No.48/1/5/2006 N.C.B. Chennai.) ... Respondent/ Complainant Prayer : Appeal filed under Section 374(2) of the Code of Criminal Procedure, against the judgment passed in C.C.No.342 of 2006, dated 13.06.2013, by the learned Additional District and Sessions Judge and Special Judge for EC and NDPS Act Cases, Pudukkottai. !For Appellants : Mr.Gopalakrishna Lakshmana Raju Senior Counsel for Mr.R.Venkateswaran ^For Respondent : Mr.C.Arul Vadivel @ Sekar Special Public Prosecutor for NCB Date of reserving the Judgment : 25.02.2015 Date of delivering the Judgment : 12.03.2015 :JUDGMENT
The appellants are arrayed as A-1 to A-4 in C.C.No.342 of 2006 on the file of the Court Additional District and Sessions Judge and Special Judge for EC and NDPS Act Cases, Pudukkottai. They along with three other accused, were charged for the alleged commission of the offences under Section 8(c) read with Section 21(c) read with Sections 25, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (in short 'NDPS Act').
2. The fourth appellant/A-4, A-6 and A-7 did not appear/were absconding, before the Special Court for quite sometime and hence, the case against them has been split up and tried in C.C.No.27 of 2008 and later on, the fourth appellant/A-4 and A-6 appeared before the Court and therefore, the said accused were tried along with A-1 to A-3 in the present Calendar Case. A-6 died during the pendency of the trial. However, A-7 continues to abscond and hence, C.C.No.27 of 2008 (split-up case) is pending against him.
3. The facts leading to the filing of this appeal, briefly narrated, are as follows:
3.1. P.W.1 is the Intelligence Officer attached to the Narcotic Control Bureau (in short 'NCB') and according to him, the office of NCB at Chennai, has received an information through the land line with regard to the smuggling of psychotropic substance, namely, 'Heroin' by A-6 (since dead) conspired with A-5, A-4 and A-1 to Sri Lanka, between 20.00 hours and 23.00 hours on 18.02.2006. A-1 and A-4 used the vehicle to transport the contraband from Perungulam via, Thamaraikulam to the seashore at Pudumadam. P.W.1 reduced the same into writing and read over to the informant who acknowledged the correctness of the same and submitted the same to his immediate superior, namely, P.W.12. Since P.W.12 was on duty outside the headquarters, P.W.1 contacted him through his mobile phone and informed the said fact at about 17.00 hours on 18.02.2006. P.W.12, on returning from the camp, saw the said report submitted under Section 42(2) of the NDPS Act, marked as Ex.P.1 and recorded about the action already taken on 18.02.2006, based on the said information and signed it on 22.02.2006 at about 09.00 a.m. Thereafter, as per the orders of P.W.12, P.W.1, P.W.12 and another proceeded to Thamaraikulam bus stand and reached the spot at 06.00 p.m., on 18.02.2006.
3.2. P.W.1, as per the orders of P.W.12, called for two witnesses, namely, P.W.3 - Village Administrative Officer of Rettai Oorani and one Bairavan, to act as independent witnesses and they also agreed to the same and they came to the spot and they were introduced to P.W.12 and other officials of NCB and they also effected search of the vehicles coming to Pudumadam seashore. At that juncture, a Minidor vehicle bearing Registration No.TN-65-D-6874 came and it was halted and the party led by P.W.12 introduced themselves and the occupants of the said vehicle were informed that they are going to effect the search and also their rights under Section 50 of the NDPS Act. The occupants of the vehicle stated that they have no objection for the officials themselves to conduct the said search. The occupants of the said vehicle were independently enquired into.
3.3. P.W.14 is the driver of the said vehicle and nearby him, A-1 and A-3 were sitting and the person sitting on the rear side, is A-2. P.W.1 asked the occupants as to whether any narcotic/psychotropic substances are being carried and A-1 responded by saying that the psychotropic substance namely, 'Heroin' is concealed inside two battery boxes used in commerical vehicles and he has also opened it. Inside one battery box, 8 pockets were found and in another battery box, 9 pockets were found and A-1 took it and handed over the same to P.W.12. The samples were drawn from 17 pockets and were assigned markings as Ex.P.1 to P.7 and during the trial, they were marked as M.O.1 to M.O.17.
