Madras High Court
The Assistant Commissioner Of Customs vs Prem Pratap Singh Sisodia 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. 985 of 1999 The Assistant Commissioner of Customs Head Quarters Preventive, Tuticorin. ... Appellant Vs 1. Prem Pratap Singh Sisodia alias Prem Singh Sisodia alias Prem Pratap Sisodia 2. Anil Bhai Balwant Rai Desai ... 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 C.C.No. 562 of 1998. !For Appellant ... Mr.C.Arulvadivel alias Sekar ^For Respondents ... Mr.B.Kumar, S.C., for Mr.K.Chandrasekar :JUDGMENT
The state represented by Assistant Commissioner of Customs, Head Quarters Preventive, Tuticorin has preferred this appeal against the acquittal of the respondents herein for the alleged offences under sections 8(c) of NDPS Act 1985, punishable under section 22 and 29 of the Act passed by the Special District and Sessions Court (The Narcotic Drugs and Psychotropic substances Act Court) Madurai in C.C.No.562 of 1998.
2. The charges against the respondents who had been arrayed as A1 and A2 before the trial court were that on 12.12.1994, the officers of customs preventive, Tuticorin seized seven chlorine cylinders in which Mandrax tablets were concealed from the godown of Patel Roadways, Tuticorin and on 15.12.1994, A1 and A2 were apprehended in Patel Roadways and statements dated 16.12.1994 were recorded from A1 and A2. They admitted that in addition to 7 cylinders of Mandrax tablets seized at Tuticorin, one more consignment of 7 cylinders were sent to Peenya, Bangalore with fictitious name and address of consignee as M/s. Meenakshi Enterprise, Peenya Industrial Estate Tumkur Road, Bangalore on 30.11.1994 from Saroli branch of RTC and A2 signed in the invoice as G.T.Rana. On that basis, information was forwarded over phone from Customs Office, Tuticorin to Customs Preventive Unit, Headquarters, Bangalore on 16.12.1994. On 17.12.1994, the customs officers searched the premises of M/s.South Eastern Roadways, Bangalore in the presence of witness and found 7 cylinders. The relevant documents pertaining to 7 cylinders were recovered. The address mentioned in the invoice as M/s.Meenakshi Enterprises was found to be false and with the help of gas cutters the 7 cylinders were cut open and found Mandrax tablets in polythene pouches and the test carried out gave positive indication of methaqualone. On the whole 4957 plastic pouches containing Mandrax tablets weighing in all 299.85 kg concealed in the 7 cylinders. The witness were examined C.Ramachandra, cashier of M/s.South Eastern Roadways, Bangalore stated that on 08.12.1994, two persons approached him for taking delivery of the 7 cylinders and the same was not delivered to them because the consignment note was not having any seal of the consignee. One Somushankar Rathod, driver of the lorry stated that the seven cylinders were loaded at Surat on 29.11.1994 by one M/s.MAMA Roadways, Surat and the same were unloaded on 02.12.1994 at RTC South Eastern Godown. Therefore, it is alleged that A1 and A2 admitted in their statements dated 16.12.1994, 17.12.1994 and 18.12.1994 that they conspired in the manufacture, transport and sale of Mandrax tablets and are liable for punishment under section 22 and 29 of NDPS Act.
3. When the charges were read over, they denied having committed any of the offence charged and hence the trial was conducted.
4. On behalf of the prosecution, PW-1 to PW-11 were examined and documents were marked as Ex.P1 to Ex.P70.
5. PW-1, K.S.Srinivasan, Supdt. Customs Preventive Head Quarters, Bangalore, in his evidence stated that on 1612.1994 at about 2.30 P.M. a telephonic message was received by Pw9, Addl. Commissioner of Customs, Bangalore from Pw10 Addl. Commissioner, Tuticorin. As per the message Ex.P1 Mandrax tablets in 7 cylinders were concealed and were lying at Road Transport Corporation Parcel Office, Peenya and the officers along with Pw1 went to the transport company as instructed by Pw11 and search authorization was also given by Pw11. However, Pw1 did not conduct any search because of darkness and posted the officers to guard the premises. On 17.12.1994, Pw1 went to the godown of South Eastern Roadways, Tunkur at 9 a.m. and after showing the search authorization to the staff of the Transport godown, search was conducted and 7 cylinders were found and with the help of gas cutters, in the presence of witnesses the seven cylinders were cut open, found to contain 4957 plastic pouches containing Mandrax tablets in the 7 cylinders totally weighing 2998 kg. The Mandrax tablets and the relevant documents Ex.P4 to Ex.P9 were seized under Mahazar Ex.P3. Statements of C.Ramachandran, Pw3, Narasimharao, Krishnappa were recorded on 18.12.1994 and were marked as Ex.P11, 13, 15 and 17. The report under section 57 was marked as Ex.P18. One Moorthy was examined and a statement in Ex.P20 was recorded on 19.12.1994. Ex.P21 was the letter to post master to furnish the correct address of Meenakshi Enterprises and his reply is Ex.P22. Forwarding memo was Ex.P23 and godown receipt was Ex.P24. On interrogation of Ramachandran of SRC, Bangalore revealed two persons made enquiries about the 7 cylinders. Pw1 admitted that no identification parade regarding A1 and A2 was conducted.
6.PW-2, Chowhan, Customs Inspector, Bangalore has stated that on 23.12.1994 sample packets were received by him and the same were sent to Principal Laboratory, New Delhi.
7. PW-3, Prakash Pandey, Manager, South Eastern Roadways, Bangalore has stated about the search and seizure of documents pertaining to 7 cylinders on 16.12.1994 and 17.12.1994. His statement is marked as Ex.P13.
8. PW-4, K.S.Gnanasekar, Superintendent of Customs Preventive Unit, Tuticorin has stated about the search and seizure of 7 cylinders containing Mandrax tablets at Roadways, Tuticorin on 12.12.1994 and the relevant documents and the seizure of documents from the accused on 15.12.1994 and the documents and Mahazar were filed in C.C.No.113/95. The statements of the accused were recorded on 16.12.1994. They were Ex.P37 and Ex.P39. Since the averment revealed transport of 7 cylinders to Peenya, Bangalore on 30.11.1994 from Surat, the same was revealed to Asst. Commissioner of Customs, Tuticorin and Pw10 by showing the statements. Pw10 in the presence of Pw4 telephoned to Pw9 and conveyed the averment in the statements of A1 and A2 and asked him to take steps. Statements Ex.P41 and Ex.P43 were recorded from A1 and A2 and they were arrested on 18.12.1994 and remanded to custody on 19.12.1994 in C.C.No.113/95.
9. PW-5, P.V.Wankhade, Superintendent of Customs, Preventive at Rathinagiri, Maharashtra has stated that on the basis of the message received from the Customs Office, Bangalore, he examined the owner of the Truck Pw8 and the driver of the Truck Pw7 in which the seven cylinders were transported from Surat to Bangalore. Their Hindi statements are Ex.P49 and 53 and English translations are Ex.P50 and 54.
10. PW-6, D.K.Bansal, Chief Chemical Examiner, Central Revenue Control Laboratory, New Delhi has stated about the receipt of sample packet and the test report is Ex.P36.
11. PW-7, Somu Shankar Rathod, Driver of the Truck who transported the seven cylinders from Surat to Bangalore has stated that he left Surat on 30.11.1994 and reached Bangalore on 02.12.1994 and delivered the goods at R.T.C. Office, Bangalore. His statement is Ex.P53 in Hindi and its English translation is Ex.P54.
12. PW-8, Vilas Muley, owner of the truck in which the 7 cylinders transported from Surat to Bangalore has given a statement in Ex.P49 in Hindi and its English translation is marked as Ex.P50.
13. PW-9, J.S.R.Khating, Addl. Commissioner of Customs, Bangalore states about the Telephonic message from Pw10 on 16.12.1994 and he instructed Pw11 to take action on that basis.
14. PW-10, J.M.K. Sekar, Asst. Commissioner Customs, Tuticorin has stated that Pw4 handed over the statements Ex.P37, 39 of A1 and A2 to him and he has given the telephonic message Ex.P1 to Pw9.
15. PW-11, D.Rengasamy, Asst. Commissioner Customs Preventive, Bangalore has stated about the conveyance of the message by Pw9 to him. He instructed Pw1 to take action on that basis and Pw1 filed report Ex.P18. He filed the complaint Ex.P70 before the civil and sessions court, Bangalore as C.C. No.90/96.
16. When the accused were questioned under Section 313 Cr.P.C with reference to the incriminating materials found against them in thwe evidence of the prosecution witnesses, they denied having committed any offence and their complicity in the case.
17. On behalf of the accused 1 and 2, Dw-1 and Dw-2 were examined and the prison records were marked as Ex.D1 to Ex.D6. 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 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 mentioned 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.
18. 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 made by A1, A2 and 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 Chief Medical Officer and was 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 Chief Medical Officer and was seen by him and was advised to take same line of treatment.
19. The learned Special Judge after analysing the evidence on record and after hearing both sides had acquitted the respondents herein of all the offences charged on various reasons.
20. The learned special public prosecutor contended that the learned special judge has committed grave error in acquitting the accused without properly considering the evidences on record. He has put-forth the following contentions:
(i) The lower court ought to have seen that Pw4 in this case on examining A1 and A2 and recording their statements, got information about the contraband involved in this case and Pw4 in turn has informed his superior officer Pw10 and this has been recorded in Ex.P1. Therefore, section 42 (2) of the Act has been complied with.
(ii) The lower court ought to have taken into consideration of the fact that based upon the confession statements Ex.P41 to 44 of A1 and A2, the seizure was effected on 17.12.1994 at M/s.South Eastern Roadways, Bangalore.
(iii) The evidence of Pw7, the lorry driver who has transported the 7 cylinders from Surat to Bangalore corroborated the statements of A1 and A2 with regard to the sending of the consignment from Surat to Bangalore.