3.4. The samples from each pocket were drawn and they were given markings as S.1 to S.51 and marked as M.O.18.
3.5. From A-1, a mobile phone and Indian currency of Rs.100/-, a photo and party identity card were also recovered and marked as M.O.19 to M.O.21. A mahazar was also prepared on the spot and the copies of the same were served to each of the four accused. Those mahazars were signed by P.W.1, P.W.12 and two other witnesses and the mahazar was marked as Ex.P.3 and the annexures were marked as Ex.P.4. All the accused were issued with summons under Section 67 of the NDPS Act and were asked to come to the Police Station at Uchipuli on 19.02.2006 and were marked as Ex.P.6 - series. Since P.W.14 - driver of the vehicle pleaded ignorance and that the vehicle was hired by A-1, the vehicle was not seized and his statement was recorded with an undertaking that he shall produce the vehicle as and when required. The samples drawn from the contraband were also sent to the Lab at Chennai and Hyderabad, under Exs.P.7 and P.8 respectively. All the accused came to Uchipuli Police Station and after enquiry, a detailed report, dated 22.02.2006, under Section 57 of the NDPS Act, was furnished to P.W.12 and it was marked as Ex.P.9.
3.6. P.W.12 signed the said statements and the statements of the accused recorded by P.W.4 and P.W.9 were marked as Exs.P.16 and P.34 respectively and those documents were also counter-signed by P.W.12 and the case properties were submitted to the jurisdictional Court at Pudukkottai on 21.02.2006 for the purpose of keeping it in the safe custody and the deposited goods were obtained and were taken to Chennai and it was deposited in the godown maintained by the NCB.
3.7. The contraband after chemical analysis, was found to be the psychotropic substance, namely, 'Heroin' and the reports to that effect have also been submitted by the respective Labs which tested it.
3.8. The Intelligence Officer, on collection of the materials, has charged the accused for the commission of the offences and on appearance of A-1 to A-6, the copies of documents were furnished to them under Section 207 Cr.P.C. and after granting sufficient time and upon hearing the submissions made on behalf of the accused, the trial Court has framed the following charges:
Accused Charges A-1 U/s. 8(c) r/w 21(c) of the NDPS Act.
U/s.8(c) r/w 25, 28 and 29 of the NDPS Act. A-2 & A-3 U/s. 8(c) r/w 21(c) r/w 28 and 29 of the NDPS Act. A-4 U/s.8(c) r/w 21(c), 28 and 29 of the NDPS Act. A-5 U/s.8(c) r/w 21(c), 28 and 29 of the NDPS Act. A-6 U/s.8(c) r/w 21(c), 28 and 29 of the NDPS Act. A-7 U/s.8(c) r/w 21(c), 25, 28 and 29 of the NDPS Act.
3.9. As already stated, A-6 is no more and the charges against him, became abated and A-7 is absconding and the case is proceeded against the remaining accused, namely, A-1 to A-4.
3.10. All the accused pleaded not guilty to the charges framed against them.
3.11. The respondent in order to sustain their case, has examined P.W.1 to P.W.15 and marked Exs.P.1 to P.48 and also marked M.O.1 to M.O.22.
3.12. All the four accused were questioned under Section 313(1)(b) of the Code of Criminal Procedure, 1973, with regard to the incriminating circumstances made out against them in the evidence tendered by the prosecution and they denied it as false.
3.13. On behalf of the accused, no oral evidence was let in and no documents were marked.
3.14. The trial Court on consideration of the oral and documentary evidence, has convicted and sentenced A-1 to A-4, thus:
Accused Conviction Sentence A-1 U/s.8(c) r/w 21(c) of the NDPS Act and U/s.8(c) r/w 25, 28 and 29 of the NDPS Act.
To undergo rigorous imprisonment for twelve years, each and to pay a fine of Rs.1,25,000/-, each, with default sentence of rigorous imprisonment for one year, each. (Total fine amount is Rs.5,00,000/-).
A-2 U/s.8(c) r/w 21(c) of the NDPS Act and U/s.8(c) r/w 28 and 29 of the NDPS Act.
To undergo rigorous imprisonment for twelve years, each and to pay a fine of Rs.1,25,000/-, each, with default sentence of rigorous imprisonment for one year, each. (Total fine amount is Rs.3,75,000/-).
A-3 U/s.8(c) r/w 21(c) of the NDPS Act and U/s.8(c) r/w 28 and 29 of the NDPS Act.