(iv) The confession statements of A1 and A2 are voluntary in nature and the evidence of Dw1 and Dw2 ought to have been rejected since they have given false evidence only in order to help the accused and in Ex.D1, different ink was used to write Ex.D2 after erasing the original writing in Ex.D1 and the accused had not made any complaint to the Judicial Magistrate against the officers at the time of remand and therefore the accused ought to have been convicted on the basis of their confession statements.
21. On the other hand, the learned Senior Counsel Mr.B.Kumar appearing for the respondents/accused would strenuously argue that the prosecution has miserably failed to prove its case and therefore the trial court rightly acquitted the accused from the charges levelled against them.
22. 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.
23. 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.
24. 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.
25. 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.
26. 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.
27. 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.
28. 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.
29. 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.
30. 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.
31. 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.
32. 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.
33. 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.
34. 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.
35. 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.
36. 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.
37. The next contention is that the seizure on 17.12.1994 was effected only on the basis of the information furnished by A.1 and A.2 in their statements dated 16.12.1994. The learned Senior Counsel argued that the seizure was not effected based upon the statement Ex.P37 and Ex.P39 as stated by Pw4, Pw1 and Pw10. The reason given by him cannot be brushed aside lightly. The learned senior counsel for the accused has drawn the attention of this Court by comparing Ex.P1 and Ex.P37 and Ex.P39. A bare perusal of these two documents would prove that what were not found mentioned by A1 and A2 in Ex.P37 and Ex.P39 were mentioned in Ex.P1. In Ex.P1, the description of the cylinders was mentioned as "7. feet long and 2. diameter". This was not stated by A1 and A2 in Ex.P37 and Ex.P39. In Ex.P1 it was mentioned that "The cylinders are lying with M/s.RTC Road Transport Corporation, Parcel service office near Peenya, Bangalore. They also have an office in the city and a godown at Namangal". This averment was not available in Ex.P37 and Ex.P39. Similarly, in Ex.P1, it was mentioned that "the cylinders containing the Mandrax tablets have wooden boards under which the tablets are kept in plastic. Altogether there are 714 such plastic bag." This averment was also not found in Ex.P37 and Ex.P39. Therefore, as rightly pointed out by the learned senior counsel for the accused the alleged seizure on 17.12.1994 at South Eastern Roadways, 4th Main Tumkur Road, Neelamangala, Bangalore was not based upon the statement of A1 and A2. Only in order to implicate or connect A1 and A2 with the seizure of Mandrax tablets on 17.12.1994, Ex.P1 was created as if it was based upon Ex.P37 and Ex.P39. Therefore, this court is of the considered view that the prosecution has failed to prove that A1 and A2 had connection with the seizure on 17.12.1994 and therefore there is no necessity to set aside the acquittal.
38. A bare perusal of the evidence of Pw7, the lorry driver who has transported the 7 cylinders in his lorry from Surat to Bangalore would show that he approached Mama Transport at Surat and enquired any goods to be transported and he was told by Mama Transport Office that 7 cylinders were available for transport to Bangalore. No one from Mama Transport was examined to prove the fact who booked the 7 cylinders to Bangalore. Therefore, the evidence of Pw7 is also not helpful to the prosecution case to establish any contact between the transport of cylinders from Surat with A1 and A2.
39. The evidence of Pw1 does not inspire confidence and the manner in which he conducted the search and seizure, the trial court has rightly rejected his evidence as unbelievable. Firstly, he did not make any attempt to search the godown on 16.12.1994 after he got the instruction from Pw11. He did not even care to ask the staff of the Transport Office the relevant documents pertaining to 7 cylinders. Secondly, he did not inform his superior officers about his decision not to search the godown on 16.12.1994. Thirdly, he did not show the search authorization to the staff of the transport on 16.12.1994 and the purpose of his visit on 16.12.1994 in their godown. Fourthly, he enquired Ramachandra of S.R.C at Bangalore and Ramachandra who told him that two persons made enquiries about the consignment to take delivery of the same. However, no investigation was conducted to find out who the two persons were.
40. The prosecution has marked the letter of Assistant Collector of customs (Preventive), Tuticorin as Ex.P47. It is dated 22.12.1994. This letter was addressed to Additional Collector of Customs, Bangalore. The letter mentions about the sending of photographs of A1 and A2 along with the letter. There is no explanation from the prosecution for what purpose this letter was marked as Ex.P47. Probably they want to show the photographs to some witnesses for identification purpose. However, no one was identifying A1 and A2 as the persons who sent the consignment from Surat to Bangalore.
41. Therefore, the prosecution has not adduced any evidence to prove the charges of conspiracy to manufacture and transport the Mandrax tablets from Surat to Bangalore and the trial court has rightly acquitted the accused from all charges. The prosecution has not established the involvement of A1 and A2 in the seizure at Bangalore.
42. This being an appeal against acquittal, unless the findings of the trial court are perverse, highly unreasonable, based on no evidence or 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.
43. 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 Sessions 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.562 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.