To undergo rigorous imprisonment for twelve years, each and to pay a fine of Rs.1,25,000/-, each, with default sentence of rigorous imprisonment for one year, each. (Total fine amount is Rs.3,75,000/-).
A-4 U/s.8(c) r/w 21(c) of the NDPS Act and U/s.8(c) r/w 28 and 29 of the NDPS Act.
To undergo rigorous imprisonment for twelve years, each and to pay a fine of Rs.1,25,000/-, each, with default sentence of rigorous imprisonment for one year, each. (Total fine amount is Rs.3,75,000/-).
3.15. The trial Court has acquitted A-5 by awarding the benefit of doubt. The sentences of imprisonment were ordered to run concurrently. The trial Court has also granted set off under Section 428 Cr.P.C. 3.16. Aggrieved by the conviction and sentence recorded by the trial Court, vide impugned judgment dated 13.06.2013, A-1 to A-4 have filed the present Criminal Appeal.
4. Mr.Gopalakrishna Lakshmana Raju, learned Senior Counsel appearing for the appellants/A-1 to A-4, made the following submissions:
4.1. Ex.P.1 - report submitted under Section 42(2) of the NDPS Act, by P.W.1 to P.W.12 was not given in writing, but only a telephonic information and hence, P.W.12, in turn, should have submitted a report to his immediate superior, but, he failed to do so.
4.2. The search and seizure of the Minidor vehicle bearing Registration No.TN-65-D-6874, are against the provisions of Section 40 of the NDPS Act.
4.3. Mandatory obligations cast upon the respondent under Section 50 of the NDPS Act have been given a complete go-by and the accused were not informed of their rights.
4.4. Admittedly, the vehicle in which, the contraband was said to have been transported in two battery boxes, has not been seized and the driver of the vehicle, who was examined, was also turned hostile and the same would affect the core of the case of the prosecution.
4.5. The prosecution has not made it very clear as to whether the Minidor vehicle is a three-wheeler or four-wheeler type.
4.6. The said two battery boxes in which, the contraband was said to have been concealed and transported, are of big/larger in nature and it would not have been possible to keep those two battery boxes beneath the seat of the driver.
4.7. The statements of the accused under Section 67 of the NDPS Act, were recorded in Uchipuli Police Station and further, at the time of recording their statements, the police personnel attached to the said Police Station were present and therefore, those statements are inadmissible.
4.8. The other materials said to have been collected during the course of the investigation are of no help and the accused were also not aware of the nature of the contraband which was said to have been transported in the said Minidor vehicle and hence, they cannot be said to be in constructive possession of the said contraband.
4.9. Section 57 of the NDPS Act has also not been followed in letter and spirit and the trial Court having acquitted A-5, at least ought to have awarded the benefit of doubt and acquitted the remaining four accused.
5. The learned Senior Counsel appearing for the appellants, apart from inviting the attention of this Court to the testimonies of the witnesses and exhibits, also placed reliance upon the decision of the Honourable Supreme Court in U.O.I. v. Bal Mukund & Others reported in 2009(2) Crimes 171 (SC).
6. Per contra, Mr.C.Arul Vadivel @ Sekar, learned Special Public Prosecutor for NCB Cases, would contend that on receipt of the information from the informant, P.W.1 reduced it into writing and submitted the same to his immediate official superior, namely, P.W.12 and since he was not available in the headquarters and was on duty, he was contacted through his mobile phone and informed the said fact and P.W.12, on returning from the duty, has noted the same and decided to proceed further and accordingly, constituted a party led by himself, which, went to the spot and mounted surveillance and seized the contraband and it cannot be faulted with. One of the witnesses, namely, P.W.3 was a witness to the search and recovery and being a State Government official, he cannot be said to be a partisan witness. Fair investigation was done and having found that P.W.14 - driver of the vehicle has no role to play as he was not aware of the fact that the contraband has been transported, after thorough enquiry, let off him and the vehicle was also not seized and an undertaking was also obtained to produce the vehicle as and when required and though he turned hostile, the testimony of P.W.3 has fully supported the case of the prosecution with regard to the search and seizure. The accused were issued with summons under Section 67 of the NDPS Act and they voluntarily came forward to Uchipuli Police Station and gave their individual statements which were reduced into writing and their signatures were also obtained and there is no evidence to show that at the time of recording their statements, police personnel belonging to the said Police Station were present. The statements recorded under Section 67 of the NDPS Act have proved and substantiated the involvement of the accused.
7. In sum and substance, it is the submission of the learned Special Public Prosecutor for NCB cases that mandatory provisions contemplated under the NDPS Act have been scrupulously complied with and fair and proper investigation was done and it was also evidenced by the fact that at the time of search and seizure, the vehicle was driven by P.W.14 and he was not arrayed as accused and the vehicle was also returned and the trial Court, on a threadbare analysis of the oral and documentary evidence, has rightly reached the conclusion to convict the appellants/A-1 to A-4 and accordingly, imposed the adequate sentences of imprisonment taking into consideration the fact that the seized contraband is weighing about 17.383 Kgs. i.e. much more than the commercial quantity.
8. The learned Special Public Prosecutor for NCB cases, in support of his submissions, placed reliance upon the following decisions:
(i) Karnail Singh v. State of Haryana (SC) reported in 2009 (2) MWN (Cr.) 385 (SC) : 2009) 3 MLJ (Crl) 839 (SC); and
(ii) Peter v. State reported in (2011) 4 MLJ (Crl) 644.
9. This Court paid it's anxious consideration and best attention to the rival submissions and also perused the oral and documentary evidence and other materials placed before this Court and also original records.
10. P.W.1, on receipt of the information through the land line of the office of NCB at Chennai, on 18.02.2006, about the smuggling of the contraband, has reduced it into writing and prepared a report under Section 42(2) of the NDPS Act, at about 16.30 hours on 18.02.2006 and verified the contents of the same with the informant and has submitted the said report to his immediate official superior, namely, P.W.12. P.W.1 having found that P.W.12 was on duty outside the headquarters, contacted him through his mobile phone and passed on the information through the land line at about 17.00 hours on 18.02.2006. P.W.2, on returning from the duty, has seen the report under Ex.P.1 and made an endorsement at about 09.00 a.m., on 22.02.2006, stating "Seen on return from camp. Action already taken on 18/2/06 based on this information.".
11. It is the submission of the learned Senior Counsel appearing for the appellants that P.W.1 has merely informed the fact on receipt of the information regarding the smuggling of the contraband, through the informant and hence, P.W.12 ought to have reduced it into writing and he, in turn, ought to have informed to his immediate official superior in compliance of Section 42(2) of the NDPS Act.
12. In the considered opinion of this Court, the said submission lacks merit and the trial Court in paragraph 32 of the impugned judgment, has dealt with it elaborately and placed reliance upon the decision of the Honourable Supreme Court in Karnail Singh v. State of Haryana reported in (2009) 3 MLJ (Crl) 839 (SC) and extracted paragraph 16 of the said decision, wherein it has been observed as follows:
"The advent of cellular phones and wireless services in India has assured certain expectation regarding the quality, reliability and usefulness of the instantaneous messages. This technology has taken part in the system of police investigation while growing consensus among the police makers about it. Now, for the last two decades, police investigation has gone through a sea-change. Law enforcement officials can easily access any information any where even when they are on the move and not physically present in the police station or their respective offices. For this change of circumstances, it may not be possible all the time to record the information which is collected through mobile phone communication in the Register/Records kept for those purposes in the police station or the respective offices of the authorized officials in the Act if the emergency of the situation so requires. As a result, if the statutory provisions under Section 41(2) and 42(2) of the Act of writing down the information is interpreted as a mandatory provision, it will disable the haste of an emergency situation and may turn out to be in vain with regard to the criminal search and seizure. These provisions should not be misused by the wrongdoers/offenders as a major ground for acquittal. Consequently, these provisions should be taken as discretionary measure which should check the misuse of the Act rather than providing an escape to the hardened drug-peddlers."
13. In the decision of the Constitution Bench of the Honourable Supreme Court in Karnail Singh v. State of Haryana (cited supra), it has been held that total non-compliance of requirements of sub-sections (1) and (2) of Section 42 is impermissible and further, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42 of the NDPS Act. It has been further held that where the police officer does not record the information at all and does not inform the official superior at all, then also, it is a clear violation of Section 42 of the NDPS Act and where there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case.
14. In the case on hand, the information received from the informant was reduced into writing by P.W.1 and he verified the contents of the same with the informant and having found that his immediate official superior - P.W.12 was on duty and left the headquarters, informed him through mobile phone and P.W.12, on returning from duty, saw it and thereafter, took steps to mount surveillance which resulted in seizure of the contraband.
15. The Honourable Supreme Court in the decision in Karnail Singh v. State of Haryana (cited supra), has also observed that on account of change of circumstances due to scientific advancement, it may not be possible all the time to record the information which is collected through mobile phone communication in the Register/Records kept for those purposes in the police station or the respective offices of the authorized officials in the Act if the emergency of the situation so requires.
16. The evidence available on record has established the fact of compliance of Section 42(2) of the NDPS Act.
17. It is further submission of the learned Senior Counsel appearing for the appellants that Section 50 of the NDPS Act has been given a complete go-by and is very much fatal to the case of the prosecution.
18. The services of P.W.3 were taken as an independent witness and at the relevant point of time, he was the Village Administrative Officer of Rettai Oorani village and in his chief examination, he would depose that at the time of effecting the search of the vehicle, the accused were informed of their rights to have a search in the presence of a Judicial Magistrate or a Gazetted official and they have stated that it can be done by the officials themselves. Subsequently, A-1 was asked as to whether any contraband has been transported and he answered in affirmative and took two battery boxes kept beneath the driver seat of the vehicle and opened it and removed the contraband kept in 17 pockets and handed over the same to P.W.1.
19. It is the submission of the learned Senior Counsel appearing for the appellants that P.W.3 cannot be cited as an independent witness as he was the jurisdictional Village Administrative Officer of Rettai Oorani and normally, he will be cited as witness in any arrest, search and recovery. However, this Court is not in a position to appreciate the said submission for the reason that P.W.3 being the State Government official, has no axe to grind against the appellants/A-1 to A-4 and his testimony coupled with the testimonies of P.W.4, P.W.9 and P.W.12, had also substantiated that as per Section 50 of the NDPS Act, the mandatory duties cast upon the respondent have been complied with in letter and spirit.
20. All the accused as well as P.W.3 were issued with summons under Section 67 of the NDPS Act and accordingly, they appeared in Uchipuli Police Station and gave their statements. The statement of A-2 was marked as Ex.P.26. The statement of A-3 was marked as Ex.P.27. The statement of A-1 was marked as Ex.P.12 and their statements would disclose that the vehicle in which they were travelling was intercepted and the identity of the team of the officials headed by P.W.12 was also made known to them and they were also informed of their rights under Section 50 of the NDPS Act.
21. In Tofan Singh v. State of Tamil Nadu reported in 2013 (12) SCALE 552, the appellant was convicted by the trial Court for the commission of the offences under Sections 8(c) read with 29 of the NDPS Act and sentenced him and on appeal, this Court has dismissed the same and aggrieved by the same, he filed the Special Leave Petition before the Honourable Supreme Court, in which, leave was granted and his application for bail was rejected. At the time of arguing the appeal, the Honourable Supreme Court has thought fit to re-look into the ratio in Kanhaiyalal v. Union of India reported in (2008) 4 Supreme Court Cases 668 and referred the issue i.e., whether the statement recorded by the investigating officer under Section 67 of the Act can be treated as confessional statement or not, even if the officer is not treated as police officer?; Inasmuch as it is intermixed with a facet of the first issue as to whether such a statement is to be treated as statement under Section 161 Cr.P.C. or it partakes the character of statement under Section 164 Cr.P.C. to a Larger Bench. The decision in that regard, is awaited.
22. The law prevalent as on today, is that under Section 42 of the NDPS Act, any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government......, is empowered in this behalf by general or special order to confer with the power of search, seizure and arrest without warrant, etc. The said officer authorised under Section 42 of the NDPS Act, is also given power of seizure and arrest in public places, under Section 43 of the NDPS Act and other powers under Sections 44 to 49 of the NDPS Act.
23. Under Section 67 of the NDPS Act, any officer referred to in Section 42 of the NDPS Act, during the course of any enquiry in connection with the contravention of any provision of the NDPS Act, may,
(a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of the Act or any rule or order made thereunder;
(b) require any person to produce or deliver any document or thing useful or relevant to the enquiry;
(c) examine any person acquainted with the facts and circumstances of the case.
24. The Honourable Supreme Court in Francis Stanly @ Stalin v. Intelligence Officer, Narcotic Control Bureau reported in 2007 Cr.L.J. 1157 (SC), has held that a confession made before an officer of the Department of Revenue Intelligence under the NDPS Act may not be hit by Section 25 of the Evidence Act, 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.
25. In the case on hand, de hors the statements recorded under Section 67 of the NDPS Act, huge quantity of the contraband, i.e. 17.383 Kgs. of 'Heroin', was seized and was also subjected to chemical analysis.
26. In the testimonies of P.W.5, P.W.6, P.W.8, P.W.11 and P.W.13 coupled with Exs.P.25 and P.48 would disclose that the test conducted on the contraband, noted the presence of 'Diacetyl Morphine (Heroin)'. Hence, the submissions made in this regard, is liable to be rejected.
27. It is the vehement and forceful submission of the learned Senior Counsel appearing for the appellants that the nature of the vehicle, namely, whether it is three-wheeler or four-wheeler, has not been established by the prosecution, as P.W.14, the driver of the vehicle was treated as hostile witness and the vehicle in question was not seized and produced before the Court and taking into consideration the nature and shape of the battery boxes used to transport the contraband, it would not have been possible to place the same under the driver seat of the said vehicle and therefore, the search and seizure have been stage-managed to implicate the appellants/A-1 to A-4.
28. No doubt, P.W.14, the driver of the vehicle was let off as the officials found that he was not aware of the transportation of the contraband and in his evidence, has admitted the signatures found in Ex.P.6 as well as the signature found in the statement marked as Ex.P.45.
29. P.W.14, in the cross-examination, would state that the vehicle is a three-wheeler and two battery boxes were found beneath the driver seat and denied the suggestion that it cannot be kept below the driver seat. Therefore, the seized vehicle in which the contraband was transported is a three-wheeler and below the driver seat of the three-wheeler, the contraband has been kept and the said fact was also spoken to by P.W.3 - one of the independent witnesses, coupled with the statements of the accused recorded under Section 67 of the NDPS Act.
30. It is also the submission of the learned Senior Counsel appearing for the appellants that admittedly, the contraband after seizure was taken to the regular Police Station at Uchipuli and according to the prosecution, pursuant to the summons issued to all the accused, they voluntarily appeared and gave the statements under Section 67 of the NDPS Act and at that time, the police personnel were present and hence, it is hit by Section 26 of the Indian Evidence Act.
31. It is the submission of the learned Special Public Prosecutor for NCB cases that no police personnel were present at the time of recording the statements and only for the Para Duty, a police personnel was posted and the judgment rendered by this Court in Peter v. State reported in (2011) 4 MLJ (Crl) 644, has laid down the proposition that mere presence of the police personnel and the statement was made at the Police Station, did not give rise to the inference of any compulsion or coercion and consequently, the statement recorded under Section 67 of the NDPS Act, is not hit in terms of Section 25 of the Indian Evidence Act.
32. This Court finds considerable force in the submission made by the learned Special Public Prosecutor for NCB cases and it is relevant to extract hereunder the paragraphs 32 and 33 of the above said decision:
"32. Here it should also be mentioned that in the said case before the Hon'ble Supreme Court, the confession was later on retracted by the accused. While examining the above question, the Hon'ble Supreme Court had the occasion to look into the elevan Judge Bench of the Hon'ble Supreme Court in State of Bombay v. Kathi Kalu Oghad and Others AIR 1961 SC 1808 : LNIND 1961 SC 259 : (1963) 1 MLJ (Crl) 97, wherein it was inter alia, held that the accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, just being in Police custody when the statement was made would not, by itself, give rise to an inference that the accused had been compelled to make such statement. It was also held that to bring the statement within the prescription of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused any time after the statement had been made.
33. In view of the law laid down by a larger Bench in State of Bombay v. Kathi Kalu Oghad and Others (supra) case, there can no more be any doubt that simply because at the time when confession is made, the accused is in police custody without anything more, it will not give rise to any inference that the accused had been compelled to make those statements. In the case on hand, it is the positive case of the prosecution that at the place of occurrence A1 was given the summon to appear before P.W.1 at the Police Station because it was the nearest Police Station. It is also in evidence that Police Personnel were also present at the Police Station when he gave the statement. Thus, it has been established by the defence that when the statement was made by him, he was in the police station and police personnel were present at the police station. As held by the Hon'ble Supreme Court, that will not give rise to an inference that the first accused was compelled to or coerced to give any confession statement. Therefore, the presence of the police personnel and the fact that the statement was made at the police station will not make the statement inadmissible in evidence in terms of Section 26 of the Evidence Act."
33. The learned Judge has also placed reliance on the decision of the Honourable Supreme Court in Kanhaiyalal v. Union of India (cited supra), to arrive at such a conclusion, but the Honourable Supreme Court has referred the issue to a Larger Bench as per the decision in Tofan Singh v. State of Tamil Nadu (cited supra), however, the decision is yet to be rendered by the Larger Bench and therefore, the law applicable as per the decision in Kanhaiyalal v. Union of India (cited supra), subsists and hence, the statements given by the accused under Section 67 of the NDPS Act, are not hit by Section 26 of the Indian Evidence Act.
34. The evidence let in by the prosecution has substantiated their case that all the accused were aware of the nature of the contraband being transported on a particular day. Section 35 of the NDPS Act speaks about the presumption of culpable mental state and it is relevant to extract the same: "35. Presumption of culpable mental state.- (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
Explanation.- In this section "culpable mental state" includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact.
(2) For the purpose of this section, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability."
35. Section 54 of the NDPS Act speaks about the possession of illicit articles and it reads as follows:
"54. Presumption from possession of illicit articles.- In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of-
(a) any narcotic drug or psychotropic substance or controlled substance;
(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;
(c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or
(d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily."
36. The presumption under the above said Sections are rebuttable one, however, evidence tendered by the prosecution has established the fact of transportation of psychotropic substance, which is more than commercial quantity on the part of the appellants and they have not let in any evidence to dislodge the presumption.
37. It is also the submission of the learned Senior Counsel appearing for the appellants that since A-5 who was similarly footing, was acquitted, the trial Court at least, ought to have awarded the benefit of doubt and acquitted the appellants/A-1 to A-4.
38. It is to be pointed out at this juncture that A-5 was not present at the time of search and seizure and the statements of A-1 to A-3 recorded under Section 67 of the NDPS Act, would not disclose the role played by A-5 and the investigation also did not reveal, in what manner, A-5 was involved in the commission of the offence. The trial Court has also noted that A-5 is a Sri Lankan national, but, his address is not known and he is in custody pursuant to the Prisoner of Transfer Warrant and he was sought to be implicated on the basis of the statement given by A-6 (since dead), under Section 67 of the NDPS Act, in some other case. But, in the present case, his statement under Section 67 of the NDPS Act has not been recorded.
39. As already noted, A-6 died pendency of the trial. The prosecution also did not prefer any appeal challenging the acquittal of A-5. Therefore, the acquittal of A-5 would not come to the aid of the appellants/A-1 to A-4.
40. The decision inU.O.I. v. Bal Mukund & Others reported in 2009(2) Crimes 171 (SC), lays down the proposition as to Sections 42 and 67 of the NDPS Act and there cannot be any difficulty in accepting the said proposition, but on the materials placed before it, this Court is of the view that mandatory provisions under the NDPS Act have been strictly complied with.
41. This Court on a threadbare analysis of the oral and documentary evidence, is of the considered view that the trial Court on an appreciation of the materials placed before it, in proper perspective, has rightly reached the conclusion to convict and sentence the appellants/A-1 to A-4.
42. It is to be pointed out at this juncture that the seized contraband, namely, 'Heroin' is of a huge quantity of 17.383 Kgs. and taking into consideration the nature and gravity of the offence as well as impact on the society, the trial Court has imposed the sentence of imprisonment and fine and this Court finds no reasons or tenable grounds to interfere with the impugned judgment passed by the trial Court.
43. In the result, this Criminal Appeal is dismissed, confirming the conviction and sentence imposed on the appellants/A-1 to A-4, vide judgment dated 13.06.2013, passed in C.C.No.342 of 2006, by the learned Additional District and Sessions Judge and Special Judge for EC and NDPS Act Cases, Pudukkottai. Consequently, the connected Miscellaneous Petition is also dismissed.
Index :No 12.03.2015 Internet :Yes rsb To 1.The Intelligent Officer, Narcotic Control Bureau, Chennai - 90.
2.The Court of Additional District and Sessions Judge and Special Judge for EC and NDPS Act Cases, Pudukkottai.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
M.SATHYANARAYANAN,J.
rsb PRE-DELIVERY JUDGMENT MADE IN Criminal Appeal (MD)No.208 of 2013 and M.P(MD)No.1 of 2013 12.03.2015